“Nah Go a Jail Again, Oh No”: A Philosophical Consideration on the Development and Challenges of the Abortion Debate in Jamaica.
August 6, 2008
Lecturer /Research Associate
Centre for Gender and Development Studies
University of the West Indies
Jamaica, West Indies
Phone: (876) 977-7365
Email: firstname.lastname@example.org or email@example.com
Demographic and Epidemiological Context
It is estimated that approximately 210 million pregnancies occur globally every year. Of this total about 46 million (22 per cent) end in induced abortion. Twenty million (20 million) or nearly half of the induced abortions annually are estimated to be unsafe (WHO,1992 & 1998). The majority of unsafe abortions (95 per cent) occurs in developing countries. It is estimated also that on a global level, there is a ratio of one unsafe abortion for every seven live births but that in some regions, the ratio is much higher. For instance, in Latin America and the Caribbean, there is more than one unsafe abortion for every three live births (WHO, 1998). For the English Speaking Caribbean, the ratio is usually considered somewhat lower given the relatively higher prevalence of contraception and the easier access to safe abortion services. The Programme of Action of the International Conference on Population and Development (ICPD) indicates that unsafe abortion is a major public health concern.
Unsafe Abortion and Maternal Mortality
Maternal deaths were estimated at 529,000 world-wide in 2000 (WHO, UNICEF & UNFPA, 2003). These deaths were almost equally divided between Africa (251,000) and Asia (253,000), with about 4 per cent (22,000) occurring in Latin America and the Caribbean and less than 1per cent (2,500) in the more developed countries. In terms of the Maternal Mortality Ratio (MMR), the estimate for the world was 400 per 100,000 live births. By region, the MMR was highest in Africa (830), followed by Asia (330), Oceana (240), Latin America and the Caribbean (190) and the developed countries (20). For the English Speaking Caribbean sub-region, the MMR was lower than the LAC region. In the case of Jamaica, it was estimated at about 106 in 2000. WHO estimates that approximately 13 per cent of maternal deaths are currently due to complications of unsafe abortion, amounting to 68,000 world-wide.
Characteristics of Jamaica: Geography
Population: 2,804,332 (July 2008 est.)
Population density: 259 people per sq km land area
Age structure: 0-14 years: 32% (male 455,871/female 440,928)
15-64 years: 60.6% (male 837,241/female 861,906)
65 years and over: 7.4% (male 93,415/female 114,971) (2008 est.)
Population growth rate:0.779% (2008 est.)
Infant mortality ratio: 15.57 deaths/1,000 live births male: 16.19 deaths/1,000 live births female: 14.92 deaths/1,000 live births (2008 est.)
Life expectancy at birth: total population: 73.59 years male: 71.88 years
female: 75.38 years (2008 est.)
Total fertility rate: 2.3 children born/woman (2008 est.)
Ethnic groups:black 91.2%, mixed 6.2%, other or unknown 2.6% (2001 census)
Religions: Protestant 62.5% (Seventh-Day Adventist 10.8%, Pentecostal 9.5%, Other Church of God 8.3%, Baptist 7.2%, New Testament Church of God 6.3%, Church of God in Jamaica 4.8%, Church of God of Prophecy 4.3%, Anglican 3.6%, other Christian 7.7%), Roman Catholic 2.6%, other or unspecified 14.2%, none 20.9%, (2001 census)
(Statistical Data provided by exxun.com website)
Methodology of Research
The methodology of this paper relied on two sources: primary and secondary data. Primary data was collected by means of questionnaires. Theses elite questions provided more comprehensive data on and understanding in the issues of the abortion debate. The secondary data was used in an effort to encapsulate the review of existing literature abortion, published statistics, case studies, public ministry papers, official documents and academic and reputable websites on the internet. These two sources of data collection serve to identify most of gaps in the abortion debate.
Religious Teachings on abortion in Jamaica.
