Palabras clave: induced abortion, beginnings of human life, status of embryo, laws and statutes

Introduction

Voluntarily induced abortion is an enduring controversial issue unceasingly under discussion and debate, with a tendency towards either liberalization or revision of current legislation, as was recently illustrated by Spanish government’s intend on tightening the existent 2010 law, an initiative soon dropped because it appeared politically inopportune. The Chilean Parliament recently began debate on a bill to regulate the decriminalization of voluntary abortion based on three “causes”. This initiative was not preceded by a serious exploration of public opinion nor a substantive academic deliberation that might have helped clarify what up to the present have been intuitive or doctrinaire rather than reflected stands. Numerous publications in the media, and unyielding contentiousness at all levels have stiffened antagonistic positions unwilling to compromise or agree.

Opposition between pro and anti-abortion is artificial. It is generally agreed that abortion is an undesirable practice that provokes social uneasiness. Limited tolerance has led to decriminalization and support for public policies aimed at reducing clandestine procedures by way of education, dissuasion and allowing, if the decision to abort persists within lawful limits, to intervene safely. The distinction pro/anti is not only improper, it also carries the inadequate imputation that an agenda supporting totally unrestricted abortion exists [1, p238].

The antagonism between pro-life vs. pro-choice is contentious. To reject abortion under the pro-life banner does not imply having an exclusive defense of life, for every living being, as Spinoza has it, carries a conatus or inherent tendency to survive. To defend autonomy, on the other hand, does not support unlimited freedom of choice; rather, it confirms, following Kant, that free will is an anthropological attribute of the human: we are all pro-life and pro-autonomy, so these are not the issues involved in the abortion polemic.

Conception and birth

Often employed terms like conceptus and nasciturus create confusion. According to Dorland’s Medical Dictionary, conceptus  refers to the  product of the union of egg and spermatozoon  at any point of the development from fertilization to birth, including outer membranes, embryo and fetus. The Encyclopédie Larrouse defines conceptus as the embryo and its fetal membranes. The term nasciturus is also subject to different meanings. It is a Latin future participle, signifying the one to be born; in juridical terms rights may be conferred to a human being from the moment of conception to birth, “provided it is born with human form and lives at least 24 hours after disengagement from the mother” [2]. The recognition of rights to the unborn differs from one legislature to another, in Chile rights can only be conferred to those who are born alive.

More than 60% of zygotes suffer natural involution in the first stages of development. Of those that become implanted, 40% will abort spontaneously in the early weeks of pregnancy. It is therefore inconsequent to estimate that every conceptus is destined to be born, since there are high probabilities that gestation will be unsuccessful, and the term nasciturus being more aptly employed once pregnancy has stabilized and will probably come to term. The juridical figure of a retrospective rights assignation does not contradict that a moral recognition of rights to the zygote, embryo, and fetus will validly depend on whatever concept of the beginning of human life one may uphold.

The beginning of human life

Arguments in relation to voluntary abortion invariably depends on one of three beliefs about the beginning of human life:

• Conceptional view: human life begins at the moment when the egg is fertilized, constituting the zygote provided with a full human genome. From this perspective, conception initiates life, human life and the attribute of personality; the ontological and moral status of the zygote is identical to that of any human being.
• Evolutionary view: the zygote develops into a pre-embryo till the moment of its uterine implantation, at that stage becoming an embryo that at some further point of its development –appearance of the neural crest, sentiency, extra-uterine viability, birth or even, in some extreme views, at some neonatal stage. The variety of decisive stages proposed as the initiation of a human being has been criticized as arbitrary and unconvincing.
• Relational view: according to this perspective, human life begins when the woman becomes aware of her pregnancy and decides either to interrupt it, or to embrace the mother-child relationship.

It is my belief the culturalization, and therefore humanization of a developing Homo sapiens commences when pregnancy is recognized by the mother as desirable, and she unfolds feeling and reflection, giving origin in her womb to a being with name and future…Should abortion occur before this moment, a living being, embryo or fetus disappears, but not a human being. After that, a son child is lost [3].

This last view has comparatively few academic adherents, although it is sociologically the most prevalent one, described as the lapse of time between conception and pregnancy recognition –“recognition by the flesh”-, and the acceptance of engendering a new being –“confirmation by the word”- [4]. Knowing herself pregnant is a physiological fact that compels the woman –de facto and regardless of current legislation- to consider interrupting her pregnancy or confirming it by the word and thus begin a mother-child relationship with the ethical and social responsibilities its entails. The distinction of these two separate moments is not considered in laws that regulate abortion by restricted indications, but is respected in normative models that include a period where the woman has the option to autonomously decide whether to interrupt or continue her pregnancy, negate or affirm a mother/child relationship.

All three views on the beginning of human life –dismissing the extreme position that prohibits any interference even if fertilization is only suspected but improbable-, are incompatible. And yet, they have in common that limits are placed to voluntary abortion: the virtual limit of less extreme “conceptualists” who accept the use of the pilll as an emergency contraceptive, the embryological limit of “evolutionists”, and the acceptance of a period of time for the free exercise of autonomy acknowledged by “relationalists”. None of these postures is free from contradictions, thus keeping alive the debate about perinatal ethics in independence of restrictive or permissive legislations.

