In debates on reproductive rights, the moral status of the embryo and fetus is largely at the centre of analysis. Women’s interests and choices have been only incorporated fully in the discussion since the 1970s. Subsequently, a growing number of Supreme Court decisions and government efforts throughout the world have led to the wider recognition of the right to abortion, or in some cases, the right to privacy which leads to a right to abortion. This trend has seen the increase in identifying abortion as a women’s health issue, rather than a question of the embryo’s or fetus’ right to life. However, there is still strong opposition to the legalisation and decriminalisation of abortion from Catholic moral philosophers and other pro-life advocates. The primary conflict between feminist philosophers and pro-life advocates is the weighing of one set of rights over another (if it is accepted that the embryo or fetus have any claim to rights).
Pro-life advocates argue the embryo and fetus have potential personhood, which means that if carried to term, the fetus will most likely grow into an adult with full social and political rights. In contrast, pro-choice advocates argue that the embryo or fetus cannot have a claim to the rights it will inherit in the possible future adult life, and that the individual bodily autonomy of the woman trumps the fetus’ potential life and potential rights. The woman is already a full grown adult with rights. There are varying standpoints in between these two contentions, with some arguing the fetus is in a way the same as a rapist, insofar as it is unwanted and imposed on the woman, without consent to be in her body, whereas others see the opposition to women accessing abortions as a reflection of broader patriarchal issues of women’s inequality in society, and the perpetuation of the role of women as natural child bearers and child carers.
Abortion rights are also contemplated in relation to international human rights discourse, and how this relationship can conclude the debate surrounding the fetus’ right to life. There are several examples throughout the world where the development of abortion legislation has been underpinned by international commitments to human rights and the rights of women. Building on David Luban’s rights thesis and maintaining a feminist position on abortion, this paper presents ‘humanness’ as a social construct, whereby no one writer or philosopher has managed to pinpoint what actually makes someone human other than that it is attributed by other groups of people. In exploring these different lenses, the question of morality surrounding abortion appears inconsequential, since political rights and morality are just constructs in order to organise society so that it is predictable and stable. Pro-life advocates represent the lifelong oppression of women’s rights, independence, sexual freedom and equality. This is reflective of the dominant Christian doctrine of procreation, which has influenced the design of gender roles in social settings. Ultimately, the embryo and fetus are not human, and do not have a right to life. Even if the embryo or fetus were empirically proven to be human, it would still stand that the rights of the woman trump the claimed rights of the embryo or fetus.
Pro-life and the “Humanness” of the Fetus
The foundations of the dominant pro-life status stems from Aristotle’s potentiality principal, which has been adopted by Catholic philosophers to justify the moral status of embryos and fetuses. Aristotle argued, ‘All living things, including mindless plants, have a good or an end proper to their species toward which they naturally tend to develop from a formless or potential state.’ Borrowing from this reasoning, Catholic philosophers claim that it is therefore inherently wrong to kill embryos or fetuses because they will eventually become a full grown adult later in life. It is the potential of the embryo and fetus to become a being of sentience, self-consciousness and rationality that ordains it with a right to life. Following from this claim, there are several lines of reasoning which pro-life advocates and Catholic philosophers alike purport as justifications for the denial of abortion to women. Archetypal pro-life arguments assert that human life begins from conception. Fetuses display the physical characteristics of humans and a genetic code that is sufficient for being human. If it is wrong to kill human beings, it is therefore wrong to have an abortion, since fetuses share the same biological attributes as born humans.  But the wrongness of killing is a moral dilemma. What is right and wrong is defined by morality, and the biological attributes of a human or fetus do not make a case for moral obligations surrounding abortion and killing. If this were so, reasoning could be used to claim it is wrong to kill anything that shows biological life. Furthermore, Peter Singer suggests that while pro-life advocates claim human life occurs from the moment of conception, this is problematic because for a period after conception, the embryo can split into twins, therefore suggesting that the moment of conception is a clump of cells rather than a human being. Consequently these ideas have been expanded to answer the question of the moral dimension of fetuses and abortion.
