Written by Juliette Roussel
Illustration by Anna-Oline Grarup Hertz
The question of abortion has been very important in the feminist movements and it still is. Nowadays, there are still changes in its regulations because its vision is always contested and re-questioned. Abortion is what is called a contentious issue. The discussions around that matter do not cease. Abortion is defined as the termination of pregnancy which leads to the death of the embryo (Merriam-Webster 2020). This action impacts different actors and human rights. This leads to the following question: “why is abortion such a difficult concept regarding human rights?”. I intend to argue that abortion is a complicated concept regarding human rights because this concept is at the intersection of several people’s rights. When mentioning women in this essay, I am thinking of ciswomen as being in phase with the gender assigned at birth. It is important to explain that because I try to write this essay as inclusive as I can.
To demonstrate my argument, I begin with the introduction of the broader debate around abortion. Then, I explain abortion and its effect on women and people able to be pregnant. This is followed by the right to life and the unborn child’s right entering in contradiction with the pregnant person’s rights. Finally, I demonstrate there are also discussions about the biological father’s interests and potential rights.
Pro-life VS. Pro-choice:
Abortion is a concept very contested and provoking a lot of discussions. On one hand, the pro-life camp defends the right of the unborn child, the right to life. On the other hand, the pro-choice camp criminalises abortion and claims the right to choose and freedom. Finally, in the current international law, abortion is more or less a compromise of these two previous camps.
The pro-life movement is anti-abortion (Vance 1984: 174). It stands against a strong separation between sexuality and reproduction (ibid.). Moreover, the movement claims for traditional values such as religion, marriage, reproduction and family (ibid.). Following this logic, pro-life activists defend the right of the baby and the duty of the woman to carry this baby (idem: 173-177). Indeed, these activists explain that abortion is not possible because women should follow their role of mother and thus ensure reproduction (Hirschmann 1996: 238). After all, it is needed for society (ibid.). With this in mind, abortion goes, thus, against nature. Furthermore, they often compare abortion to murder (ibid.). This gives a moral judgement of the act of aborting. This is called “legal moralism” (Hage et. al 2017: 126). This moral judgement criminalises the act of aborting because criminal law and morality are highly related (ibid.). Besides, pro-life activists fight for what they call the “right to life” and the “right of the unborn” (Hirschmann 1996: 238) which are overlapping with women’s right to abort. Hence, they criminalise abortion based on moral values.
On the other side, the pro-choice movement defends the right to abort. Their main argument to support the right to abort is the opportunity to decide when and where to become pregnant (Vance 1984: 174). This is beneficial to gender equalities because if women can choose, they decide when to get their children then they will not have to downward their career ambitions (idem: 179). Moreover, it is sexual empowerment for women because they can have sex only for pleasure and unrelated to reproduction (idem: 1). Without the fear to become pregnant, women can focus on their sexual potential and decide when they get or do not get a baby (idem: 1-10). As a matter of fact, sexual freedom and control over women’s bodies are at the centre of the argument of pro-choice activists (idem: 173-179). Furthermore, for women having economic difficulties and being willing to abort, this is their right to choose whether they have the right economic situation to raise a child (idem: 220). Thus, these activists defend the free will of women and the separation of sexuality and reproduction.
However, on each side, there are different visions and founding principles for these arguments. The discussion is still on. However, international law does not mention clearly the right to abortion but the interpretation of it by many legal scholars let think that there is a right to abort (Tozzi 2010: i). Nonetheless, there is also a conceptualisation of human rights which has an influence on abortion by the simple fact that it protects the unborn child to a certain extent (ibid.). Therefore, countries are free to interpret international law as they want and prohibit or not abortion (idem: 4-5).
To sum up, the pro-life side of the debate criminalise the act of aborting a pregnancy. On the other side, pro-choice activists advocate for the free will of people able to give birth. Finally, international law is unclear regarding abortion and leave room for countries to prohibit abortion or not. For this reason, this is a complex concept regarding human rights.
Abortion and people able to get pregnant
The right to abortion is in majority questioning the right of girls, women and every people able to be pregnant. In fact, it concerns also the intersection of LGBT+ and abortion rights. The autonomy of their body and the free will to act on it is one of their rights. It enables the separation of sexuality and reproduction. In addition, it is basic healthcare. It is also related to the question of parenthood. Finally, abortion is not only a problem for women as other people can also be pregnant and have rights.