The most vocal religious groups in the abortion debate in Jamaica include:
Roman Catholic Church Beliefs: Beliefs about abortion have evolved over time in the Roman Catholic Church. In the 17th century, the concept of “simultaneous animation” gained acceptance. This is the belief that an embryo acquires a soul at the time of conception, not at 40 or 80 days into gestation as the church had previously taught. In 1869, Pope Pius IX dropped the distinction between the “fetus animatus” and “fetus inanimatus”. Canon law was revised in 1917 and 1983 to refer simply to the “fetus”. Current teachings regard the fertilized ovum, embryo and fetus to be full human beings. Abortion on any grounds, including the saving of the life of the mother, is murder. This is the general position adopted by Catholics world wide inclusive of Jamaica Catholic teachings.
Protestant Churches Beliefs: Protestants teachings in Jamaica differ widely on their beliefs about abortion. Some are close to the Roman Catholic’s position while others permit abortion on grounds of rape, incest, threat to the mother’s life and severe fetal abnormality. Protestants generally oppose abortion as a means of contraception and as an option for an unwanted pregnancy.
When does life begin?
A review of the literature proved to be useful. A number of individuals have deduced that the answer to the question ‘when does life begin to matter morally?’ is the same as the answer to the question ‘when does life begin?’ The moment of conception may seem to be the obvious answer to the question of when life begins. It is an identifiable event from which point the egg begins the continuous process that leads to maturity. But of course the egg is alive well before conception and indeed it undergoes a process that leads to maturity. But the egg is alive well before conception and indeed it undergoes a process of development and maturation without which conception is impossible. Also, the sperm is alive and wriggling. Life is a continuous process that proceeds uninterrupted from generation to generation continuously evolving. It is not, then, life that begins at conception. But if not life, is it not at least the new individual that begins at conception?
A number of things may begin at conception. Fertilization can result not in an embryo, but in a tumor which threaten the mother’s life. The tumor, called a hydatidiform mole, would not presumably be invested with all the rights and protections that many believe spring fully armed into existence at fertilization.
Even when fertilization is, so to speak, on the rights tracks, it does not result in an individual even of any kind. The fertilized egg becomes a cell mass which eventually divides into two major components:
the embryoblast and the trophoblast. The embryoblast becomes the fetus and the trophoblast becomes the extra embryonic membranes, the placenta and the umbilical cord. The trophoblastic derivatives are alive, are human, and have the same genetic composition as the fetus and are discarded at birth (Harris 11).
A further complication is that the fertilized egg cannot be considered a new individual because it may well become two individuals. The fertilized egg may split to form twins and this can happen as late as two weeks after fertilization.
Life then, is a continuum and the emergence of the individual occurs gradually. At this point it is commonly opined that if life does not begin at conception and if it cannot be said that a new individual human being begins there, at least the potential for new human beings is then present complete with its full genetic make up and with all its uniqueness and individuality. And since the fertilized egg is potentially a human being we must invest with all the same rights and protections that are possessed be actual human beings. This we may call ‘the potentiality argument’.
On the contrary, the potentiality argument has two sorts of difficulty, which are jointly and severally fatal to it. The first is that the fact that something will become X (even if it will inevitably become X, which is far from being the case with the fertilized egg and the adult human being) is not good reason for treating it not as if it were in fact X (Harris 11). We still all inevitably die, but that is I suppose, an inadequate reason for treating us now as if we were dead.
The second difficulty is that it is not only the fertilized egg that is potentially a human being. The unfertilized egg and the sperm are equally potentially new human beings. To say that a fertilized egg is potentially a human being is just to postulate that if certain things happen to it (like implantation), and certain other things do not (like spontaneous abortion), it will eventually become a human being. But the same is also true of the unfertilized egg and the sperm. If certain things happen to the egg(like meeting a sperm) and certain things happen to the sperm (like meeting an egg) and thereafter certain other things do not (like meeting a contraception), then they will eventually become a new human being.
It is sometimes objected that it is only the fertilized egg that has all the necessary potential present in one place, so to speak, and it is this that is crucial. It is only when the egg has been fertilized, so the argument goes, that a new unique entity exists that itself has all the potential necessary to become a new human being. This seems plausible enough until we remember that something had the potential, had also the potential to become whatever it is that the fertilized egg has the potential to become!
If then we ignore the first difficulty with the potentiality argument, and concede that we are somehow morally required to actualize all human potential, we are all for a highly exhausting time. Also, it is clear that if we put the maximal effort into procreation that this imperative demands, our endeavours will ultimately be self-defeating.
