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Feb 06 - Should Gibraltar Make Abortion Legal?

By Kate Llufrio

Abortion: why there is no easy answer, but there is a rational argument.

In the recent debate on whether Gibraltar should make abortion legal, Mr Mark Montegriffo makes the statement that ‘there is no good argument against abortion’. In this response, it is argued that there is no easy answer, but there is certainly a rational argument to consider. It is not as simple as being ‘pro-life’ or ‘pro-choice’ and the issue cannot be reduced to a simple for/against debate. The intricacies of what each option would mean must be carefully explored – personal judgements aside.

While on the philosophical issue of when ‘life’ begins there can be no consensus (and therefore arguments on this basis are unlikely to be fruitful), decisions about the actual practicalities of introducing abortions would require consensus to be reached in law. It is not just saying ‘yes’ to legalising abortion – most, though not all, would submit that there would be limits to this. What those limits would be and why, are far from clear, as other countries who have attempted to legislate in this area have found.

These issues are uncomfortable and difficult to consider, but a crucial part of informed choice.

Abortion on request

The least restrictive scenario, (sometimes referred to as ‘abortion-on-request’), is where abortions are allowed for any pregnant woman, up until the point of birth, at any gestation and for any reason – the choice is completely with the mother. China, North Korea and Vietnam are among the most ‘permissive’ countries in this respect (in contrast to the argument that abortion laws are a feature of ‘progressive’ societies). Gender selection in these countries is rife and cannot be legislated against if the choice is to remain completely with the pregnant woman (whether her choice is influenced or even dictated by those around her is a separate but important issue).

Surgical abortion

Where legal gestational limits are not imposed, this has implications for the methods of abortion that are used. For countries that allow abortions beyond approximately 15 weeks, the size of the foetus (approximately the length of your palm or larger) has obvious implications in terms of extraction. It becomes necessary to dilate the cervix, with the extent of cervical dilation required depending on the gestation and on the type of extraction used. The more dilation required, the longer this can take to achieve – as with any delivery, dilation has to be done slowly to avoid damage. It can take up to a few days, so is not appropriate in emergency life-threatening situations.

The American College of Obstetrics and Gynaecology (ACOG) have argued that the safest option for women beyond approximately fifteen weeks gestation is the procedure known colloquially as ‘partial birth abortion’ and medically as ‘intact dilation and extraction’ (D&X). However, this has been banned by the US Congress Partial-Birth Abortion Ban Act (2003) which defines "partial-birth abortion" as follows:

“An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus”.

In other words, the greater part of the foetus is delivered before terminating. The ’overt’ act referred to is usually suctioning of the cranium to remove the brain and then crushing of the skull to allow it to be extracted more easily. The ban has been taken up by about half of American states but whether the law is unconstitutional has continued to be disputed e.g.  Gonzales v. Carhart (2007).

Nonetheless, as a result of the legislation, most abortion providers in the US now induce foetal demise before attempting an ‘intact’ delivery. This is usually achieved through saline infusion, where a toxic solution is injected into the amniotic fluid, or the use of a foetal injection (most commonly potassium chloride), which causes foetal cardiac arrest. While these methods are almost always effective at causing foetal demise, there is a risk of them failing, and (albeit rarely), this gives rise to ‘live birth abortions’. Where the live foetus, (having now been born it is legally a ‘baby’), is within the gestational range where it could survive outside the womb, this presents a significant ethical and legal dilemma – are medical teams legally obliged to provide treatment to preserve life in live-birth abortions as they would with a premature delivery? Would refusing such medical treatment be illegal and/or unethical? Where does this leave the mother? The legal age of ‘viability’ is defined as the point at which fifty percent of infants are likely to survive, and is the point at which medical teams are legally obliged to provide life-preserving treatment. What impact does this have on doctors working to improve outcomes for infants born around legal ‘viability’ and who may have that fifty percent chance of survival? The earliest known gestation for survival is twenty-one weeks while the legal age of ‘viability’ in the UK currently stands at twenty-four weeks (it was previously twenty-eight).

One solution that avoids the danger of live-birth abortion is to use the Dilation and Evacuation (D&E) procedure instead. It is the most commonly used legal option in countries that allow abortions beyond the first trimester. Another of the medical advantages of D&E is that the cervix is only partially dilated, so it takes less time to set up and is less likely to cause damage to the cervix. However, it can still take over a day to prepare the cervix for D&E so it is not usually appropriate in emergency life-threatening situations. Since the partially dilated cervix does not allow for the whole of the foetal body to be delivered, the procedure involves the foetus being dismembered in-utero using surgical instruments to facilitate its removal in smaller pieces. Whether foetal demise is induced beforehand varies (and depends on whether the foetus is believed to be capable of perceiving ‘pain’ – a poorly understood concept in medical terms). The medical disadvantage of D&E is that at later gestations, the procedure carries more risk of damage to the uterus, which is where the D&X procedure previously described has been advocated e.g. by the ACOG.

Gestational Limits

Where countries have attempted to legislate on imposing gestational limits to abortion, there has been no clear consensus of what those limits should be. US Federal policy has attempted to introduce restrictions to abortions beyond twenty weeks. Internationally, and particularly within Europe, the majority of countries restrict abortions beyond twelve weeks. The UK has a comparatively more permissive limit of twenty-four weeks gestation, except if the mother’s life is at risk or the child would be born with a severe disability, in which case abortions are allowed at any stage. The twenty-four week ‘cut-off’ is based on the legal ‘age of viability’ as described previously and has been contested on the grounds that medical advances are allowing more and more babies to survive at earlier gestations. Where earlier gestational limits to abortions have been imposed in other countries, these have been subjectively decided – there is no ‘medical’ or legal argument for any particular gestation to be the cut-off. While the twelve-week limit is suggested as the point at which spontaneous miscarriages are less likely to occur, pregnancy losses sadly happen well beyond this limit. Indeed, as a result of the UK laws on ‘age of viability’, losses before twenty-four weeks are not registered and so there are no reliable statistics on which to base research or support.