Firstly, the right to abort allows the separation of sexuality from reproduction (Scott 1986: 40). Because of the liberation from the fear to become pregnant while being sexually active, women can focus more on their desires and pleasure (Vance 1984: 174-175). Furthermore, women have never been given an important and powerful sexual role in comparison to men (idem: 244-246). The vulnerability of women in their sexual life in front of pregnancy put women in a weak position compared to men (idem: 444). As matter of fact, men lose control over women’s sexuality if they have access to abortion (Hirschmann 1996: 228). The opportunity to abort empowers women in their sexual life because it rules out the risk to be pregnant that cismen do not have in their sexual life. Therefore, it is important for gender equality.
Secondly, abortion debates challenge the right to autonomy of the body because if abortion is illegal, then people are forced to be pregnant, thus do not have a free choice over their bodies (Amnesty international 2020: 4). In addition, to be in control over a body, it is also to be in control of one’s life (Erdman and Cook 2020: 20). Obviously, being pregnant is significant for the future life of the pregnant person because it is a radical change in life and for the body as well. To illustrate, giving the choice to women is a way to leave them the decision, the free will on what is right for themselves. Thus, nobody will decide on their life. This is their liberty right.
Thirdly, the right to abortion is a basic healthcare right. Undoubtedly, pregnancy has an impact on one’s mental and physical health, thus it can be dangerous for someone to carry a child (Erdman and Cook 2020: 20). Moreover, criminalising abortion will not stop it but only makes it less safe (idem: 12-13). With this in mind, on the health level, it is a genuine problem to criminalise abortion because it will generate accidents (ibid.). Apart from physical health problems, prohibiting abortion has effects on mental health for example in the case of sexual crimes such as rape, incest or sexual assault (idem: 14-15). In the case of sexual crime, the intercourse was forced and thus the pregnancy as well (ibid.). Mentally speaking it is traumatising to force people to get an unwanted baby from rape (ibid.). Furthermore, aborting is not an easy decision, people taking the process of abortion need medical support (ibid.). For that reason, for example, in France, the period of time when you can get an abortion has been proposed for an extension because it has been demonstrated that people were under important pressure and that it was not leaving enough time for people to choose (Cordier 2020). Hence, women have to go abroad to get an abortion (ibid.). Therefore, abortion is a question of the right to healthcare as well.
The act of aborting impacts also socio-economic rights. In fact, being able to abort is also being able to decide when someone wants to have a child (Erdman and Cook 2020: 20). This ensures to women have wanted a child when they estimate that it is the right moment for it (ibid.). Moreover, it differentiates women from their mother role because they have the choice to become a mother or not (Hirschmann 1984: 227). They are no longer automatically seen as a mother as they have the choice not to become one (ibid.). They can have the same career opportunities as men because they can decide when to have a child (ibid.). Hence, abortion is again important to enforce gender equalities and protect women’s rights.
Finally, abortion is not only a question of a woman. In the abortion debate, there is also LGBTQ+ rights at stake. Since the beginning of this essay, I have talked a lot about women but also people able to become pregnant such as transgender and nonbinary people. The question of queer couples on the topic of abortion is often left aside. Abortion is omnipresent in feminist discourses and the defence of women’s condition. Although not only women can be pregnant as much as not every woman can be pregnant. In fact, ciswomen, if they are fertile, can be pregnant as well as non-binary and trans people (Van Horn 2019). Therefore, they are also concerned by the question of abortion but their experience is often invisible because of the lack of information and research on the queer community on that issue (ibid.). The fact that the women’s situation only is discussed when talking about abortion excludes the other people also getting abortions who are not women (ibid.). There is a need for including trans and gender-nonconforming people in the discourse of abortion (ibid.). Implementing gender-neutral communication about abortion would enable to also highlight the situation of trans and non-binary people regarding abortion. As a consequence, there is work to do in human rights’ conceptualisation to include all people able to be pregnant to the question of abortion.
In short, abortion concerns mainly women’s rights because it is a question of their body and what do want to do with it. In addition to this, this enables the separation of sexuality from reproduction but also of women from mothers. It is as well a basic healthcare right. Finally, there is a need to work on the inclusion of people able to get pregnant from the LGBT+ community because the recognition of the LGBT+ people is also a right. Therefore, the right to abort concerns largely the people able to be pregnant.
Abortion and the right to life, human rights
However, another actor’s right enters in contradiction with women’s rights: the right to life. First, the baby even unborn is a human. Second, if the baby is considered as a human before birth then they have status coming with rights. Lastly, the viability of the foetus can be a reason to limit the right to abort.
The right to life is in contradiction with the right to abort because aborting means interrupting pregnancy and thus the foetus’ life. This is why pro-life activists argue that aborting is killing (Hirschmann 1996: 238). Nevertheless, the whole complexity of the question is around the status of the foetus. In the case of the right to life of the unborn child, the question is when does this foetus or baby get the legal status of a human being giving them rights. Consequently, the possession of rights by the foetus stays unclear.