All that can be securely assumed of the fertilized egg is that it is live human tissue. Life itself does not begin at fertilization, for the egg and the sperm are alive also. Life continues, and so what we need is not an account of when life begins but of when life begins to matter morally. Clifford Grobstein’s answer to this question has been influential, and it is worth looking at what he proposes.
When does self begin?
Grobstein argues that what matters is not the beginning of life, nor yet of human life, but of self. Self for Grobstein is personhood, that which makes us ‘characteristically human’, that which has an ‘inner’ life. A self will have a sense of self, and this means in effect self- awareness. Self is not just sensation, it is sensation within a bounded object that is the physical equivalent of the discreteness of the feeling of self (Harris 12). This is a fairly minimal conception of self, as we shall see, and Grobstein offers three criteria of recognition of the presence of self. First, a self will exhibit ‘behaviour diagnostic of a rudimentary self-state’, (Harris 12) and this behaviour would be some minimal response to external change. The example offered of such a response is the situation of an embryo by stroking its skin with hairs, and the response ‘was a slow and weak turning of the head away from the stimulus’ (Harris 12).
The second criterion is the possession of ‘non-behavioural functional processes (Harris 13). An example of such a process is the nervous system and the criterion is that ‘the self be capable of being recognized as a self by others’( Harris 13). The first two criteria are very rudimentary and do not in fact distinguish persons from animals, or even the human fetus from that of most animals. For these reasons, Grobstein is forced to place all the burden of recongnition of self in this third criterion:
The question is to determine when in development the embryo or fetus is generally recognizable human and evokes empathy as another self. Prior to that point, assumption of the presence of an inner self requires some objective evidence of its existence. Subsequent to that point the burden of proof shifts. A self is to be assumed unless there is strong evidence to contrary. The question thus becomes the stage at which the embryo or fetus can first be generally recognizes as human, generating empathy as a person or a person to be (Grobstein 12).
By showing us diagrams of more and more humanoid fetuses Grobstein is able to persuade us that the stage in question is that the end of the first trimester of pregnancy, and that this point happily coincides with ‘the first time at which it has been traditional to change the term embryo to fetuses as the designation fro the developing human. This recognition of self by others is necessary, Grobstein believes, to get over the problem familiar in philosophy as the problem of other minds:
Although we directly know the experience of self only individually-as an internal state-we infer it in others and they in us. In the process, the sense of self is affirmed and reinforced. In that sense the self is partly a product of social interaction. In particular the social status of personhood is accorded through recognition and acceptance by others. Recognition and empathy register by observers are especially important criteria for assessing levels of selfness when policy issues are at stake (Grobstein 13).
While Grobstein is doubtless right to see the sense of self as partly the product of social interaction, he has no reason to suppose that recognizing a fetus as distinctly humanoid is any evidence at all of the presence of the requisite inner qualities. What reason is there to suppose that we feel empathy only in the presence of self-awareness? Why should we not assume that the empathy evoked by the sight of the 3 month –old fetus is just the soggy sentimentality classically evoked by proximity to dependent sentiment creatures, like puppies?
When does life begin to matter morally?
Grobstein promulgates that we as human beings need a way recognizing others as persons rather than animals, machines or collections of living human cells (223). If the social and moral status of person is accorded through recognition and acceptance by others, it is so accorded we may hope with justification. People are not people because they are accepted, but rather they are accepted because they are people. The question must be, what should lead us to accept the embryo or the fetus or the neonate or the child or anything all as having that range of qualities that make them persons. In virtue of what are we morally required to accept something/ someone as a person, and consequently morally required to refrain from treating them in ways that we may not treat people?
There seems to me to be two different strategies that might be adopted in attempting to discover just what it is that entitles an individual to be considered a person. Although each strategy is distinct, they each seem to point towards the same sort of answer. While no answer to such a profound and difficult question is likely to be entirely satisfying or uncontroversial, the convergence of these two strategies upon one sort of answer is encouraging.