Disability

In light of the UK implementing different legislation for foetuses identified as having a disability, the Disability Rights Commission argued for a violation of equal rights. The implication that a ‘healthy’ baby is worth protecting more than one with needs, they contend, is that it sets people with disabilities as ‘second rate’ citizens whose lives are not worth living. Some would argue it can be a slippery slope to eugenics (improving the ‘qualities’ of the human species or a human population by eradicating those seen as less desirable). Whether particular disabilities constitute ‘severe’ for the definition of abortion is, in any case, subjective and varies across countries.

In the UK, the timing of the twenty week ultrasound scan generally offered to pregnant women is such that most detectable foetal abnormalities are found just within the ‘general’ abortion limit although in these cases the limit would, in any case, be lifted. In the UK, at least one or two abortions a year are reported to be carried out beyond thirty seven weeks gestation i.e. full term, on grounds of disability. Increasingly, advances in pre-natal screening allow doctors to detect some potential disabilities earlier in the second trimester e.g. through genetic testing. However, not all disabilities can be detected in-utero e.g. many hearing/visual impairments and conditions such as Autism Spectrum Disorders or intellectual impairments. In addition, not all disabilities are present from birth and can arise for a whole range of issues other than genetics e.g. cerebral palsy. Who decides which disabilities are ‘severe’ enough to warrant abortion? Spina-bifida? Cystic fibrosis? Cleft-palate? Club-foot?

One area which is hotly contested is the case of Down’s Syndrome, one of the genetically detectable conditions usually screened for pre-natally. As recently as December 2017, Ohio introduced laws to prevent abortion on the grounds of Down’s Syndrome. While under-reporting in the UK makes it difficult to obtain accurate statistics, it is estimated that approximately ninety percent of women whose foetuses are diagnosed with Down’s Syndrome opt for abortion, and with the advent of early prenatal screening there has been a rise in Down’s terminations in recent years. In Iceland, the situation is such that almost one hundred percent of women terminate known Down’s pregnancies so that there is now only one or two Down’s Syndrome births a year. One consequence of this is the creation of a vicious cycle, whereby exposure to fewer people with Down’s Syndrome (or other disabilities) reduces the public’s awareness, knowledge and experience with the condition, as well as reducing availability of support services for individuals and families affected by disability. This then makes it more likely for mothers of foetuses with disabilities to feel that they need to opt for abortion.

Rape

In the oft-cited, tragic, but thankfully rare occurrence of pregnancy-by-rape there are, again, practical and ethical considerations. Who determines it was rape? The legal process undoubtedly takes much longer than the time-frame required for abortion. In some countries e.g. Spain, the woman must first report the rape to the police to qualify for abortion on these grounds. Could this give rise to situations where desperate and vulnerable women may seek to access abortions by declaring rape, even if they then recant the accusation after being granted the procedure?

Risk to health

In the other oft-cited but again thankfully rare occurrence of immediate risk to the mother’s life, where a later term abortion might be sought, the procedures, as explained above, take up to several days to complete. Emergency delivery by caesarian section (although of course not without its own risks), is always by far the quickest way of ending a mid-to-late-term pregnancy to protect the mother’s health (and may also give the foetus a chance of survival) e.g. in cases of eclampsia and pre-eclampsia. In early life-threatening pregnancies such as in the case of ectopic pregnancies, surgery to remove the pregnancy is already legal. In such cases, the foetus is sadly, beyond saving, but surgery could be life-saving for the mother.

Where we take a broad view of ‘health’ to include mental health (as I believe we always should), then allowing abortions on this basis reverts back to the abortion-on-request argument, as mental health difficulties can arise at any point in the pregnancy. In legislating for abortions on the grounds of risk to a woman’s health, some countries have therefore included the qualifier ‘where this cannot be averted by other means’. Rarely is it the case that there are no other means and those means, I would argue, are what we should be focussing on.

Rights of medical staff

These are but some of the ethical dilemmas posed in the ‘practicalities’ of legislating abortion. There are of course, also issues of personal moral/ethical/religious beliefs to consider, particularly for the medical staff directly involved in performing the procedure. What (if any) policy of conscientious objection should there be? Arguably, allowing individual doctors to refuse to perform abortions could affect a woman’s access to one, whereas obliging doctors to carry out the abortion may impinge on their human right to respect for their personal beliefs. Employing only doctors that agree to carry out the procedure would be to actively discriminate against people on the basis of their beliefs. There is no easy answer.

No easy answers

I would argue that in all issues of abortion, there is no easy answer. There is certainly no simple ‘for’ or ‘against’ answer that can cover all scenarios or allow for consensus to be reached. There is no ‘model’ answer we could import from other countries either, no consensus on ‘best practice’ – in all countries there continues to be debate about the ethics of their specific abortion policies. Whatever we choose to legislate to allow will create a set of ethical considerations of its own – only by engaging in debate on these issues can people make a truly informed choice about what we feel our laws should really be ‘for’ or ‘against’.

And yet, I would contest, whatever the law, there will always be consequences and those consequences will always, unfortunately, tragically and inevitably, cause suffering to one or another individual or group of people. Acknowledging that suffering, looking at the underlying causes and drivers, and considering how we can limit it is, in my opinion, the question we should be asking ourselves. That, I would argue, does not necessarily mean legalising abortion (whatever definition of ‘legalised abortion’ we may choose).

Editor’s note: The opinions expressed in this opinion piece are those of Ms Llufrio and not those of any organisation or employer.


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