Abortion time limits

British Medical Association

Factors influencing views on abortion time limits
This section identifies some of the major factors that influence views on abortion time limits and aims to provide the reader with sufficient, accurate information to make an informed judgment. It considers a range of views on the moral status of the fetus and clarifies its legal status as well as reporting on research relating to fetal viability and providing information about fetal pain. The methodology and timing of prenatal diagnosis and the identification of fetal abnormality are also considered.

The moral status of the fetus
A key issue in the abortion debate is the moral status of the embryo and fetus. Although we share a common view about the obligations we owe to each other, including an obligation not to intentionally harm or kill, views differ about what we mean by 'each other' and therefore the scope of those obligations. The question of when life begins or, more precisely, when a human being acquires moral status, has been debated for many years and continues to be an issue on which members of society take opposing views. This is inevitable, because it is not a question to which there is a factual answer. Ethical arguments can be made to justify attaching moral significance to various points of development – from fertilisation through to the development of self-awareness some months after birth – but there is no single agreed point that emerges from ethical discourse. Instead, individuals regard the embryo or fetus as having moral status at a particular stage of development based on their own personal beliefs and values. For this reason, it will probably never be possible to achieve universal agreement on this question. Yet public policy is dependent upon some consensus point being reached. Achieving an appropriate balance in law between the moral duties owed to the fetus and the moral right of the woman to make her own decisions about what happens to her body is an essential part of the abortion debate. It is one that rests in no small part on how we regard the fetus, and consequently what rights and obligations it can lay claim to, at various stages of development.

Whilst lack of agreement on this fundamental point may not be problematic for those engaged in philosophical debate, the need for public policy decisions to be made – such as when and in what circumstances abortion may be permitted – requires that some public policy judgments are made. Mary Warnock points out that in seeking to identify public policy which is morally the best possible 'one cannot overlook the strong and deeply held moral feelings of large numbers of the population. Laws must be made with a view to the public good'. Seeking to achieve this aim, the best that can be hoped for is to find some consensus or majority view within society about how the law should be framed, whilst making provision for those who would attach moral significance to the fetus before that point to ensure that they are not required to act contrary to their conscience. Those who would attach moral significance at a later stage of development, whilst perhaps not accepting the logic behind the limits set, must nevertheless accept that there is a prima facie moral obligation on all members of society to respect democratically made laws.

What stages of development are seen as morally significant?
Much has been written about the various stages of development that can be considered as morally significant. The intention here is simply to give an overview of the main points with direction to further reading for those who wish to explore these views in more detail.

Fertilisation
The terms 'fertilisation' and 'conception' are often used interchangeably in this context although it is more accurate to refer to the fusing of the gametes as 'fertilisation' which marks the beginning of “conception” which is a process ending with successful implantation.

At one end of the spectrum are those who take the view that 'the human being is to be respected and treated as a person from the moment of conception'. This position is usually based on the belief that at the moment of the fusion of the gametes a new individual is created, combined with the religious belief that every human being, from fertilisation, has a “spiritual soul” directly created by God or, at least, that as we do not know exactly the point at which ensoulment occurs, it is safer to assume that it occurs at fertilisation. This view is most closely aligned with the Catholic tradition but is not restricted to members of that faith.

A variation on this approach is to view the embryo not as 'a person' from the moment of fertilisation but as a 'potential person'. Because of this potential, it is argued, the embryo should be afforded the same status and protection as other human beings, including the right not to be killed. The difficulty with this argument is that, in other circumstances, we do not contend that something that has the potential to become something else should be treated now with an eye to that future entity. John Harris points out that we are all potentially dead, but we are not, and do not expect to be, treated now as though we were already dead. If it is the potential to become a person that is important then it is not clear why this status should rest only with embryos and fetuses and not, for example, with sperm and oocytes or, with developments in cell nuclear replacement, every cell from the human body.

For those who adopt the view that fertilisation marks the stage at which human life acquires moral status, abortion is only acceptable where it would be morally justified to kill one person to save another such as where there is a stark choice between saving the life of the mother and saving the life of the embryo or fetus. Fetal abnormality, however severe, would not justify abortion since this would be morally equivalent to killing a disabled child or adult. Post-coital contraception, IVF involving the creation of spare embryos and embryo research would also be unacceptable as each involves the destruction of human embryos.

The development of the primitive streak
In terms of the early embryo, the development of the primitive streak at around 14 days after fertilisation is considered by some to be a morally significant stage of development. Until the development of the primitive streak it is possible for twinning to occur. Up until this point, therefore, the embryo could result in either one individual or more than one and so it is argued that it is not until after this point that the new individual is truly formed. At this stage it is also clear which cells will go to make up the embryo or embryos and which will form the placenta. This position has been supported in legislation as the limit up to which human embryos may be used for research purposes. Those who oppose this view argue that this is an arbitrary limit. Some take the view that because the full complement of genetic material is present in the embryo from fertilisation there is no justification for setting the limit at any stage thereafter, while others argue that the there are other more appropriate stages of development such as the stage at which early neural development begins (around 17 days).