The first strategy involves looking at what it is that’s so different about a person that justifies our valuing such a creature above others. This strategy treats as unproblematic the question of what it is that makes the lives of people valuable, and concentrates on examining which of the differences between people and other creatures seem to be relevant to the question of their differential value. This is the strategy adopted by Grobstein and, as we have seen, the features to which he points do not in fact distinguish persons if any are- normal adult human beings- and can find features of their lives or capacities, which unlike differences of the ‘featherless biped’ type, incline us to judge their lives of more significance and value than lives which lack such features, we might come close to a concept of the person.
What features, for example, do we possess, that, if we were to encounter similar or related features in beings from other worlds, would incline us to accept that there were all people on other planets and that we had at last made contact wit them? This strategy for identifying the defining characteristics of a person by pointing to features that could in principle be possessed by beings other than human has a distinguished history. John Locke, in the second half of the seventeenth century, produced an elegant account, although it must be admitted that he was not looking for beings from other worlds. What he was thinking about, however, was how to distinguish persons from other creatures in a way that made sense of the difference in value that we lace upon them:
…we must consider what person stands for; which, I think is a thinking intelligent being, that has reason and reflection, and can consider itself, the same thinking thing, in different times and places; which it does by that consciousness which is inseparable from thinking and seems to me essential to it; it being impossible for any one to perceive without perceiving that he does perceive
This account, making a combination of rationality and self-consciousnesss the distinguishing features of a person has much to recommend it. The rationality required is of a fairly low order just sufficient for the individual to ‘consider itself the same thinking thing in different times and places’; and for Locke self-consciousness is simply the awareness of that reasoning process.
Certainly, Locke has gone far enough to distinguish persons from other creatures, animals among others. He has isolated features of the person that we value having and which make the whole business of valuing other things possible. Valuing is a conscious process and to value something is both to know what we value and to be conscious of our attitude towards it. Any rival account of what is to be a person would have to isolate features that were similarly valued by us and which were of the sort to account for the peculiar status that we give to creatures possessing such features.
Before taking the concept any further we must examine the second strategy, which involves asking what it is that makes life valuable. Like the question of the meaning of life, that of the value of life, when put in such broad terms, seems unanswerable. Not because there is no answer, but rather because there are so many answer! There are likely to be, and perhaps are, as many accounts of what makes life valuable as there are valuable lives. Even if we felt confident that we could give a very general account of what makes live valuable for human beings, perhaps by singling out the most important or most frequently occurring features from the lists of what they value of a large cross-section of people, we would have no reason to suppose that we had arrived at a satisfactory account. For one thing, human beings reasons for valuing life might well change over time; but more importantly, there would be no reason to suppose that our list bore any relation at all to the account that might be given of the value of life by non-human beings, human on other worlds.
This problem need not, however, bring our investigation to a halt before it has taken off, for the point of the question lies not so much in our arriving at a satisfactory account of the value of life, but rather in our discovering a way of knowing when we are confronted with valuable lives. Our interest is in knowing when we are confronted with valuable lives, and there may be good reasons for being much surer of this than of the value of any of the features that are supposed to make life valuable. If there are, as there may well be, as many accounts of what it is that makes life valuable as there are valuable lives these accounts in a sense cancel each other out. What matters is not the content of each account, but rather that the individual in question has the capacity to give such an account.
The point is this: if individuals allow that the value of life for each individual consists simply in those reasons, whatever they are, that each person has for finding their own life valuable and for wanting to go on living, then individuals do not need to know what the reasons are. All we need to know is that particular individuals have their own reasons, or rather, simply, that they value their own lives.
Should valuable lives be ended?
All human beings have in common the capacity to value our own lives and those of others, however different our reasons for doing so may be or may seem to be. I believe those rather simple, even formal features of what it takes to be a person- that persons are beings of valuing their own lives- can tell us a good deal about what it is to treat someone as a person. They can tell us how to recognize other beings as people, and they also tell us why it’s wrong to kill such creatures against their will. They are individuals because they are capable of valuing life and it’s wrong to kill because they do value life.
The wrongness of killing another person is, on this view chiefly the wrongness of permanently depriving her of whatever it is that makes it possible for her to value her own life. So that although each person may find different and unique value in their own life, each is equally wronged by being deprived of a life, the continuation of which they value. We can thus see what is wrong with prematurely ending such a life without in any way sharing the values that make recognize them as persons and appreciate the wrongness of killing them, without any understanding of ‘what makes them tick’ or of what they could possibly value: so long as it was clear that they are capable of valuing their own existence.
