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Abortion in England, Scotland and Wales

Human Fertilisation and Embryology Act 1990. This states that a registered medical practitioner may lawfully terminate a pregnancy, in an NHS hospital or on premises approved for this purpose, if two registered medical practitioners are of the opinion, formed in good faith. The UK abortion Act 1967 section 1 allows a pregnancy to be terminated only if in the opinion of two doctors, it has gone beyond its 24th week and carrying the baby to term would involve risk greater than if the pregnancy were terminated, or of injury to the physical health or mental health of the pregnant woman or any existing children of her family. [1]

The Abortion Act 1967 gives no right to a father to be consulted in respect of a termination of pregnancy. It also gives no right to the mother either, but as the mother is going to be in the middle of the matter consulting with two registered medical practitioners in their opinion, where they are to arrive at a decision in good faith. It is arguable that the father has a right to have a say in the destiny of the child he has perceived. The Abortion Act 1967 gives him no such right it contains no such provision. A man has no right to prevent his wife or girlfriend from having a legal abortion and the foetus, whilst unborn, therefore he cannot be a part of a legal proceedings established for that purpose. [2]

Conversely, it is wrong to assume that women have any legal right under the Abortion Act 1967 since it does not entitle them to demand an abortion, even during the earliest stage of pregnancy. Alternatively it gives doctors the right to decide whether a woman in particular circumstances meet the terms for an abortion specified in the act. However, the Offences Against the Person Act 1861 section 58 and 59 will not hold liable a medical termination of a pregnancy but only if unlawfully administering any poison or noxious thing is an offence for the purposes of criminal abortion. It is suggested that more consideration should be given to the hurt done to a man whose fatherhood is denied. [3]

As in the case of Paton v British Pregnancy Advisory Service [4] where there have been attempts to prevent an abortion it was held that a father has no rights in respect of an unborn child and the Abortion Act 1967 gave him no right even to be consulted prior to an abortion. In this case it was said that the father had ‘no legal right enforceable at law or in equity to stop his wife having this abortion or to stop the doctors from carrying out the abortion’. Although the abortion was performed, the father took his case to the European Commission on Human Rights arguing that this decision infringed the European Convention on Human Rights. Whereas he argued that his right to family life and the unborn child’s right to life had been infringed, the Commission dismissed his claim.

It was held that where an abortion was carried out on medical grounds, his right to family life must necessarily be subordinated to the need to protect the rights and health of the mother. It appears that if the father pursues a claim for locus standi [5] in challenging a decision to stop his wife would be confined to challenging the decisions of two doctors supposedly made in good faith that a proposed abortion would be lawful within the scope of the Abortion Act 1967. [6]

In the absence of the statutory rights for the father the courts have also refused to allow him any recognition in the abortion process. As in the case C v S [7] a father applied unsuccessfully for an injunction to prevent the unmarried mother who was under 24 weeks pregnant at the time from having an abortion. As required by the Abortion Act 1967 two doctors had certified that continuing the pregnancy would involve a greater risk to her health than if the pregnancy were terminated.

The father, who applied both on his own behalf and as next friend of the unborn child, insisted that an abortion would amount to the offence of child destruction carrying a maximum sentence of life imprisonment under section 1 (1) of the Infant Life Preservation Act 1929. The offence occurs where ‘any person who, with intent to destroy the life of a child capable of being of being born alive, by any wilful act causes a child to die before it has an existence independent of his mother’. [8]

Similarly, in the case of Kelly v Kelly [9] under the Scots law a father failed to obtain an injunction restraining his wife from having an abortion. The question was whether an abortion could amount to an actionable wrong against the father therefore he would be entitled to take legal proceedings on behalf of the foetus. It was held that it was not an actionable wrong. Treating the foetus as a person with actionable rights was wrong in the father’s argument. As under Scots law the foetus was part of the mother’s body and had no independent right to remain in the womb therefore the case and no foundation and was dismissed. [10]

