SCENARIO: Mrs A. was very happy with her pregnancy until, after screening she discovered her fetus has tendency for Down syndrome. Decision concerning the future of the fetus has to be made . Mrs A. wishes to terminate pregnancy but her husband wishes that she should continue with the pregnancy. This generated arguments, then whose wish should be respected concerning the fate of their fetus?
OBJECTIVE
This study will enable the family to take right decision about abortion of their Down syndrome fetus.
INTRODUCTION
There are ethical, legal, moral disagreements over termination of pregnancy and most especially fetus with Down syndrome. Abortion act 1967 gave rise to a lot of disagreement, this is also manifesting between Mr and Mrs A who find it difficult to determine the fate of their fetus with Down syndrome. This will paper address the above dilemma by giving brief definition of Down syndrome and its implication on the life of family. Parent will have adequate knowledge to take right decision about the fate of the Down syndrome fetus, through consideration of fetus personhood, mothers’ autonomy, and fathers’ beliefs. The ethical, moral and legal stand of abortion as a result of Down syndrome will be explored. Mother autonomous decision and father legal stand in the decision making regarding termination of pregnancy as result of Down syndrome. Case law samples relevant to the study will be applied and conclusion shall be reached in line with the ethical, moral and legal stand on abortion as result of Down syndrome.
What is Down syndrome?
It is a genetic abnormalities resulting from mutation in the number of chromosomes, baby is born with extra or part of 21 chromosome which give rise to 47 chromosome instead of 46 chromosomes this extra chromosome could be contributed by father or mother. Cause unknown may affect gender and races. Mother’s age is the current contributory factor, as the women advance in age from 35 years upwards the risk becomes imminent. According to centres for disease control and prevention 80%of baby with down syndrome are born to mothers younger than 35years. ( http://ww.ndss.org.)
and (http://www.cdc.gov/ncbddd/birthdefects/downsyndrome.htm )
(http://womensissues.about.com/od/reproductiverights/a/abortionargument.htm?p)
Three types of Down syndrome are:
1.Regular – trisomy 21. The cell has 21 extra chromosomes it is accountable for 94% of
Down syndrome.
2.Translocations : Extra chromosome 21 materials attached to another chromosome
Parent may be a carrier without any manifestation of the condition this account for 4% of Down syndrome.
3.Mosaic. Some of the cell have extra 21 chromosomes this account for 2% of Down
Syndromes ( Macnair Trisha and Hick Rob 2008).
The extra chromosomes changes the body and brain normal development thereby
cause mental and physical problem for the baby, which manifest in form of slanting eyes, smaller than average height, low birth weight and length, small mouth and large protruding tongue, flat bridge nose giving the face of flat appearance. Other conditions they may have are heart and hearing problems, thyroid disease later in life to mention few. (http://www.cdc.gov/ncbddd/birthdefects/downsyndrome.htm)
Centre for disease control and prevention estimate that each year about 3,357 babies.
In the United States are born with Down Syndromes, in other words about 13 of every
10, 000 babies born in the United State each year is born with Down Syndromes In other to understand the concept of abortion because of Down Syndromes. (http://ww.cdc.gov/ncbddd/birthdefects/downsyndrome.htm )accessed on 20/12/2009.
EFFECTS OF DOWN SYNDROME ON THE FAMILY
The stress that caring for baby who has down syndrome has on the family is enormous in terms of their growth, learning and social interaction, they take much of their parent time more than what it takes to nurture a normal baby. Society also discriminate against them(Anstey 2009)
Fetus perspective When the issue of abortion comes to mind, there are various things to consider which are: when life begins to matter morally, to shield light on it I shall explore Conception, personhood, law and ethics that support or against abortion as result Foetal abnormality. Conception, which is the time when sperm and ovum join to form a zygote is what those who argue that it is the beginning of life and person. Catholic theologians believe that ensoulment occurs at conception; the body is with the soul. They argue that because of this abortion is feticide it should not be done for any reason (Manson 1998, and Campbell A Alastair.1984)
Can we use this to support Mr A? Conception time is unknown, could take up to 24 hours (Singer 1995) Monozygote twin can split at any time after conception one can not be sure how many people will result ‘ and it could result in hydatidiform mole a tumour which threatened mothers life.(Glover Jonathan1990). Fertilization may result in viable fetus, which has the potential to become a person or be aborted naturally, this uncertainty made difficult to give right of a person to the fetus (Harris John 1985) because we will die should not make people to treat us as worthless. Unfertilized eggs and sperm has life and if condition is favourable and fertilization take place, they have potentials of a person but that does not mean we should treat them like a person. Foetus has potential attribute of human being like rationality and self-consciousness (Hendrick Judith 2001) therefore it should have some basic right and protection as actual human being in particular not be killed deliberately.