It is imperative to be clear that it is the capacity to value one’s own life that is crucial, for of course those with the capacity to value their own lives may not in fact do so. This does not make them any the less persons, for only someone with the capacity to value their own life could disvalue it. But where people do not in fact value their own lives or do not want their lives to continue then of course it will not be wrong for them to kill themselves, or for others to help them do so, or for others to kill them at their request. So that on this conception of the person neither suicide nor avoiding suicide, nor voluntary euthanasia will be wrong, for individuals by wishing to die show that they do not value life, or that they value death more. To aggravate the aspiration to die will or this inspection be as ghastly as exasperating the aspiration to live, for each case we would be negating the value that the individuals themselves put on their lives.
The concept of the person
On the explanation that has emerged, a person will be any being capable of valuing its own existence. Apart from the advantage of its simplicity, this explanation has two other major advantages. Firstly, it is value-and species-neutral. It does not imply that any particular kind of being or any particular mode of existence is more valuable than any other, so long as the individual in question can value its mode of existence. Once this threshold is crossed, no individual is more of a person or more valuable than any other. This concept of the person sets out to identify which individuals and which forms of life have the sort of value and importance that makes appropriate and justifies our according to them the same concern, respect and protections as we grant to one another. Also, it tries to do so without begging any questions as to the sort of creatures that will be found to qualify.
Secondly, it is capable of performing the two tasks we require of a concept of the person. These are that it should give us some grasp of why persons are valuable and make beings. The second task is that it should enable us, in principle, to tell persons from non-persons.
On this concept of the person, the moral difference between persons and non-persons lies in the value that people give to their own lives. The reasons it is wrong to kill is that to do so deprives that individual of something they value, and of the very thing that makes possible valuing anything at all. To kill a person not only frustrates their aspirations for their own futures, but frustrates every aspiration a person has. Creatures that cannot value the own existence cannot be wronged in this way, for their death deprives them of nothing that they can value.
Of courses non-persons can be debilitated in other ways, by being subjected to pain for example, and there are good reasons for avoiding subjecting any sentient creatures to pain if this can be circumvented. Furthermore, the idea that persons are being proficient of valuing their own existence gives us a way, at least in principle, of recognizing persons when we confront them, although in particular cases they may be no easy issue.
How do we recognize persons?
Usually this is simplicity itself. If we want to know whether or not an individual value their own existence we can ask them; and their ability to answer or even to entertain the question will show that they have the requisite capacity. We could say, then, that language is the hallmark of self- consciousness. Any creature with even the most rudimentary form of language will be able to let us know that it values and wants to go on living. Moreover, language is the only vehicle we know of for self-consciousness. With language we can display, through commentary, that awareness of our awareness that is self- consciousness. It is apposite that our thoughtful self-monitoring process is sometimes called the ‘internal soliloquy’.
The problem is of course to tell whether creatures that do not have or do not appear to have language are or not self-conscious and s capable of valuing life. If they have language they can value life, but could they do so without language?
Animal psychologists have developed tests which do indicate that some creatures have developed a rudimentary self-awareness. Normally animals do not recognize their own reflections in mirrors, responding to those reflections as if to other members and their own species, by hostile display. However, some chimpanzees and orang-utans seem to become aware after a while that the mirror image is of themselves, using it to inspect inaccessible parts of their bodies. A simple test has been devised to see whether monkeys understand that the mirror image sis of themselves. By painting a red patch on both the wrist and the forehead of the monkey, experimenters were able to tell the sheep from the goats. Some monkeys showed no interest in the reflections, although they were interested in the patches on their wrists, while chimps and orang-utans immediately scratched their own foreheads rather than the reflected ones.
While it is difficult to resist the conclusion that this demonstrates some degree of awareness of self in those chimps that recognize that the reflection is of themselves, it does not seem enough to attribute to them the sort of self-consciousness that would enable them to value their own lives. They would, for example, need no conception of themselves as existing over time with a future that they wished to experience in order to recognize that a reflection in a mirror was of themselves.
