Rights

Abortion: The Primary Controversy

The two polarised positions in the abortion controversy are the feminists who argue, "My body, my choice," and their opponents who say, "Pro-choice is a lie, babies never choose to die."

• The 'bodyright' case says that a woman has the right to defend her body from an unwanted pregnancy.
• The unborn child's genetic code is different from the mother's and, thus, is not part of her body.
• 'Potential human being' is not a term used in medical science.
• "'When life begins' is an observable scientific fact...the rest is just politics."
• Having no legal rights until a child is born leaves men with a sense of powerlessness.

A primary issue in the abortion controversy has to do with who has the greater right - a pregnant woman who does not wish to carry to full term... or an unborn child's right to live.

A woman's right to control her own body
Modern feminism argues that for women to be truly free, they must have a right to control their own reproduction, that a woman's body is her own property, and therefore subject to her exclusive control. Legal abortion services enable a woman to maintain that right and her personal autonomy.

Professor Eileen McDonagh, is an Associate Professor of Political Science at Northeastern University and a Visiting Scholar at the Murray Research Center, Radcliffe College. She has presented a case which has been adopted by leading U.S. feminist organisations. She developed a women-centred framework for abortion rights, based on a woman's right to consent to pregnancy.

It is an innovative pro-abortion argument that is capitalizing on the notion that pregnancy is injurious to women. McDonagh, a political science professor at Northeastern University , sets out this argument in her book, "Breaking the Abortion Deadlock: From Choice to Consent."

The rights of the unborn child

In New Zealand, a High Court judgment on January 19, 1982, declared that the unborn child has no legal standing, nor could anyone argue for its standing (Wall v Livingston and Roborgh). A Court of Appeal judgment on December 20, 1982, confirmed that the unborn child had no statutory legal right or standing.

Thus the unborn child has no legal rights until he or she is born, and no one can intervene on his or her behalf.

The perennial question remains: if it can be established beyond any reasonable doubt that the unborn child is an individual person, should he or she be given legal protection?

A landmark test case on this very issue was heard in Canada in May 1983. Joseph Borowski submitted that the right to abortion in the Criminal Code infringed the right to life provisions in the Canadian Bill of Rights.

Nine expert witnesses were called to provide scientific and professional evidence on foetology, genetics, obstetrics, neurology and ultrasound technology. The first witness was Sir William Liley from New Zealand, who testified for one and a half days.

In the early years of legal abortion in the Western world, there were numerous cases of men seeking injuctions to prevent their girlfriend or wife aborting their baby. Some injunctions were initially granted, but later overturned on appeal. Essentially, the father has no legal standing until the child is born.

How men are affected by abortion

Arthur Shostack, Professor of Sociology at Drexel University in the United States, wrote what is said to be the most comprehensive study to date, "Men and Abortion, Losses, Lessons and Loves". It is based on a survey involving a thousand men in the waiting rooms of abortion clinics.

Prof Shostack describes himself as "unswervingly pro-choice". His key points are adapted from 1993 interview by Don Kruse in M.E.N Magazine.

• 84% of the men considered they had been a full partner in choosing the abortion.
• The men reported a high level of personal distress. Most thought about the foetus, had dreams about the child that would not be. 98% said they would never want to be in this situation again.
• The greatest single concern was the well-being of their partner.
• It is very rare for men to tell another of their involvement in an abortion.
• The news that his partner is pregnant and wants an abortion, comes as a tremendous shock to the man. Usually the stunned response is "Whatever you want."

Abortion is a clash of rights. It is not a woman's or a man's issue, it is a couple's issue.

Spousal notification could help men process their trauma and sense of powerlessness. Without this basic right-to-know, men have no reproductive rights whatsoever. 

According to Prof Shostack:

"Women say 'It compromises my decision making. If I don't want them to know, it's my body and I won't tell them.' My argument is that your body has in fact been altered by the product of two party behavior, a product that has genetic inheritance from a guy that just might care to petition for its bringing to term. You make the final decision, but to pretend that what has changed your body is the product of your own wish fullness is manifestly false. So I would like you to hear out the husband. Its not just notification of course, its also the idea that the husband can then plead. 

"We don't have a perfect world. Abortion is what is called a clash of faulty rights. When a man and woman disagree about the fate of the fetus there are faulty rights involved. That's a solemn doctrine in the law. Things are not neat and tidy, so if you require the woman to hear the man's plea it could be very painful to her. I think that pain is outweighed by what I regard as the legitimacy of the plea. We must come to the realization that this is not a women's issue and it is not a men's issue; this is a couple's issue." Read the full interview here.

The key issue:

They [the Royal Commission] concluded that a woman's right to abortion was limited once the status of the child had been defined.

"There are two matters at the heart of the abortion controversy. They are the status of the unborn child ? and the rights of the pregnant woman."
Opening summary of the report of the NZ Royal Commission on Contraception, Sterilisation and Abortion, 5th March, 1977)

The Commission devoted a chapter of their report to the rights of the pregnant woman. They concluded that a woman's right to abortion was limited once the status of the child had been defined. "Once it is recognised that the unborn child has a status, the rights of the pregnant woman cannot be regarded as absolute, because any rights she then has, must be measured against the existence of the foetus. Any legal code must give weight to that consideration."

"We therefore conclude that while a woman has a right to control her own fertility, she cannot, once she is pregnant, any longer assert that right as an absolute right, and it must be considered against the status of the unborn child."

Variations on this key ethical issue are vast. There are a great many scholarly arguments offering guidance, political considerations and the theory of abortion practice and counselling. This issue is covered in more depth in the Religious and Philosophical section.