The Preamble to the UN Convention on the Rights of the Child states: “ … Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.’”
Canada is a signatory to this Convention, which imposes obligations on state parties to it to implement its provisions. However, we currently have no law on abortion, that is, no “legal protection (of the child) before … birth.” And many of our politicians, including Prime Minister Stephen Harper, do not want to allow even a discussion as to what such “appropriate legal protection” might be.
Since 1988, when in the Morgentaler case the Supreme Court of Canada struck down as unconstitutional the provision in the Criminal Code governing abortion, there has been no law restricting abortion in Canada. Many people express great surprise at this state of affairs, including, until recently when the issue has received a great deal of media attention, many Canadians.
The Supreme Court made it clear that Parliament could pass such a law, provided it complied with the constitutional requirement of respect for a woman’s “right to security of her person”, but, for various reasons, attempts to do so have not been successful. That means abortion is legal throughout pregnancy, although the vast majority of physicians will not undertake it after viability of the unborn child, which the Canadian Medical Association sets at 20 weeks gestation, except for serious medical reasons.
Legal protection does not require giving rights to an unborn child, or recognizing him or her as a person, or even that the child is human. We use the Criminal Code to protect from cruelty kittens and puppies and baby seals, which have none of these attributes. Surely, we have at least similar obligations to unborn children.
There is an increasing recognition and, at the least, resulting deep concern that past a certain point in gestation abortion is a cause of severe pain for the fetus. There is quality evidence (UK research) suggesting the beginnings of pain perception in the fetus at 16 weeks gestation and most researchers agree that is a reality at 20 weeks. In response to this research, six American states have prohibited abortion after 20 weeks gestation, except to avoid a serious threat to the mother’s life or health, while others have argued that physicians aborting such unborn children should be required to give them an anaesthetic prior to their being killed.
Pro-choice advocates contend that there is “nothing to discuss” in relation to the current total absence of law governing abortion in Canada. But, if they are as clearly correct in this regard as they claim, why are they so afraid of allowing a discussion about it to take place?
I suggest it’s because they know that when we see the unborn child, as we now can with advanced imaging techniques, and even just imagine, let alone see, what abortion involves for it, most of us have an emotional and morally intuitive reaction that this is not an ethically neutral act. That accords with recent research showing that emotions and intuitions are important mechanisms in good ethical decision making. All abortions raise ethical issues. It’s a further question, however, what law should govern abortion, which is the issue we need to discuss.
As to the argument that the unborn child is not a human being, it is a living being and it’s human, which indicates that it’s a “human being.” A process of elimination results in the same conclusion: an unborn child is not any other species, and it’s not a fantasy or a hallucination. As the recent sex-selection abortion debate in the media has shown us, once we put a focus on the fetus as the youngest, most vulnerable human amongst us, even many pro-choice supporters see abortion in a very different light.
The law operates not only at the level of individual conduct, but also, at institutional and societal levels. It establishes our most important shared values, and norms and basic presumptions.
At present in Canada, uniquely among comparable nations, the basic presumption is “Yes, you may have an abortion.” There are no restrictions; abortion is legal throughout pregnancy. Contrary to pro-choice rhetoric, there is, however, no consensus that this is an acceptable state of affairs.
Surveys show that around two-thirds of Canadians believe that there should be some restrictions on abortion, at the latest at viability of the unborn child (it has some chance of living if born), which, as mentioned above, the Canadian Medical Association places at 20 weeks gestation.
We know that a large majority of Canadians do not support the opposite presumption, an absolute “No, you must never have an abortion,” being enacted through law.
Which leaves us with a choice for a basic presumption between, “Yes, you may have an abortion, but not if certain factors are present,” and, “No, you may not have an abortion, unless certain conditions are fulfilled.” In terms of values, the latter is more supportive of respect for life and the former of individual autonomy.
To choose which approach should be adopted, we need to have a full, well-informed, serious and mutually respectful debate. It should include considering the shared values that the present lack of law on abortion reflects and that any proposed law would establish. Let’s hope we all, especially our politicians, have the courage and wisdom to engage in this debate.
Margaret Somerville is director of the McGill Centre for Medicine, Ethics and Law.