Abortion affect the victim, being killed one is deprived of all experiences and activities and fetus is deprived of valuable future just like one who is a person? Abortion act and United Kingdom law do not support this argument, which does not give right to fetus, over mother’s autonomous decision. Then who is a person? Someone, who is capable of given meaning to his existence,. (Harris John 1985) Warren 1997.pp84) list the following characteristic as central to the concept of personhood: ‘sentience, emotionality, the capacity to communicate, self awareness and moral agency’. Rationality, self awareness and mental capacity are some the attributed of a person Jud (Hendrick Judith 2001).There is a problem with this definition, is somebody who is unconscious due to some condition not a person.
The above characteristic distinguish a person from other creatures, no one can value is life of being without (John Harris 1985) pp18 ‘awareness of oneself as an independent centre of consciousness existing and wishing to experience’ this does not require any high rational but just ability to aspire for future. Which means any one who possesses characteristics of a person has right to life, while those who does not has lesser right. Fetus that does not possess such characteristic have lesser right to life whether normal or with disability.
Should that be a reason for abortion? No, does fetus have right to life? Because fetus has potentials of a person and has moral right to life, termination of pregnancy for any reason is wrong, anti abortion argues that it is wrong to abort fetus with potentials of future, if not aborted. Fetus is an image of what to come why must it be aborted, because aborting it is feticide.(Johnstone 1989) The liberals opposed that view they belief fetus does not possess the characteristic of a person. Aborting a fetus with Down syndrome makes no difference. Based on their arguments what does the law says about abortion because down syndromes.
Abortion act of 1967 changed in 1990, under human fertilization and embryo act specified some conditions under which abortion is allowed , these conditions are:
pregnancy is under 24 weeks, when the life of mothers in danger of permanent injury or death, and when the fetus life is also at the risk of injury, damages that could result in been born with permanent disabilities. (Holland H and Cahill 2004) According to English law fetus does not have any legal right, the only right of protection, come through the mother. However once they are delivered their right of existence begins ( Hendrick 2001) this law favour other arguments that did not recognise fetus as a person and if fetus are not recognised as person they do not have legal right outside their mother. If normal fetus has no legal right then can fetus with Down syndromes be protected?
No. The law allows termination of pregnancy for Down syndrome at any point during pregnancy, most especially if it is trisomy disability that prevent fetus from surviving
for long time after birth. Allowing law that does not recognise right of fetus means pregnant women can do whatever they want with their pregnancy, their needs a review
to safe guide the interest of fetus if animals could be protected by law. Mrs A should not be prevented from aborting her Down syndrome fetus if she wishes, because it is permitted by English law, that does not recognise fetus outside the mother, although if put at risk, as a result of assault on the mother the offender could be charged if the fetus is delivered alive.(Hendrick 2001)
United States, protects fetus against their mother by forcing mother, to have caesarean section and other medical intervention. Secondly prosecution of mothers for manslaughter, if fetus death is alleged to be caused by the mothers neglect (Margret Brazier 1992) if the above strategies is adopted the term personhood and mothers right will be affected.
In 1989 court of appeal in England in a case Re. F.(in utero) 2 All ER 193. A 36 years old mentally disturbed pregnant woman, who was put the life of her fetus to risk, was taken to court by local authority, for wardship proceedings, to safe fetus life, and risk mothers autonomy this case was dismissed , because in English law fetus has no legal right until born and outside of his mother. Such decision will contradict existing law (Hendrick Judith 2001 and Brazier Margret 1992).