Don Marquis presents an argument for the immorality of abortion that claims that deliberate abortion is impermissible and is the in the same category as murder or killing an innocent adult person, with the exception of some rare cases. His central thesis for why it is wrong to have an abortion is that it deprives the embryo or fetus of a ‘future like ours.’ Being killed means an individual loses their opportunity for ‘experiences, activities, projects and enjoyments’ that would have compounded that individual’s future. Marquis follows this reasoning with the idea that the only circumstance where the loss of the fetus’ life is justified is if the consequences of the failure to abort results in a loss as great as that potential life. In other words, if the mother is destined to die if she continues with the pregnancy, then it is permissible to terminate the fetus. In additional cases, if the pregnancy is a result of rape or incest it is also permissible. It is argued by critics of the pro-life standpoint that the penchant to make exceptions for abortions in cases of rape and incest suggest that pro-life advocates are less compelled by the ‘innocence’ of the fetus, and more so by the desire to impose virtue on women. Furthermore, if Marquis’ deprivation of future justification were accepted, this would mean that almost any human activity that threatens a fetus’ future livelihood could be considered morally detestable or wrong. For example, if humans consumed all the fish in the sea, it could be argued that we threatened the future rights of those fetuses to access fish. Martin Rhonheimer suggests that the fetus does not become a person if it was already biologically a human individual. Rather the fetus is a human being that eventually actualises its personhood. Rhonheimer justifies his claim by proposing the idea of ‘retrospective identity.’ By this, he suggests it would violate the present self’s interest in survival and right to life if he/she had been killed via abortion.  In this way, it can be assumed that the present fetus would wish the same survival and right to life. These conceptualisations of what constitutes human life in moral terms, and whether the embryo or fetus has a right to life, have influenced the access women have had to abortions and their reproductive rights for a considerable time. However, even if the fetus was proved to have moral value, this does not necessarily lead to the conclusion that abortion should be abolished.
With regard to the abortion debate, there is evidence leading to a collision of rights in our society. Consider the following hypothetical exercise:
Imagine a woman is pregnant with Siamese twins. The doctor says they will die within 6 months after birth unless they are separated when they are born, in which case one twin will live for a full adult life, while the other will die almost immediately. Is it wrong to let one die to save the other? Or is it right/wrong to let them both die?
This example demonstrates the puzzle of competing rights. If it is wrong to abort a fetus because of their right to life, then it follows that it is wrong to kill a newborn baby. However if the woman does not choose the option to separate the twins they will both die. If the mother chooses the surgery, she violates the right to life of the twin that will die. But the twin will die inevitably; it is just a matter of time. Saving a guaranteed life is valued higher than saving a potential (however short) life.
Michael Tooley firmly rejects the notion that the fetus possesses a right to life. Tooley argues that ‘an organism possess a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states.’ He suggests that a person is only a person if they can have a desire to continue existing. This raises a significant issue when considering someone in a coma. A comatose person is unable to express a desire to continue existing. In this kind of situation, the comatose individuals are still considered persons. Perhaps because of their past experiences of social interaction, emotion, thought and expression, or simply because they were each validated as persons by the society in which they live, both politically (with citizenship and formal rights) as well as socially (with relationships).
Ayn Rand claims that ‘to equate a potential with an actual is vicious: to advocate the sacrifice of the latter to the former, is unspeakable.’ Peter Singer suggests according a fetus or embryo no higher moral status than that of a nonhuman animal at a similar capacity for rationality, self-awareness, or emotional recognition. No fetus should have a claim to life at the same level as a person. Rand further suggests that if it were accepted that aborting an embryo or fetus was morally wrong because of its potential life, then it can be argued that destroying or wasting the sperm or egg is equally immoral. Along this reasoning, anytime a man ejaculates, it could be said he is destroying or killing the potential life of those sperm, likewise with any menstrual cycle of a woman, which destroys the potential life of the egg. It is clear that there are issues surrounding the pro-life perspective. There are still conceptual hurdles regarding the moral status of the embryo and fetus, and there is an issue regarding the collision of rights. This is addressed further by feminist philosophy on abortion.
The Pro-Choice Argument: A Woman’s Right to Bodily Autonomy
‘A ban [on abortion] places women, by accident of their biology, in permanently and irrevocably subordinate positions to men.’
