Rights of the Unborn in the UK and EU - Essay Example

Abortion is an important issue in the UK. Teenage pregnancy rates in Britain reached 41.5 per 000 girls age 15-17 in 2006 the Guardian reported. Ofthose pregnancies, 46 percent ended in abortion. The Morning After Pill was made accessible to girls as young as 12 in over the counter sales, as well as a government decision to reduce sales tax on the drug. (The Guardian, September 15, 2006). The Abortion Act 1967 is the law governing abortions in England, Scotland and Wales. Abortions can legally be performed under certain conditions. The first condition is that continuing with the pregnancy involves a greater risk to the physical or mental health of the woman, or her existing children, than having a termination. Abortion of up to 24 weeks is allowed if there is a substantial risk that the child when born would suffer "such physical or mental abnormalities as to be seriously handicapped. The second condition is that an abortion must be agreed by two doctors and carried out by a doctor in a government-approved hospital or clinic. British Laws on Abortion The right to life of the unborn was historically protected by British laws on abortion. The English common law did not prosecute for abortions performed before quickening. In 1803, with Lord Ellenboroughs Act, Parliament enacted statutes overriding this relatively lenient stance (Potts Diggory, and Peel 1977). In 1861 Parliament passed the Offences against the Person Act. Section 58 of the Act made abortion a criminal offence, punishable by imprisonment from three years to life even when performed for medical reasons. Two laws, the Infant Life Preservation Act 1929 and Abortion Act of 1967 provided the exceptions to this 1861 Act. In 1929, the Infant Life Preservation Act amended the law stating it would no longer be regarded as a felony if abortion was carried out in good faith for the sole purpose of preserving the life of the mother. The Act made it illegal to kill a child capable of being born alive, and enshrined 28 weeks as the age at which a fetus is presumed to be viable. The Act allowed a doctor to perform an abortion legally if he/she was satisfied that the continuance of the pregnancy was liable to endanger the health of the expectant mother. In 1938, the Bourne case unfolded. The Bourne case concerned a young woman was gang raped by a group of soldiers and became pregnant. Dr Alec Bourne agreed to perform an abortion for her and was subsequently prosecuted. The judge agreed that forcing her to continue with the pregnancy would have been tantamount to wrecking her life. This case set a legal precedent for performing an abortion to preserve a woman’s mental health. British Debates on Abortion In the British unwritten constitution, Parliament is supreme; therefore abortion policy is the responsibility of the national executive and legislature. Parliament enacts statutes and the Ministry of Health sets regulations for private clinics and runs the NHS, which provides public abortion services. Abortion is, however, a peripheral issue to the powers-that-be (Cohan 1986). The British political process holds that abortion is primarily an issue of morality and even religious conviction. The majority party steadfastly refuses to take a leadership role in abortion debates, thus allowing the members of parliament to vote their consciences rather than respond to the party whips (Millns and Sheldon 1998). The Legalization of Abortion in the UK Survival," according to Jack Donnelly and Rhoda Howard ( 1988:217) is the "prerequisite to all other human rights." It includes not only the right to life but also those rights that sustain life, such as the rights to an adequate standard of living and health care. The rights of the unborn are protected by the states. Historically, laws were promulgated to promote the rights of the unborn. Five international laws govern the protection of the rights of the unborn child: the UN Declaration of Human Rights, the Convention on the Rights of the Child, the American Convention on Human Rights, the European Convention of Human Rights and the International Convention on Civil and Political Rights (ICCPR). For example, Article 6 of the Convention of the Rights of the Child states: a.) States Parties recognize that every child has the inherent right to life; and, b.) States Parties shall ensure to the maximum extent possible the survival and development of the child. The initial Polish draft of Article 1 of the Convention of the Rights of the Child defined the child as "every human being from the moment of his birth to the age of 18 years unless, under the law of his state, he has attained his age of majority earlier" (UN CHR, 1980c: 2 ). This approach to the question of when life begins was consistent with the terms of the International Covenants on Human Rights and the European Convention on Human Rights. For instance, Article 4 (1) of the American Convention on Human Rights establishes the obligation of the states parties to protect the right to life "in general, from the moment of conception." The 1959 Declaration of the Rights of the Child stipulates that children should have particular care and assistance before as well as after birth. The rights of the unborn are also protected by the ICCPR. The basic obligations of