In other words, for the conceptional view the conceptus is from its inception a human being with full ontological and moral status, whereas evolutionary and relational views hold that the nasciturus begins at some point of development and, as such, acquires ontological presence and moral value. A biological limit (from embryo to fetus), a moral limit (from biological entity to human being) and a juridical limits (from permissible to unacceptable abortion) are demarcated.

Spontaneous abortion and the status of the embryo/fetus

“Perinatal (bio)ethics is an emergent subfield of philosophy that addresses the moral issues that arise before, during, and after pregnancy” [5, p143]. One of the most interesting aspects is the non-contradictory co-existence of the emotional loss of spontaneous abortion –miscarriage-, and the cultural as well as legal acceptance of voluntarily induced abortion. Mourning that usually goes with the miscarriage of a wanted pregnancy indicates that a relationship has been severed between mother and the embryo/fetus she has granted the status of human being, even though feminism sustain that induced abortion is based on denying such a status to embryos. Feminists have serious difficulties in conciliating the legitimacy of aborting  beings they  consider lacking in ontological or moral status, at the same time acknowledging that such  a status explains mourning and the experience of loss that is unleashed by unwanted spontaneous abortion [6],[7].

Abortion debate based on rights

The 20th century is characterized by the relevance given to the human rights issue ever since the Universal Declaration on Human Rights (1948) and the work of Thomas Humphrey Marshall inaugurating concern for social rights, after political and civic rights had been secured with the institution of democratic sovereignty.  In spite of the Declaration, additional proclamations and social movements have been necessary to insist that discrimination in the exercise of rights, for ethnic, gender, age or convictions are morally unacceptable. But they do occur.

Legislation on abortion goes through three stages: decriminalization, legal acceptance of the right to decide an abortion, and moral legitimation based on universally valid principles [4]. Countries like Chile, where the disposition to dictate a new law has been slow, will have to enter the debate on all three fronts, respecting that it is necessary to eliminate penal sanctions, respect women’s autonomy and base argumentation on valid arguments that go beyond established doctrines.

Feminist philosophy and social movements have argued for the liberty to choose abortion by defending women’s right to her own body, as well as sexual and reproductive rights. “The right to legal, safe and gratuitous abortion is a great debt that no longer so young Latin American democracies owe to women on the way that purportedly has been taken to recognize them as citizens” [8, p109].  This proclamation intends to to leave in the woman’s hand all reproductive decisions, including the autonomy to avoid or interrupt an unwanted pregnancy. As could be foreseen, orthodox opposition has responded that the fetus also has rights since it is a human being and a potential person from the instant of conception or acquires them at some early stage of its embryological development.

The embryo/fetus has reaped marked visibility in the wake of embryonic cell research, the routine use of echography, prenatal diagnosis, fetal surgery and the museology of of embryos that makes them “icons of life” [9].

The enhanced visibility of the fetus strengthens its presence as a carrier of rights, giving support to those who affirm that ever since conception or, according to others, the early stages of embryonic development, the pregnant woman carries a human being  who is the moral subject of rights, the elimination of which constitutes homicide. This visibility has been taken to extremes by opponents to harvesting embryonic cells or tissues from induced abortions claiming “vested interests and complicity with abortion by researchers and society”, as the “contradiction becomes evident of not desiring nor valuing the nasciturus except for its organs” [10].

Embryo visibility contrasts with the issue of abortion, which “to a great extent has been absent from the sphere of representation” due to its polymorphic character of being a procedure “universally practiced” but rarely accepted, and “frequently condemned” at the same time being “widely tolerated” [4, p14-16].

Legislating on abortion

Decriminalizing or legalizing voluntary abortion may follow the model of precise indications, or be allowed within a period of time -first trimester-. Laws that accept so-called therapeutic abortion are based on medical diagnoses of conditions that make pregnancy unviable or very risky. Under this scheme, rape is the only acceptable motive for abortion that may be demanded by the woman, an indication that finally is also medical, especially if rape was an act of consanguineous incest.  European and North American law preferably allows voluntary abortion by respecting the woman’s judgment to reach the decision of aborting an unwanted pregnancy. Nevertheless, certain conservative moral qualms insistently support social movements rejecting such laws as unduly permissible.

Much can be learned from the way France approached the issue of legislation, after total prohibition effective since 1920 was replaced in 1975 by a first trimester freedom to abort. The need for new legislation was based on four considerations [11]:

1. Adapt the law to present times.
2. Reduce social inequities.
3. Avoid the consequences of clandestine abortion.
4.  Diminish the incidence of abortions.

French law-makers gave priority to the reduction of abortion incidence, surmising that decriminalization would make abortions more visible and susceptible to contraceptive education, dissuasion and, if the woman’s decision were final, to provide medically safe interruption of an unwanted pregnancy [12]. The French legal procedures were explicitly respectful in acknowledging that “the law depends on common morality” [3], as has commented by Habermas –legitimacy must precede legality-, and by Ricoeur –the law mediates between morality and politics-.