Traditional gender and sexual roles, as well as economic and political structures, have encouraged the domination of women by men throughout history. In 1965, an indiscriminate survey of Americans was used to assess attitudes towards legal abortions. Unsurprisingly the highest approval rate (between 55% and 71%) for abortion related to cases where the woman’s health was in danger, the pregnancy was a result of rape, or there was a substantial chance of deformity in the fetus. However, if the abortion was a result of financial issues, emotional issues, or simply an unwanted pregnancy, approval rated much lower (between 15% and 21%). This is reflective of a broader attitude cultivated by norms and values relating to patterns of sexual behavior and traditional roles for women as child-bearers, caregivers, mothers and wives.
The evolution of abortion in law is often linked to the United States Supreme Court’s 1973 decision in Roe v. Wade. This found that a constitutional right to privacy encompasses the right to decide to have an abortion. However, this did not mean that women’s access to abortions would be fair, in terms of government funding. The State established a principal of non-interference in women’s decisions to have an abortion, but as a consequence this non-interference in “private matters” would mean women could make no claim for public support to provide abortions. As Catherine MacKinnon states, ‘Women were granted the abortion right as a private privilege, not as a public right.’ McKinnon rejects the privacy rationale, arguing that privacy traditionally sits in the domestic sphere were men have held positions of power in the organisation of sex and the home life. Since then, feminist writers and philosophers have been working to address the issue of abortion from a perspective of the woman’s rights, rather than the fetus’ right to life.
Judith Jarvis Thomson offered the groundbreaking argument that women have property interest in their bodies, and that the fetus is a trespasser on the woman’s property. The woman is therefore entitled to rid herself of the intrusion of the fetus. Thomson uses the analogy of the violinist to illustrate her point:
You wake to find yourself back to back with an unconscious violinist who is extremely famous. He has a fatal kidney ailment, and you are the only one who has the right blood type to help. The Society of Music Lovers kidnapped you, so you are there involuntarily. If you unplug yourself from him, he will die. However if you stay there for nine months, he will recover. The question is whether it is morally wrong to not save his life?
This idea begs the question of whether humans have an obligation or a moral duty to save those who cannot save themselves. The fetus, like the comatose, the Siamese twin, and the Violinist, lack the ability to make rational choices, express desires, and pursue survival. Under these circumstances, it is permissible to act in one’s self interest over saving the other’s life, in particular if it means sacrificing one’s own needs and desires. This leaves us asking: whose rights are the most right?
Proponents of feminism such as the National Women’s Health Network argue that the right to an abortion is an inalienable right of all women to control their own bodies and lives. The major concern for feminist pro-choice advocates is that even if the fetus has a right to life, the right to exist in the body of the woman is not guaranteed. If there is no consent to pregnancy, or even if there was but that consent is withdrawn, then the fetus has no claim to the woman’s body, or her resources. In this way, it is necessary to imagine consent as temporary, and always dependent on the authority of that consent. Much like in cases of sexual intercourse, a women’s consent is needed for it not to be rape, however she can withdraw that consent at any time during intercourse. The same applies when a woman falls pregnant due to ineffective contraception. If the condom breaks, or the pill fails to inhibit fertilization, the woman has clearly not consented to be impregnated with a fetus given she and her sexual partner took steps to stop conception, regardless of its failure. Along this reasoning, if a woman falls pregnant by accident, she has a right to ‘evict’ the fetus from her body. Stephen Kershnar follows this claiming that in cases a rape, women have the right to use lethal force to terminate. 
Pro-choice advocate Alison Jaggar argues that in societies where mothers bear responsibility for birthing, child rearing, and other unpaid domestic work, they should control the decision regarding abortion. In places where abortion is legal, the freedom and rights of women’s autonomy over their bodies is often impeded by the statutory requirement for waiting periods after abortion requests. This implies that women’s decision-making is erroneous, and that they are acting impulsively. Clearly the treatment of abortion and women’s rights reflect sexual and gender norms embedded in political and social institutions. To achieve absolute equality and emancipation of women, the right, and importantly access to, abortions are fundamental to the right to sexual freedom and the freedom to adopt any social, economic or political role, regardless of gender.
Women’s Right to Health and State Variance in Implementation
If a woman decides she wants an abortion there is generally good reason. In most cases she will try to access an abortion, regardless of whether she considers the procedure adequately safe. According to a recent World Health Organisation (WHO) report on unsafe abortions, 21.6 million women experience an unsafe abortion worldwide annually, 18.5 million of which occur in developing countries, where poorer women have limited access to safe abortion. Of these, 47,000 women die from complications of unsafe abortions each year, constituting roughly 13% of all maternal deaths. Abortion should be considered a public health issue, rather than an issue of the rights of the fetus given its often fatal outcome. In international law, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), adopted in 1979, guarantees that the right to health includes the right to bodily autonomy, and encompasses sexual and reproductive freedom. It is also within the right to health that women are entitled to support for accessible, affordable and good quality care and services. However there are still inconsistent legal approaches globally towards abortion.