The development of brain functioning
On the basis that it is generally accepted that a person ceases to exist as a human being once his or her brain has died, it has been argued that a person comes into existence when the brain starts to function. The development of the brain provides the capacity for sentience and for the organism to have some form of consciousness and self-awareness. It has been pointed out that it is because of our brains that human beings are considered to have special attributes to which we attach special moral value – such as the capacity to be autonomous, to think reflectively and to have free will. For this reason, the development of brain functioning is sometimes considered to be a morally significant stage of development. (This is often understood to be at around 20 weeks’ gestation since it is during the period from 20-32 weeks after conception that rapid brain growth and development occurs.). Opponents of this position point out that animals have brain functioning and sentience yet they are still killed for food, for their skins, or for pleasure and so sentience alone cannot be the factor that determines the onset of moral status.

Viability
For others, it is at the stage at which the fetus is capable of independent existence that the fetus achieves moral status. At this stage it is no longer entirely dependent upon its mother for its life and, given the right circumstances, would be capable of long-term survival (read more on a discussion about the current thresholds of viability here). The principal problem with the viability criterion as a marker for the moral status of the fetus is that it is entirely dependent on the technological skills that are available and these will vary considerably around the world and over time. It has therefore been argued that this limit should not influence our thinking about the intrinsic moral value of the fetus.

Birth
Birth has been put forward as being morally significant in terms of the status of the fetus for two reasons. First, it is the stage at which an independent being comes into existence – up until that point, the fetus was inside its mother’s uterus and totally dependent on her for nourishment and protection. Nobody except the mother can provide that care while the fetus is in utero but after birth this task can be undertaken by anybody. This unique relationship often leads to the perception that, until birth, the fetus is not a separate being but is a part of the mother’s body. For this reason, some people argue that until birth it is the mother’s wishes and the need to respect her autonomous wishes that are relevant and not the interests of the fetus. Secondly, after birth, treatment can be given to the child without needing to carry out invasive techniques on the mother. The practical implication of this is that before birth the woman’s consent needs to be sought for any intervention (including, some would argue, the invasiveness of forcing a woman to continue an unwanted pregnancy) whereas after birth the child’s interests are the only relevant factors to take into consideration in making treatment decisions.

Those who challenge the moral significance of birth argue that the expulsion of the fetus from the woman’s body does not affect the intrinsic moral value of the fetus. There is no fundamental physiological difference between the fetus in utero and the baby after birth and, it is argued, the only difference is that one can be seen and the other is hidden and the level of protection the fetus is afforded should not be determined in this way.

Self-awareness
At the other end of the spectrum are those who link moral status with the development of self-awareness. For some it is self-consciousness and an awareness of one’s existence that is the most important feature in acquiring moral status. Some go further, and argue that it is not only awareness of one’s existence but the capacity to value that existence that is relevant. For those who see self-awareness as being the significant stage of development, a newborn would not be considered to have moral status since it lacks this awareness; such capabilities do not develop until some months after birth. From this perspective, in terms of harm to the individual, it is argued that there is no morally relevant difference between aborting a fetus at 12, 20 or 35 weeks’ gestation and infanticide. This also has implications for the moral value of adults who have lost, or never gained, self-awareness. For many people these conclusions are totally counter-intuitive and even abhorrent. Even those who support this position from a philosophical perspective, however, may nonetheless accept Warnock’s proposition that, in terms of public policy, one cannot ignore the deeply held moral views of large numbers of the population.

The gradualist approach
While this section has set out some of the key stages of development that have been presented as being morally significant in terms of the status of the fetus, it would be inappropriate to assume that everyone’s views fit neatly into one of these positions. Many people would have difficulty with pin-pointing the stage at which they believe the fetus achieves moral status and do not believe that the fetus has no moral status until a particular stage of development, after which it deserves full and absolute protection. As Raanan Gillon has said, 'The lack of clear dividing lines does not mean to say that there are no differences: the problem is that the borders are fuzzy.' Most people’s views fall somewhere between the extremes described above, with many people taking more of a gradualist approach with the fetus being seen as gaining in moral status as it develops. The practical implication of this is that as the fetus develops, and therefore gains moral status, the greater the justification required for terminating the pregnancy. This view is reflected in the current legislation which permits different time limits for different grounds for abortion and has also been the basic approach adopted by the BMA.