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Fetal Abnormality Abortion

As we have noted, abortion for serious fetal abnormality is typically regarded as more readily defensible than other kinds of abortion. This is particularly true of fatal fetal abnormalities, where the new human being has no prospect of sustained life after birth in any event, and where there is therefore very little to be gained, in terms of protecting life, by prohibiting abortion. Many that are otherwise opposed to abortion permissions will wish to make concessions in such circumstances. However, on the assumption that abortion is wrong because it amounts to unjustified homicide, it is difficult to explain how a concession for fetal abnormality can be made, even where the fetal defect is fatal.

Kaczor makes this point in relation to Down’s Syndrome, a milder fetal abnormality for which many abortions are performed.11 In Britain, prenatal screening for Down’s Syndrome is routinely carried out, often resulting in termination of pregnancy when the syndrome is detected. Kaczor makes the sound point that if one takes the moral status of the fetus to be on a par with born infants, terminating for Down’s Syndrome would surely be morally prohibited, along with most other abortions. We could not accept the practice of terminating the lives of Down’s Syndrome babies and children on the basis of their genetic abnormality. If the fetus merits equal moral status, it follows that the termination of fetuses with this genetic condition is every bit as morally impermissible.

No doubt, a practice of selectively terminating Down’s Syndrome human beings post-birth would be regarded as horrifyingly barbaric. 12 Moreover, our strong moral reactions against such a practice would only be intensified, not mollified, by the fact that the children were being terminated because of their disability. Kaczor’s point here is simply that once someone assumes the moral parity of fetuses and born human beings, the cornerstone of most philosophical opposition to abortion, our moral reactions to the idea of terminating genetically abnormal human beings ought to be consistent either side of birth.

One possible argument in favour of a special concession for FAA invokes the value of fetal interests. Someone might claim, that is, that even if the fetus’s moral status is equal to that of a person, the fetus may well have interests, rooted in its own wellbeing, in not being born and living a life burdened with disability. However, this claim will simply not be true in the vast majority of cases. The fetal interests argument as I have outlined it essentially claims that it can sometimes be better for persons to die than to endure more life in certain states. We may well accept that there is a threshold of suffering past which this is true—that is, a state of being so intolerable that it amounts to a life not worth living. But only a rare few disabilities and syndromes detectable before birth would ever meet that threshold. Down’s Syndrome is in fact a very good example of an abnormality entirely compatible with a good, happy, and fulfilling life.[1] [2] [3] Given that life with Down’s Syndrome fails to come anywhere close to the threshold of a life not worth living, one cannot justify the termination of Down’s Syndrome fetuses by appeal to the interests of the fetus in avoiding continued life. The same is true of a vast number of diseases and disabilities the avoidance of which may well motivate selective abortion, such as cystic fibrosis or cerebral palsy. Only with respect to extremely debilitating and rare diseases could the suffering involved in life be so acute that it is plausible to suggest that an individual would be better off having that life ended before birth.

More importantly, though, a discussant who ordinarily equates abortion with homicide will not be able to consistently argue that abortion is permissible in the interests of the fetus so as to avoid burdens which would not justify terminating the lives of born human beings, particularly when death is not even at their behest. What is at issue here are the conditions on morally permissible mercy killing. Even in extreme conditions where we would be tempted to conclude that an individual’s suffering strips her of a life worth living, it does not follow that we are entitled to engage in unrequested euthanasia. The abortion opponent will therefore face a consistency problem if she wishes to allow for the merciful killing of abnormal fetuses for reasons which would not justify involuntarily euthanizing born human beings.

The interests of the potential parents in avoiding the burdens of raising a disabled child are equally incapable of justifying FAA on the assumption that the fetus is a person. Again, if the same consideration could not be used to defend the infanticide of disabled children, which it surely cannot, then the abortion opponent cannot invoke the special burdensomeness of caring for disabled children to defend concessions for FAA.[4]

Many opponents of abortion rights will happily accept these conclusions. Like Kaczor, they might be satisfied to claim that FAA is no more morally acceptable than abortions for more prosaic reasons, like the wish not to derail life plans. On this view, FAA is simply not an exceptional case when it comes to the moral permissibility of abortion, although it might be supposed that the choice to abort in the face of such serious future burdens renders the decision more excusable than it is in other circumstances.