Australia revisited the abortion debate with the recent publication of an editorial on ‘abortion tourism’ by Caroline M. de Costa and Heather Douglas. They argue that there is a serious need for legislative uniformity in Australia in order for women to have equal access to abortion services. In particular they are concerned with the disproportionate effect the inconsistent laws have on women from rural areas. Abortion has only been decriminalised in Victoria, Tasmania, and the Australian Capital Territory (ACT). The restrictive policies on abortion in South Australia, Queensland, the Northern Territory, and Western Australia has led to the development of ‘abortion tourism’ – where women are forced to travel interstate to access the services they need.
In contrast to Australia’s inconsistent laws on abortion, Colombia provides an example where the state has recognised that while the fetus may have constitutional value, it is not proportionate or reasonable to force a person to sacrifice her or his health in the interest of protecting a third party (the fetus). By criminalising a healthcare service that is only needed by women, this violates the terms of CEDAW, which prohibits sex-based discrimination. The Colombian decision to legalise abortion countrywide was based on the recognition that forcing the continuance of an unwanted pregnancy is comparable to sexual violence. In this decision, the Colombian case has shown that while fetuses may have some claim to rights, it is the rights of women that outweigh the possible rights of the fetus.
The Social Construction of Humanity and Morality: Are abortion values natural and immutable or socially constructed?
‘Humanness’ is an evolving concept. It wasn’t until 1967 that Indigenous Australians were constitutionally recognised as equal to non-indigenous Australians in law. The concept of terra nullius, which underpinned the treatment of Indigenous Australians prior to 1967, was the idea that when the British landed, no persons were living on the continent, because the original inhabitants did not display a developed notion of ownership. In a way this assessment of Indigenous Australians was an attempt to classify both what constitutes personhood and what it means to have rights to property. While Indigenous Australians shared the biological attributes of humans, they were not afforded the same rights and recognition of personhood as the white Australians. It appears the distinction between the two groups of biological humans was the political nature of the white settlers over the Indigenous Australians. This is reflective of David Luban’s critical claim that ‘humanness’ is a matter of law; it is outside the metaphysical religious notions of personhood. Luban suggests that our ‘humanness’ stems from our character as political animals.
The conception of human nature is contested among different disciplines, where psychologists see humans as essentially similar, while sociologists and anthropologists see the vast differences in cultures and beliefs is that which constitutes our ‘humanness.’ The group that surrounds us shapes the ‘humanness’ or personality of an individual. A human’s identity is determined by its association with a social group or community, suggesting the membership of species is not sufficient enough to determine personhood. In order to safely be individuals, with our own interests and needs, a set of rules and rights have been developed to maintain a secure space for collective living. This is reflective of Immanuel Kant’s unsociable sociability. Humans enter into a society, with competing interests, and in order to remedy this conflict, politics it used to organise society so that it does not breakdown. Jaggar argues that to call someone a person makes both an empirical claim about their biological construction, but ascribes them a moral status, with subsequent rights and responsibilities. To be a person, it is necessary to have physical experiences, social experiences, and some kind of cultural heritage.
A woman is human because her relationships, as well as her political status, inform her identity as an individual who has rights and responsibilities. With regard to the issue of abortion, women’s rights evidently outweigh the possible or future rights of the fetus. It is illegitimate to value the potential person’s rights, over the actual real woman with real needs, desires, and rights. This treatment of women’s rights to self-determination and decision making also reflects broader gender inequality, derivative of religious doctrine and embedded in political and social institutions. Abortion should no longer be a debate on the fetus’ rights, it is about the individual woman, and more broadly women’s public health and equality. This lens needs to be adopted in all future law making around this issue.
Nina Roxburgh graduated with a Bachelor of International Relations with Honours in 2015, and now works are a researcher in the Department of Politics and Philosophy at La Trobe University. Her research is largely focused on sexual exploitation and abuse in peacekeeping operations and intervenor programs, as well as trafficking in women and children for sexual exploitation.
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