MOTHER’S PERSPECTIVE
What role does mother play in this dilemma, now that fetus perspective and right is understood. The answer is not straight forward, because fetus can not regarded a person nor have legal right under English law does not mean it is morally right to allow mothers to abort at wish, without looking at mother perspectives, in terms of rights to self defence.
autonomy and ownership these shall be discussed further,
Right to self- defence:
Right to choose corroborated by right to self defence woman has right to decide whatever happen to their body, although this right is contested with fetus right to life.(Holland Stephen 2004) Women has right to terminate any pregnancy whether normal or with down syndrome, it does make any difference. In essence if any pregnancy poses risk to her and her family, she could abort it without committing any crime according to English law. Even if the termination of the pregnancy is at the cost of fetus life, (Thomson Judith J.1971) self defence in a struggle for may mean killing other to be kept alive, although this might not be possible in all situation. (Glover, Jonathan1990). Should Mrs. A .be allowed to terminate her pregnancy for self defence when it is understood, her decision will be at the cost of her fetus right to life. If allowed, could this be discrimination against people with Down syndrome. Moreover fetus is considered as an intruder which by law she is allowed to reject as a form of self defence. Her right to self defence is supported by Autonomous right.
MOTHERS AUTONOMY
Mothers autonomy : Autonomy is a Greek word (auto) self and (nomos) governance or rule. Self- government, exercising one’s right in the absence of any external influence or infringement this means there would be nothing to hinder or alter a personal choice (Beauchamp and Childress 1994) when people are allowed to choose for themselves it is an indication of autonomy (Holland Stephen 2004). Pregnant woman’s right to decide whatever happens to their body, enables them determine what would be the end result of
their pregnancy in terms of delivery or abortion. Most often their personal conditions or aspiration are uncommon influence in their decision making (Hendrick Judith 2000) .
For decision to be autonomous, an individual must be provided with adequate information, the decision should be without coercion and the individual should have capacity to consent. Autonomy of an individual could be affected if an individual lacks competence, inaccurate information, lack of control of own desire and defect in stability of own desire .(Harris John1985) should abortion be granted on basis of woman autonomy ? when it is her responsibility to preserve her fetus autonomy until such fetus is able to exercise his autonomous right. Adequate information is needed by Mrs A to make an inform decision without bias and prejudice in relation to her fetus who has Down syndrome. The attempt by her husband to stop abortion is a denial of her autonomous right as an individual who has authority to decide whatever happens to her body. The ownership argument support women right of autonomy.
OWNERSHIP ARGUMENT
This argument support autonomy and right to self-defence by pointing to the fact that women has right of ownership of their body and they can decide on whatever happen to their body. (Thomson Judith 1971) wrote an article on abortion defence; she assumed that because women own their bodies, the decision about who she allows in her womb is majorly hers. Means she has right to decide which fetus to shelter or abort. Moreover since Mrs A understand what the implication of having a baby with down syndrome is, she can not be compelled by her husband to carry pregnancy to term which means he assumed responsibility against her wish for unwanted down syndrome fetus.(Glover 1990)
There is need to provide answer to the reason why woman wants pregnancy if she was not ready to share her body with the fetus? Answer to this will contradict the arguments that support the ownership argument because the innocent fetuses irrespective of their conditions are placed at the mercy of their mothers. Shall we blame her for the decision to terminate the pregnancy? No it is not an easy decision to let go based on her expectation of the type baby she want to care for, despite every preparation her hope is dashed with the news of Down syndrome and the response of medical professional who counsel base on what could be the consequent of Down syndrome. Right of ownership does not stop at pregnancy; will she be able to give time to care for Down syndrome baby, which is a life long decision?
LEGAL ASPECTS
Woman’s rights under the abortion act 1967 The act gives right to Doctors to decide if the women meets some criteria, before the procedure is approved, in essence it means women does not have freedom to abort without the approval of Doctors.(Clarke 1990)
The 1967 act did not eradicate 1861 offence against person act section 58 and 59, but it provides basic condition where abortion is permitted (Hendrick Judith 2001)
Therefore if Doctors do not consider abortion to meet the criteria the woman has to carry the pregnancy to term against her wish, this will undermine her right of autonomy, self-defence and ownership of their body. Why must two registered medical practitioners determine what type of abortion is lawful when English Law does not recognise fetus as a person outside the mother?
The UK status law database Abortion act 1967 (c.87) it states that a person shall not be guilty of an offence under law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith.
‘[that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’] http://www.statutelaw.gov.uk/content.aspx?activetext accessed 12/01/10
Few ground upon which abortions is permitted are on social ground, preventive ground, life saving ground and eugenic or fetal disability ground. (Davies. M 1998) Considering disability ground in which handicap is to be prevented, Mrs A from all perspectives despite law that encourage medical practitioner to confirm reason for abortion there is no restriction to Mrs A autonomy in deciding what happen to her Down Syndrome fetus.