contracting parties with respect to the right to life are contained in Part II of the ICCPR, viz. Articles 2-5. By Article 2(1), the contracting parties undertake to respect and to ensure all of the rights recognized by the ICCPR. The term respect entails negative obligations, such as that not to torture individuals. The word ensure indicates that the ICCPR also imposes positive obligations requiring parties to take action to protect human rights. Examples cover a legal regime that will safeguard the family (Article 23). Positive legislative or administrative sanction is called forth to protect individuals against interferences with their rights by public officers and private individuals. By Article 2(1) a contracting party undertakes to respect and to ensure the ICCPR rights of all individuals, regardless of nationality. Article 2(1) applies to the collective right of peoples to self-determination. This means that a contracting partys obligations extend to all individuals within its territory and subject to its jurisdiction. Under Article 2(3) a party undertakes to ensure that an individual whose ICCPR rights are violated has an effective remedy in national law. The remedy is provided notwithstanding that the violation has been committed by persons acting in an official capacity, may be made available by the competent judicial, administrative or legislative authorities. As this wording indicates, it need not be a judicial remedy, provided that it is effective, although by Article 2(3) (b) a party does undertake to develop the possibilities of judicial remedy. Under Article 6 of the Convention of the Rights of the Child, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The right to life is the most basic and fundamental of all human rights. The non-observance of the Article 6 guarantee will render all other human rights devoid of meaning. The Human Rights Committee of the convention affirms that the Article encompasses a negative right to life against the state party, as in a right not to be arbitrarily or unlawfully killed by state agents so that a state must adopt measures to increase the general enjoyment of this right. Positive measures include those to deter and punish unlawful taking of life. For example, states should take specific and effective measures to prevent disappearances of individuals. These disappearances often result in arbitrary deprivation of life. States should adopt appropriate socio-economic policies to promote and foster life. Article 25 of the United Nations (UN) Declaration of Human Rights states: (1) “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” Another argument against abortion is that the unborn child is important. A United Kingdom (UK) law shows that the welfare of an unborn child is taken into considerations when the mother undergoes treatment. The child should be born in protected environment. Moreover, the unborn child has a right to a father and mother. Section 13(5) of the Human Fertilisation and Embryology Act 1990 (UK) directs that as a condition of licensing [a] woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment and of any other child who may be affected by the birth. Moreover, the primacy of life is upheld in legal provisions. Section 29(7)(b) of the Infertility (Medical Procedures) Act, 1984 (Vic) instructs the Standing Review and Advisory Committee to "ensure that the highest regard is given to the principle that human life shall be preserved and protected at all times." The final argument is that the law must protect the weak and helpless. The unborn child is weak and unable to fend for itself. The baby needs a father and mother to protect her/him. In addition, an unborn child is hardly aggressive or possesses any possibility of causing harmful aggression to its mother. An unborn child cannot cause any harm to its own mother. An unborn child is formed based on the previous decision of a mother to get pregnant. The legalization of abortion in the UK beginning in the 1960 through the Abortion Act and its reinforcement legislation in recent times through the Fertilisation and Embryology Act of 1990 has seriously impeded the right to life of the unborn child. Whereas before, it was difficult to get an abortion, nowadays, any danger to the pregnant woman’s health with the advice of the doctor will enable one to obtain an abortion. Abortion on demand is granted very easily. This can be seen in the increase of reported abortions in the UK at 1 abortion for every 10 pregnancies. Arguments for Abortion Abortion has its useful arguments in some philosophers. John Stuart Mill believed that. to bring a child into existence without a fair prospect of being able, not only to provide food for its body but instruction for its mind was a moral crime, against the unfortunate offspring and against society (cited by Carey 1991, p.28). The question as to how society should deal with undesired pregnancy and unwanted children, healthy or otherwise, is a contentious area. The first argument for abortion is that the unborn child has a right to be born without disability. Section 1(1) of the UKs 1967 Abortion Act allowed termination of a pregnancy at any time if there was a significant risk of the baby being born seriously disabled. Under other circumstances, an abortion has to take place during the first six months of