This conclusion will of course run counter to popular morality, which takes FAA to be better justified than many other kinds of abortion. Moreover, on the view that abortion amounts to homicide, it seems to follow that even termination for a fatal fetal abnormality, where the fetus cannot survive for long after birth, is not justified—an even more counter-intuitive conclusion. We can consider, for one example, anencephaly, a severe prenatal defect which results in the early human being, if it survives all the way to birth, lacking a higher brain. Infants with anencephaly possess the lower brain parts responsible for certain kinds of unconscious regulation, like breathing, but not the cerebral cortex necessary for conscious awareness. Because of the seriousness of the condition, anencephalic infants cannot hope to survive more than a few hours or, at most, days after birth.

One question for advocates of personhood from conception is what morality dictates in the event of an anencephaly diagnosis during a pregnancy. Conventional moral thinking undoubtedly takes such a scenario to be one of the most readily justified abortions. The human being cannot survive for long outside the womb in any event, so refraining from abortion is not in the interests of sustaining life for any length of time, whereas procuring abortion at the earliest stage possible is clearly in the interests of the pregnant woman (and possibly others). On the assumption that abortion amounts to homicide, however, it is not clear that the terminal diagnosis of the fetus/future infant is sufficient to justify abortion. The direct killing of another person is not permitted on the ground that the person has little time left to live and that ending his life even sooner will spare someone else additional emotional distress (consider: a parent whose child is terminally ill cannot request that the child’s death be sped up to spare himself the emotional turmoil of watching her suffer). Aware of this problem, Kaczor opts to bite the bullet on the question of fatal fetal abnormalities and argues that even in such conditions, abortion is morally unjustifiable.^

While the position taken by Kaczor is consistent, it will seem wildly unreasonable to all but the most hard line abortion opponents. It appears, then, that when it comes to FAA, it is abortion opponents, rather than defenders, who are on the back foot. For general defenders of the morality of abortion, FAA is morally permissible for the same reason that abortion generally is. The fetus has a very low moral status and lacks a strong right to life. Consequently, the burdens associated with unwanted pregnancy, whatever the explanations, are always enough to justify abortion, or to justify it up to a fairly late stage. Even so, defenders of reproductive choice might nevertheless regard FAA prohibitions as particularly draconian in light of the extremity of the burdens they impose on the potential parents.

Yet a particular challenge might face defenders of FAA who wish to maintain that SSA is, by contrast, impermissible. That challenge arises when the burdens on parents of bearing a child of a particular sex are, owing to the context, roughly comparable in magnitude to the burdens of caring for a disabled child. We might imagine that in a pregnant woman’s individual circumstances, the consequences of giving birth to a girl (financially, relationally, and so on) are more or less equal in measure to the burdens threatening a different pregnant woman if she gives birth to a child with Down’s Syndrome. If the fetus has a low enough moral status that the parental burdens of raising a disabled child (or, alternatively, giving that child up for adoption) are sufficient to make abortion permissible, why is SSA not also permissible where the burdens of raising a child of a particular sex are comparable? By the same token, some of the arguments that are often deployed against permitting SSA can seem to count equally against FAA. I want now to look further at the possible ways defenders of abortion rights could make a conservative exception for SSA, and whether this can be consistent with a permissive stance on disability selective abortions.

!5 Kaczor (n 7) 193.

  • [1] Kaczor (n 7) 191—2.
  • [2] At the same time, it is worth noting that selective non-treatment of seriously disabled babies,resulting in their death, is often employed in circumstances in which the non-treatment of healthybabies would be medically unthinkable. For an interesting example see Jeff McMahan, ‘Infanticide andMoral Consistency’ (2013) 39 Journal of Medical Ethics 274—5.
  • [3] See ibid.
  • [4] It is an additional problem with the parental interests argument in favour of FAA that there willbe many cases in which the burdensomeness on some parents of raising non-disabled children exceedsthe burdens on other parents of raising disabled ones, depending only on the individual circumstances.If the general abortion opponent is willing to make an exception for FAA on account of the weight ofthe burden on parents, he will need to make an exception in all cases where the burden of continuingpregnancy and raising a child is equally weighty, whether or not this has anything to do with defectsor disability.
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