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."

McDonagh's first key premise is that pregnancy is not caused by sexual intercourse, as traditionally thought. 
Her first key premise is that pregnancy is not caused by sexual intercourse, as traditionally thought. Rather, the immediate cause is the fertilized ovum -- a claim she bases on the fact that, through in vitro fertilization, life can be conceived outside of the womb and later placed in the womb where the fertilized ovum implants itself. It is at the time of implantation that pregnancy begins, she argues.

McDonagh's second premise is that by implanting itself in the womb, the zygote massively intrudes on the woman's body and, therefore, a pregnancy constitutes grave injury to the woman if imposed on her by the zygote without her consent.

Her conclusion is that if the fertilized ovum, whom she admits may be a living human being, massively intrudes upon a woman, abortion is justified in self-defense.
Her conclusion is that if the fertilized ovum, whom she admits may be a living human being, massively intrudes upon a woman, abortion is justified in self-defense. In other words, to the degree that the fertilized ovum is legally considered a person and is protected, the foetus should also be held accountable for any injury he or she imposes on the mother.

This is called the "bodyright" argument.

The counter-argument
The evidence of human biology (foetology) reveals the foetus as a separate entity, involved in a unique symbiotic relationship with the woman, but not part of her.

Dr Bernard Nathanson, obstetrician and gynaecologist, former abortionist, and a pioneer in the modern abortion-rights movement observes:
"The modern science of immunology has shown us that the unborn child is not part of a woman's body, in the same sense that her kidney, or her heart is. A body part is defined by the common genetic code it shares with the rest of its body.

"Immunologic studies have demonstrated beyond cavil [beyond argument] that when a pregnancy implants itself into the wall of the uterus at the eighth day following conception, the defence mechanism of the body, principally the white blood cells, sense that this creature now settling down for a lengthy stay, is an intruder, an alien, and must be expelled."

"Therefore, an intense immunological attack is mounted on the pregnancy by the white blood cell elements. Then through an ingenious and extraordinarily efficient defence system, the unborn child succeeds in repelling the attack. In ten percent or so cases, the defensive system fails and the pregnancy is lost as a spontaneous abortion or miscarriage."
A foetus has its own genetic code which differs from his or her mother's. The foetus also plays an active role in his or her own development, controlling the course of the pregnancy, and the time of birth. 
A Court of Appeal judgment on December 20, 1982, confirmed that the unborn child had no statutory legal right or standing in NZ law.

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.

The pregnant mother and her baby are individuals whose tissues are independent but in contact with each other.
He explained that the pregnant mother and her baby are individuals whose tissues are independent but in contact with each other. Except for the nourishment, warmth and protection the child needed, he/she was a completely autonomous human being.

Sir William Liley told the court that there was no dispute among doctors and scientists as to when life began, it was only a "social definition" that had been contested. "The foetus is a human being from the time of conception."

The second witness was the respected French geneticist, Professor Jerome Lejeune. He testified that human life began when an egg was fertilised by a sperm, "the moment when all the genetic information necessary and sufficient to make a human being has been gathered together."

The scientific evidence presented at the trial was uncontested, and demonstrated that the preborn child is a human being deserving of the full protection of the law.

In the light of this compelling scientific evidence, most abortion advocates now openly acknowledge that life begins at conception.

Mary Calderone, former Medical Director of Planned Parenthood said, "Abortion is the taking of a life." The issue has now shifted from whether or not the embryo/foetus is alive to when "personhood" begins. This takes it out of the area of scientific and into that of philosophy.

Potential Human Being?
The lawyer for the Attorney General proposed that the unborn child is a "potential" human being. Replied Prof Lejeune: "We don"t use "potential" in medical science. As soon as the genetic information is at work, then the human being begins to express itself. Then is formed the external features that we recognise, but it is the same human being from conception to senility."

"The child is the potential of the teenager, the teenager is the potential of the adult, and the adult of the old man. It is the same human being at different states of life - developing itself from the beginning up to its finished product."
"There is no question that there is a human being, an unborn child inside the uterus." 
Dr Bernard Nathanson travelled from New York. Having described his experiences as a leading abortion doctor, he described foetology as a major speciality in the medical community, beginning in the early 1970s. "There is no question that there is a human being, an unborn child inside the uterus."

Under cross-examination, Dr Nathanson was asked: "Are you of the opinion that a group of learned men can determine when life begins?" "The time is past," replied Dr Nathanson, "when the determination of this issue requires an opinion. It is an observable fact. The foetus is a person and that can be stated as a scientific fact. The rest is politics."

The judge decreed that any legal protection for foetuses is the prerogative of Parliament. "Because there is no existing basis in law which justifies that foetuses are legal persons, the claim is dismissed."

An appeal to the Supreme Court failed when on 28 January, 1988, the Court declared the abortion law unconstitutional under the Bill of Rights. The Abortion Law Homepage is a private website with no apparent pro or anti abortion bias, providing legal material related to American abortion law - in particular that which is less available or well known.

Establishing Personhood
The Unborn Victims of Violence Act (April, 2004) was passed by the U.S.Congress, making it a federal crime to harm a foetus during an assault on a pregnant woman. Laws in over 24 states protect foetuses from acts of violence by a third party.

Abortion-rights advocates see these laws as eroding reproductive freedom, by granting foetuses a special "personhood" status.

The rights of the father
Some injunctions were initially granted, but later overturned on appeal. Essentially, the father has no legal standing until the child is born.
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: "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."
They [the Royal Commission] concluded that a woman"s right to abortion was limited once the status of the child had been defined.
(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.