the pregnancy. The second argument for abortion is that an unborn child is not a person under UK law. An unborn child has no legal personality until birth. The basic position in relation to the legal status of the unborn child is circumscribed by what is known as the “born alive” rule. This rule ordains that a person cannot be held responsible for injuries inflicted on a foetus in utero unless and until it is born alive. Once, the baby is born alive, then it can possess all its rights. In R v Tait [1990], the ruling affirmed that the threat to kill the unborn child of a pregnant woman not a threat to kill a third person within meaning of the Offences against the Person Act 1861.The foetus not a third person distinct from its mother. The major implication under English law is that, not being a person, a foetus cannot possess its own independent legal rights. The third argument for abortion is self defense. A mother can get an abortion to defend herself from the danger to her mental or physical health that continuing with the pregnancy would cause. The other threats are damage to family, damage to career prospects, damage to financial prospects and damage to plans for her life. Abortion and the European Union The European Union (EU) is a basic charter that binds EU institutions and member states at a national level. As there is no EU law on abortion the charter would not apply in this case. An EU citizen denied an abortion in her own country can freely travel to a member state where it is legal.Each EU state has its own national laws, which vary considerably in detail with regard to the upper limit as to when a pregnancy can be terminated.Only three of the EUs 27 member states outlaw abortion: Poland, Ireland and Malta. However, the EUs open borders and guaranteed freedom of movement permit women living in countries with restrictive policies or outright bans to travel abroad to receive an abortion. The European Parliament will not make abortion a legal right across the European Union as it would be seen as undemocratic. Harmonizing abortion national laws only serves to antagonize the public towards the EU. CONCLUSION There are multiple arguments for and against abortion in the UK. However, the right to life has been historically protected by state parties with appropriate legislation. The rights of the unborn are protected by the states. Historically, laws were promulgated to promote the rights of the unborn. For example, Article 6 of the Convention of the Rights of the Child states: a.) States Parties recognize that every child has the inherent right to life; and, b.) States Parties shall ensure to the maximum extent possible the survival and development of the child. The Offences against the Person Act Section 58 of the Act made abortion a criminal offence, punishable by imprisonment from three years to life even when performed for medical reasons. The legalization of abortion in recent times has effectively removed that protection. Infant Life Preservation Act 1929 and Abortion Act of 1967 provided the exceptions to this 1861 Act. The arguments for abortion insist on the welfare of the mother, the rights of the unborn child born without disability and the concept that an unborn child is not a person. Several international laws govern the protection of the rights of the unborn child: the UN Declaration of Human Rights, the Convention on the Rights of the Child, the American Convention on Human Rights, the European Convention of Human Rights and the International Convention on Civil and Political Rights (ICCPR). The future shape of the abortion debate will be focus on term limits of abortion and assisted care reproduction. Works Cited Cohan, Alvin (1986). Abortion as a Marginal Issue: The Use of Peripheral Mechanisms in Britain and the United States, in J. Lovenduski and J. Outshoorn (eds), The New Politics of Abortion. London: Sage. Pages 20-24. Harris, David and Sarah Joseph. (1995). The International Covenant on Civil and Political Rights and United Kingdom Law. Oxford: Clarendon Press. Pages 3-7, pages 155-156. LeBlanc, Lawrence. (1995). The Convention on the Rights of the Child: United Nations Lawmaking on Human Rights. Lincoln, NE: University of Nebraska Press. Pages 65-67. Millns, Susan and Sheldon, Sally (1998). Abortion, in P. Cowley (ed.), Conscience and Parliament. London: Cass. Pages 20-21. Nowak, M., UN Covenant on Civil and Political Rights: CCPR commentary (Kehl, 1993),104. Page 4. Pasqualucci, Jo. (2003). The Practice and Procedure of the Inter-American Court of Human Rights. Cambridge:Cambridge University Press. Pages 352-353. Potts, Malcolm, Diggory, Peter, and Peel, John (1977). Abortion. Cambridge: Cambridge University Press. Page 15. Reid, M. (1992). Abortion Law in Ireland after the Maastrict Referendum, in A. Smyth (ed.), The Abortion Papers. Dublin: Attic Press. Pages 15-16. Stetson, Dorothy. (2001). Abortion Politics, Womens Movements, and the Democratic State: A Comparative Study of State Feminism. London: Oxford University Press. Pages 135-138. Hinsliff, Gaby. “Fury over fast-track abortions”. The Observer, July 7, 2002. Page 3. International Treatises UN Declaration of Human Rights International Convention on Civil and Political Rights European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, Rome, 4 November 1950. Read More