Abortion and Jamaica’s Law
With reference to right to life is whether the provision in Article (61) of the ICCPR, asserting the inherent right to life of ‘every human being,” and prohibiting the arbitrary deprivation of life, may be interpreted as a legal barrier to abortion. Here, the argument would be that life begins at conception and that, therefore, the termination of pregnancy at any stage involves the deprivation of life, possibly in contravention of Article 6 (1). Whatever merits this approach may carry in realm of morality (Tooley 749); it is difficult to sustain as a matter of treaty law under the ICCPR in the light of the travaux preparatoires concerning this instrument. More specifically, when Article 6 (1) was being drafted, there was an attempt to introduce the issue of abortion, so that the provision on the right to life would read, in part, that: “From the moment of conception, this right shall be protected by law” (International Covenants on Human Rights 92-93). This form other words was expressly opposed by some States, and a proposal containing this idea was rejected by a vote of 31 to 20, with 17 abstentions, in the Third Committee of the General Assembly in 1957 (United Nations General Assembly, Report of the Third Committee 119). Among the reasons advanced for opposition were the impossibility of identifying accurately the moment of conception, and the fact that different countries had already adopted divergent rules on the question of abortion (United Nations general Assembly, Report of the Third Committee 112). These reasons may not be decisive in themselves, for instance, it has been suggested that difficulties concerning the determination of the beginning of life should prompt the State to consider fetal life without reference to time periods within pregnancy (Demerieux, Fundamental Rights in Commonwealth Caribbean Constitution 127-128). On the other hand, for the present purposes, the points is that the reference to protecting life “from the moment of conception” was not accepted by the States which drafted Article 6(1)- a conclusion which supports the view that Article 6(1), in its final treaty form, was not intended to provide legal obligations for the States on the controversial question of abortion.
The result is that Jamaica, like other States, is not constrained by the ICCPR in the formulation and implementation of the country’s legal regime concerning abortion. On the Contrary the form of words rejected for the ICCPR is, broadly speaking, to be found in Article 4(1) of the American Convention of Human Rights, which states:
Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrary deprived of his life.
On its face, Article 4 (1) would seem to protect life from the moment of conception, and thereby act as a restrictive provision on abortion. If, therefore, Jamaica were to contemplate a permissive regime for abortion, it would be necessary to reconcile that approach with the country’s treaty obligations under the American Convention. However, any assessment of the impact of the American Convention on abortion in Jamaica would also need to take into account the Baby Boy Case in which a majority of the Inter- American Commission rejected the idea that Article 4(1) prohibited abortion in all circumstances (Human Rights Law Journal Vol. 2, 110). Specifically, the majority in this case noted that Article 4 (1) represented a compromise between States which wanted the life protected from conception and those had laws permitting abortion for a number of reasons, and emphasized that the use of the phrase “in general’ in Article 4 (1) could possibly allow abortion in cases of rape or to save the mother’s life, among other responsibilities (Human Rights Law Journal Vol. 2, 3-4).
Within Jamaica, the right to life as enshrined in the Constitution has not been invoked in domestic courts in opposition to abortion activities in practice. Rather, the question of abortion has been assessed mainly by reference to the offences against the Person Act. Section 72 of that Act Stipulates that:
Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with like intent…shall be guilty of felony, and, being convicted thereof, shall be liable to be imprisoned for life, with or without hard labour.
Section 72 also imposes life imprisonment upon persons who “unlawfully” procure a miscarriage, while Section 73 indicates that it shall be a misdemeanor “unlawfully” to supply or procure any implement “knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman.
The particular language relied upon in both sections 72 and 73 has prompted the view that there is a broad prohibition on abortion, especially as the Offences against the Person Act contains no express exception that would, for instance, allow abortions to protect life or privacy rights of the prospective mother. This interpretation is, however, open to question, mainly because Sections 72 and repeatedly prohibition abortion-related activities that are undertaken “unlawfully” by the prospective mother or third parties: prima facie, the context and use of the term “unlawfully” prompt the suggestion that there is a range of unlawful activities that could give rise to abortion, and that such activities are not prohibited by Section 72 and 73.