English law does not restrict her from her terminating her pregnancy if she wishes, but her husband disagree with abortion decision, if that is the case. Does Mr A. have any legal stand for stopping Mrs A’s decision? I shall look at his views and the right he has morally and legally to support his view against his wife’s decision.
FATHER’S PERSPECTIVE
Despite his wife’s decision to terminate the Down Syndrome pregnancy Mr A wants his wife to go ahead with pregnancy. Why is he opposing his wife? The reason for disagreement is based on his belief: there should be no discrimination against children with Down Syndromes, he is also a Catholic who believes in protection of unborn child irrespective of the condition. What would be the impact of allowing the father view to be given priority? The legal and moral implication of his decision will be explored.
In 1930, the papal encyclical casti connubii described abortion, as ‘the direct mother of innocent’ (Campbell A. Alastair 1984) Catholic believes that life start at conception and God infuses the soul (Brazier 1992) This view developed into his love for children with downs syndrome. Unfortunately all these can not stop his wife from terminating her pregnancy. The fetus has genetic make up from him and his wife and he was preparing for the coming baby before the unfortunate news. If both parents have contributed to fetus make up, the father should have say in what happens to the fetus. If the father right is to be enforced the result will be serious,( Harris John 1985, Hendrick Judith 2001) The woman will be compelled to carrying on with pregnancy, endure pain, inconveniences, and put her life at risk for the sake of the child she does not want. (Harris John 1985).
In English law there is no recognition of father role in abortion act of 1967 which recognised woman and medical practitioners. An indication that men has no say in abortion. Should the husband opinion be upheld, that would result denial of Mrs A her right to choose, autonomy and the ownership of her body. She will be frustrated, depressed and sorrowful throughout the period of pregnancy and after delivery. Moreover, all abortions are with contention what will be the faith of innocent fetus that is aborted everyday.
There are few cases where men have taken their wife to court in an attempt to stop abortion but they all failed. Here are the few cases in 1978 in Paton v .British advisory service a husband tried to stop his wife from having abortion, his wife got certificate from medical practitioner for the termination without informing her husband ,her husband protested and went to court to stop the abortion, but he failed. He was told that he has no right to stop abortion. He went to European commission on human right s arguing that, the decision denies him, his right to family life and unborn child’s right to life. His case was dismissed and he was told that the fetus right to life is sub ordinate to mother health and welfare.(Brazier Margret 1992 , Hendrick Judith 2001).
In C. v S (1988) a father want to stop abortion at 18 weeks stating that it contravene infant life preservation act of 1929, he was told that he does not have any right to represent the fetus to challenge abortion..(Margret Brazier 1992)
In Kelly v Kelly (1997) 2 FLR 828, Father went to represent the fetus as person with legal right, to stop abortion .The case was dismissed, the court states that fetus does not have any right of a legal person until birth. Which mean the father cannot represent the fetus. (Hendrick 2000) after the due consideration of father’s perspective what should medical practitioners do to resolve the matter.
HEALTH CARE PRACTITIONER PERSPECTIVE
Abortion is a controversial procedure in which a medical professional can refuse to participate base on their conscience except in emergency when the life of mother is at risk. This is known as conscientious objection (UKCC 1996), conscience is meditation is careful thought of previous action and their badness and goodness (Beauchamp and Childress 1994)To resolve the above matter there is need to consider carefully the three subjects of discussion .Should fathers perspective be up held by forcing Mrs A to carry on with the pregnancy ? That will amount to imposing Downs Syndrome fetus on Mrs A and upholding fetus right. This does not have legal backing, because English law does not give any legal respect to the father and fetus concerning abortion decision.
What will be the ethical, legal and moral decision by health practitioners? Medical practitioners will provide information about Down syndrome, features, their abilities, disabilities, and supports that are available. This will enable Mr and Mrs A, s’ opportunity to resolve their differences. Whatever the outcome of their decision Mrs A. s’ right of autonomy will be up held.
CONCLUSION
From the above finding’s it was discovered that fetus has no legal right over the mother nor father has any legal right to stop abortion, women’s right of autonomy and self defence were important in this decision. Despite fathers’ belief, there are strong ethical and legal reasons to allow Mrs A to choose. It is her body, if allow husband’s view to be given precedence, that would mean, denial of the mother of her right of choice and self-defence. This will expose her to pain, stress and anguish, because it is the woman who endure the risk of pregnancy, childbirth and carer role her wish to abort Down syndrome fetus should be considered, over her husband wish.
