Tan Seow Hon For The Straits Times

Parsing the 24-week rule for abortions

Risk to women cannot be the sole concern in abortion laws: The relative rights of the unborn and pregnant women should be weighed. -- PHOTO: ST FILE
Risk to women cannot be the sole concern in abortion laws: The relative rights of the unborn and pregnant women should be weighed. -- PHOTO: ST FILE

The Ministry of Health recently sought feedback on pre-abortion counselling guidelines.

There is, however, another oddity in abortion laws which should be reviewed - the time limit for legal abortion. Under the Termination of Pregnancy Act, abortion is allowed up to 24 weeks of pregnancy without restriction as to reason.

The general principle undergirding permissive abortion laws is the woman's autonomy over her own body. When the unborn is an undesired "encroachment", it is thought that the woman should be allowed to remove it.

Save in exceptional circumstances, however, the unborn's presence in the woman's body is not truly an encroachment, unlike an assailant hitting us and encroaching on our physical integrity.

Many unwanted pregnancies are a foreseeable consequence of unprotected sex to which the woman has consented. Moreover, the idea of encroachment fails to make a case for protection of the unborn from 24 weeks onwards. If there is truly encroachment, it exists through the pregnancy.

What then might account for the 24-week rule?

One common argument relates to the viability of the unborn - its likelihood of surviving outside the womb, which is thought to correspond with gestational age. With appropriate medical technology, a baby born at 24 weeks may be able to survive, and thus deserves protection, so some may contend.

But, so what if an unborn is viable at 24 weeks? Unless one is prepared to say that, instead of aborting once the unborn has a chance to survive, the doctor should perform a Caesarean section ("C-section") to free the unwilling woman, and let the foetus have a chance at life, by continuing its development in the neonatal intensive care unit?

On such reasoning, the woman's autonomy can be accommodated: At viability, she should not undergo an abortion but instead a delivery via C-section. This would then give the foetus a shot at life.

Clearly, this is ludicrous. No one actually argues that the woman should go for a C-section at viability. In spite of theoretical viability, the unborn continues to need the woman's womb. Therefore, the viability argument should not be relevant.

Alternatively, we might think that human life begins (and human rights accrue) when the unborn has the ability to survive independently outside the womb. Despite the fact that no C-section will in fact be performed, the unborn then has rights against the woman.

Linking when human life begins to have the ability to survive outside the womb is, however, irrational on principle. It would mean, as Boston College philosopher Peter Kreeft has argued, that someone who existed before medical technology was developed was not a human being at 24 weeks, but is a human being as a result of technology. How can the definition of a human being depend on technological advances?

Further, the unborn living in an underdeveloped part of the world without access to medical technology who can be expected to die if removed from the womb, would be regarded, by such reasoning, not to be a human life, while they would be if they were in Singapore.

Some proponents of the 24-week limit might say that the unborn's viability is not the pertinent basis. Late-term abortions are restricted as they involve risk to the life and health of women.

But this, too, is problematic.

Risk to women cannot be the sole concern in abortion laws: The relative rights of the unborn and pregnant women should be weighed.

If risk is the sole concern, the unborn is no better than a clump of cells.

This view is worse than the viability argument, which at least regards the unborn as having some rights in the third trimester.

Second, if the health and life of women are the primary concern of permissive abortion laws, in view of suggestions in recent years of the risk to, and long-term physical and psychological effects of abortion on, women, proper study is timely and abortion laws should be reviewed.

Even if there were little risk to women of late-term abortions, many, I imagine, would remain squeamish. An intact dilation and extraction (IDX) or partial-birth abortion procedure, banned in the United States, is said to involve pulling the unborn out from a breech position, making an incision in the skull, suctioning the brains so that the skull collapses, and removing it through the cervix. A dilation and evacuation (D&E) procedure in late term may involve injections to cause foetal demise and the evacuation of dismembered parts.

But why should we be squeamish about late-term abortions? Is it only because what is involved in late-term procedures forces us to confront the humanity of the unborn? But if the unborn is thought to be human at 24 weeks, why isn't it at 23 weeks? Or 18? Or four?

In abortion debates, I have observed that pro-choice advocates love to dismiss arguments of pro-life advocates for being based on religion.

However, it is science - not religion - that reveals that unique DNA, distinct from gametes from either parent, is carried by the embryo. Moreover, as Princeton philosopher Robert George noted, unless "severely damaged or deprived of a suitable environment", the embryo is capable "by an internally directed process of integral organic functioning" of developing "to each more mature developmental stage along the gapless continuum of a human life".

Women may play complex classical tunes to their unborn hoping that a world-class musician will be birthed. But aspects of the development of the unborn across the embryonic and foetal stages of life, and likewise, of the newborn across infancy, childhood, puberty and adulthood are internally directed by DNA.

Most of us know we are very different now, as adults, from the infants we once were when we were just born. But we recognise "the gapless continuum of a human life", and do not think the infant versions of ourselves were somehow not "us", just because they were a fraction of our current stature or had not attained puberty. The infant and adult us are one and the same person, with unique DNA that we possess from the moment we were born.

Significantly, though, this same DNA is already present at the embryonic stage, directing development prenatally and after.

Might this not suggest that "the gapless continuum of a human life", and therefore, personhood, began at the embryonic stage?

stopinion@sph.com.sg

The writer is an associate professor at the Singapore Management University.