In contrast giving women solely the right because of the greater impact on women of pregnancy and childbirth the issue of contraception and abortion are occasionally linked together, but these issues are separate. Most people think that there is an important moral difference between not starting a life and ending a life. For instance a philosopher has said it is reasonable to give to infants and foetuses a right to live whilst denying that ova have a right to be impregnated. In the case of abortion a pregnancy has begun, and the foetus will suffer harm if it is aborted Birth control works before pregnancy begins, not until the sperm fertilises the egg there is nothing that is going to suffer loss therefore the issue is different from abortion. Since the egg and sperm would cease to exist whether fertilisation takes place or not, it cannot be said to suffer loss, either. [11]

Certain methods of contraception act after the egg has been fertilised but before a pregnancy has been established. Some people regard this as an early abortion, and describe such techniques as ‘abortifacient’ [12] . People who object to all forms of abortion regard such contraceptive techniques as morally wrong. There are some problems with the ‘morning-after pill’, a form of emergency contraception which many people consider a potential form of abortion. Morning-after pills are high-dose birth control pills. They work in various ways by stopping eggs being released, by inhibiting the sperm or preventing the implantation of a fertilised egg. [13]

It is also often the case that the right to control one’s own body as a key moral right. If women are not allowed to abort an unwanted foetus they are deprived of this right. The argument for women’s rights in favour of abortion is that a woman has the right to decide what happens with her body therefore having the right to decide whether the foetus remains in her body. This issue also brings many notions about human rights that a human being has the right to own their own body therefore a foetus is part of a woman’s body which means that a woman has the right to abort a foetus they are carrying. However, in a US Supreme Court decision in Roe v Wade [14]  a view was supported when it ruled that a woman’s right to terminate her pregnancy came under the freedom of personal choice in family matters and was protected by the 14th Amendment of the US Constitution. [15]

This allows an argument to claim that it is unethical to ban abortion because doing this denies freedom of choice to women and forces them to bear the unwanted. Critics of this argument attack the idea that a foetus is part of a woman’s body. They argue that a foetus is not the same as an organ which is a part of woman’s body, but to some extent it is a separate person with life. Another objection to this argument is that people do not have the complete right to control their bodies. All people are subject to various restrictions on what they do with their bodies and some of these restrictions such as laws against euthanasia are just as intrusive. [16]

The issue of abortion is mainly concerned to dealing with the rights of the foetus and the mother. The rights and concerns of the father are rarely considered. The other scenario concerning fathers and abortion is when the father wants the mother to have an abortion and she does not. However, sometimes the mother wants an abortion and the father wants her to have the baby. Therefore, it is fair to say that abortion is morally wrong because it challenges the father’s rights and does not work vice versa.

However, the philosopher George W. Harris has put forward the idea that there are circumstances under which a woman’s decision to have an abortion would be morally wrong because it would do harm to the father. A woman can legally deprive a man of his right to become a parent or force him to become a different person. This is sometimes the case when the father has a morally legitimate interest in having a child, and the mother misleads the father into believing that she will give him a child for certain requirements, and the father fulfils those requirements for the specific purpose of having a family, then it is wrong for the mother deliberately to prevent the father from having that child and the Abortion Act not giving a right to the father for having that child.

There are some objections to this by saying that the wrong comes from the deliberate misconduct of the mother, rather than from any moral right of the father. As Harris has argued that abortion itself causes a further harm to the father in addition to the deception which is a separate wrong. [17]

In conclusion, it is understandable that the decision to have an abortion rests entirely on the medical practitioners and the mother who has a moral right to decide what happens to her body but the Abortion Act is unacceptably discriminating against men on their moral rights by depriving them the right to stop their partners from having an abortion. This means that a woman can effectively abort a foetus entirely without the father’s knowledge, or his consent. Many have argued that as the foetus is contained within the woman’s body, the decision to abortion should lie with the woman. However, there is an alternative argument that the foetus contains half of the father’s Deoxyribonucleic Acid (DNA), and half of the woman’s. Therefore, if a woman consents to sexual intercourse, it should be assumed that she has reasonable knowledge of a subsequent pregnancy and the effects.

Due to the consent, and apprehension, and half of each partners DNA, the father should have the legal right to block the abortion of his child. The unborn child is a life in which should not just be considered an extension of the body, but an element of both the father and mother. However in a case study Holmes 2004, which demonstrated the effects on a young man, who learned that his partner had an abortion 6 months after the abortion occurred. Holmes had described the feelings of the father to be worthless, and voiceless, and a threat to his belief system as a result. [18]

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