The Chilean project for decriminalization of abortion

Debating on voluntary abortion has three distinct objectives that confront the country’s restrictive legislation:

1. Legally frame the issue of voluntary abortion.
2. Develop a legal normative that contributes to social peace.
3. Resolve the public health problem related to the risk of clandestine procedures.

To begin with, the most general objection is that this bill is presented as the only alternative to modifying the actual situation of absolute prohibition and criminalization of induced abortion [13]. A more specific criticism refers to the restrictive situations that would authorize inducing an abortion:

1. “Life-threatening condition to the woman”.  Taken literally, this indication occurs rarely. Medical advances have made it possible to avoid the threat of death by either inducing premature birth (eclampsia) or controlling pregnancy related diseases without interrupting gestation. Life-threatening conditions for the woman are exceptional and solved by medical indication to abort unhindered by current legislation. To present such clinical extreme situations as the first indication for decriminalizing abortion merely serves to restrict the truly therapeutic indications that put health at risk without necessarily threatening the mother’s life. In most legislations, induced abortion to protect the woman’s health risks includes severe disease or decompensation of an underlying pathology (progressive diabetic retinopathy accelerated during pregnancy), significant mental damage, economic, social or family problems.
2.  “Genetic embryonic or fetal disease incompatible with extra-uterine survival.” Given medical advances including fetal surgery, very few conditions remain where non survival after birth can be anticipated with certainty, for severely malformed fetuses that are not spontaneously aborted may live briefly and therefore not qualify as born dead. The most frequent congenital malformations in Chile are agenesis of the corpus callosum, Potter’s syndrome, anencephaly and acrania, encephalocele, and trisomy 18, which are all conditions compatible with brief postnatal survival periods of hours or days [14]. In the way this indication for abortion is formulated, none of these pathological conditions would indicate abortion because they are compatible with extra-uterine life, though brief and tormented
3. “Pregnancy due to rape”. This indication, as yet heavily disputed, would allow induced abortion if fertilization is the consequence of rape, a gestation that will more probably be nefarious and teratogenic in case of incestuous rape, a fact to be considered by those opposed to this indication. At this point, the proposed abortion bill may be justified by the woman’s decision “if she does not want to carry the child due to its origin” [13]. This is the only instance where the woman’s decision is considered: only in the case of rape, and under no other circumstance, is the woman allowed to exercise some autonomy.

It is hardly surprising that opposition to any form induced abortion should agree with this project, as it does no more than ratify and give juridical sustenance to those medical indications which are currently admitted as good medical practice. On the contrary, the remarkable support of feminist groups and movements to this law of “therapeutic abortion”, which in no way increases women’s autonomy to demand abortion, rather letting the decision depend on medical criteria. The last paragraph of the bill, “Antecedents I-3” is therefore ambiguous when stating: “thus, both the bill presented as well previously mentioned public policies, aim at safeguarding the rights of women and offer them adequate protection”.

With all its considerable limitations, the opinion is at times presented that the Chilean bill is acceptable because more liberality may not be viable, ought to remember that it has taken 25 years to reconsider Pinochet’s last minute decree (1988) prohibiting abortion under any circumstance. The lack of flexibility in modifying existing legislation suggests the pertinence of including a “crepuscular” clause mandating revision within a prudent period of time, say 5 years, when social and cultural contexts may have changed. Should the Constitution not contemplate crepuscular clauses, it would be advisable to stipulate regular revision of the normativity that will regulate application of the law. The crepuscular provision is a juridical mechanism employed in Europe and the USA when bills need urgently to be passed before all citizens’ uncertainties have been addressed.

Conclusion

Unless debate on induced abortion is opened to other than the currently contemplated alternatives (not to innovate or accept the bill presented), acknowledging that deliberation ought to include three options –maintain current criminalization, modify the bill presented or, preferable, open the debate to other alternatives-, barely the aim of benchmarking decriminalization will be reached. Consequently, social unrest will not be assuaged in the absence of a wide and participative public debate, and of pertinent academic deliberation. In addition, the restrictiveness of this bill cannot be expected to reduce illegal abortions, nor will it reduce unequal accessibility to expensive clandestine procedures, aggravated by the legal obligation of healthcare professionals to denounce complicated abortions that seek urgent medical treatment. All in all, public distrust in medicine will increase with a bill that furthermore does not nearly solve the public health issue and consequences of clandestine medical procedures.

The acrimonious pro/contra dispute over voluntarily induced abortion needs to be replaced by a judicious, well-informed debate, in order to speed the promulgation of a law capable of reducing the personal, social and sanitary problems of abortion.

Notes

Acknowledgement
The author gives grateful acknowledgment to Professor Antonio Bascuñan for clarifying this point on law-making: “Should the Constitution not contemplate crepuscular clauses, it would be advisable to stipulate regular revision of the normativity that will regulate application of the law.”  

Conflicts of Interests
The author declares that there is no conflict of interests regarding the subject of the article.

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