The right of the unborn child depends on what is seen as a human in law. This means that the right to life of the child begins where their legal status begins because, from the beginning of its conception, the foetus is human which does not mean that they have legal status. However, several definitions of human rights leave space for interpretation of the delimitation of humans and, thus, of human rights-holders (Hage et. al 2017: 268). In that manner, since it is based on the conceptualisation of the human being, it is related to the conceptualisation of human rights as a whole. For instance, in Amnesty international’s policy on abortion, they clearly state that human rights begin at birth (Amnesty International 2020: 9). With this in mind, when you get out of the woman’s body, you become a human with rights. Where the Human Rights Declaration of the United Nations (UN) states that everyone has access to human rights and freedom, it does not specify when it begins to apply (United Nations 1948). The case of the European Commission states that the right to life begins at birth (Pignarre 2019). Therefore, it is unclear when a foetus becomes a human and a right holder.
This complexity of the definition of when the embryo or foetus becomes a human and right holder makes their legal status harder. To put it differently, the embryo or foetus is not seen as a human before birth if it has no legal status before birth. For instance, in the United States (US) law, an embryo or foetus has the legal status of a property before birth and of a person after birth (Jost 2002: 646). As a consequence, it would be the property of the pregnant person till birth which means that she would have the freedom to act upon it. As another example, in French law, the limitation of the human being, holder of rights, is life and death (Pignarre 2019). In other words, a person alive has rights. However, an embryo or a foetus is alive even though it is not born yet. This illustrates the issue with the defence of the foetus’ rights.
Another criterion for the defence of unborn children’s rights is the viability of the latter. Particularly, in US law, the viability of the foetus can be a reason for some states to limit the right to abort (Jost 2002: 634, 635). It would mean that the handicapped unborn child would not have the same rights. Additionally, it would mean that the foetus can begin to have some rights when they become viable. Therefore, an argument to limit pregnant people’s rights would be the viability of the foetus before birth.
As mentioned previously, the right of the unborn child enters in confrontation with the women’s rights in the name of the right to life. However, there are many different manners to conceptualise the human being, rights holder. For this reason, there are many different interpretations of unborn child rights. Therefore, some may argue that the rights are obtained at the birth of others when they become viable.
The biological father
Some could comment that the father should have a say on abortion because of his genetic input. However, a cisman is not able to be pregnant and will not physically be impacted by abortion.
The position of the father on the issue of abortion is rarely discussed. Obviously, in the conception of a baby, the father participates by giving his genes. With this in mind, he is also a parent with an opinion on the foetus and whether he wants to take care of a baby or not. In some regulations, it is a matter of the legal position of the father in the process of abortion. For example, in US law, there is a consideration of paternal interests in the case of abortion (Diggins 1989: 396-397). However, it is not clearly stated the legal rights they have but there is a “paternal’s rights jurisprudence” (ibid.).
Understandably, the father may be involved in pregnancy, but the disruption of pregnancy does not physically affect him. Cismen cannot become pregnant which means that they do not have to physically go through the pregnancy and feed the foetus. In that manner, they do not provide any physical effort during a pregnancy. They cannot experience an abortion. While they may be emotionally impacted by abortion, the decision remains with the pregnant person who will have to go through this physically and emotionally. Moreover, contrary to the person giving birth, the father can avoid his responsibility towards the baby. It is more difficult for the mother to do so. In that manner, it is fair to leave the whole decision to the woman or pregnant person. The father can morally have a say but not legally. Furthermore, outside of heterosexual logic, there are more actors than the mother, the father and the unborn child. For instance, in lesbian couples, the question of the father does not come up as he only has a position of genitor. Consequently, the legal position of the father on the abortion question is not needed.
In summary, the father may have an interest in the decision to abort. However, he cannot be pregnant, and thus, will not be touched physically. This is why he cannot have a legal position on the act of aborting. As a result, the majority of the right is on the person pregnant and the rest on the unborn child.
To conclude, the topic of abortion is highly contested in diverse aspects. Pro-life and pro-choice movements face each other on this topic. After having discussed the different angles of human rights on abortion, the people able to be pregnant such as ciswomen, trans and non-binary people are the most concerned by abortion rights because abortion protects a lot of their rights. Abortion could indeed be seen as contradicting the right to life. However, the status of the unborn child highly depends on the conceptualisation of human rights and each legal system. In the case of the biological father or the unborn child, abortion does not affect significantly their rights. The people able to be pregnant are the most concerned by the action of abortion because their rights are clearly influenced by the obtention of this right.
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