This line of reasoning was appealing to Macnaghten J. in Roe v. Borne. The case concerned a prosecution under Section 58 of the English Offences against the Person Act, 1861, which, in relevant part contained the same form of words set out in Section 72 of the current Jamaican legislation. In interpreting this meaningless word, and, on the basis, therefore, that there were “unlawfully” is not Act, a criticism which strongly undermines this perspective. In subsequent cases, though. Macnaghten J.’s approach in Bourne has been followed at first instance. For example, in R. v. Newtonn and Stungo, Ashworth J., in his direction to injury, noted that the use of an instrument to procure a miscarriage “is unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman. R v. Newton and Stungo may have expanded on Bourne in the sense that Ashworth J. expressly mentioned that preserving the health of the mother, as distinct from her life, may justify an abortion in particular cases, however, if anything, this emphasizes that subsequent courts have been prepared t read words into the language of Section 58 of the English Offences against the Person Act in a manner similar to Macnaghten J.’s approach.
By extension, it seems likely that Jamaican courts would be prepared to do the same, and that, as result, Section 72 and 73 of the Jamaican Offences against the Person Act should be read as prohibition abortion, and the procuring of implements with a view to committing abortion, save in the circumstances where the abortion is done in good faith for the purpose of preserving the life or health of the prospective mother. However, this statement I believe like Stephen Vasciannie is necessarily tentative, for Bourne is a decision at first instance, it relies on a tenuous reading of the relevant statutory provision, and it was made at a time when technological advances in the field of therapeutic abortion were relatively underdeveloped. Moreover, even if Bourne is correct in the common law, it provides only limited guidance in practice, for the concepts of “good faith” and “actions necessary to preserve the life (or health) of the mother” are broadly subjective. It is also noteworthy that, in Jamaica, the medical professional as a group appears to have doubts about the legal rules concerning the circumstances in which abortions may be legitimately performed. These considerations point to the need for more precise, modern legislation o the subject. In formulating new statutory provisions, the State may opt to take into account approaches to abortion from other jurisdictions and it will need to reconcile any provisions with the terms of the American Convention on Human Rights. It will, not however, be seriously constrained by the right to life language set out in Article 6 of the ICCPR.
Philosophical Challenges of the law on Abortion in Jamaica.
Under the Abortion Act 1967 a doctor is often free to terminate a pregnancy, with the intention of killing the fetus, without committing an offence under ‘the law relating to abortion (Commonwealth Countries Abortion Act 1967). The Act provides that a registered medical practitioner who terminates a pregnancy is not guilty of an offence under the law relating to abortion if two registered medical practitioners are of the opinion, formed in good faith that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant women or any existing children of her family, greater than if the pregnancy were terminated; or that there is a substantial risk that if the child were born it would suffer from physical or mental abnormalities as to be seriously handicapped. Where these conditions are fulfilled the termination of pregnancy (in authorized place) does not amount any offence of abortion, however far the pregnancy has progressed. But there are circumstances in which an ‘abortion’, which is lawful for the purpose of the law relating to abortion, may nevertheless amount to the offence of child destruction, or even to murder.
The offences of child destruction were created by the Infant Life (Preservation) Act 1929, and the continuing effect of that enactment is specifically preserved by the Abortion Act 1967. There are undoubtedly some circumstances in which an abortion would be lawful for the purposes of the law relating to abortion, yet nevertheless amount to the offence of child destruction. The difficulty lies in determining the extent of the protection afforded fetal life by the Infant Life (Preservation) Act.
Before the enactment of the Infant Life (Preservation) Act, it was widely
accepted that it was possible to avoid criminal liability by killing a child in the course
of normal birth, but before it was fully born. As such conduct did not involve an
attempt to procure a miscarriage, it did not amount to an offence of abortion. As the
child was not fully born, it was not murder. Earlier attempts to plug the gap had not
met with success and in June 1928 Talbot J. said “It is a felony to procure abortion
and it is murder to take the life of a child when it is fully born, but to take the life of a
child while it is being born and before it is fully born is no offence whatever.
Although the Bill was introduced to plug the gap between abortion and murder, the
Act does more than that. It imposes some restrictions on the killing of unborn children
before, as well as during, birth. The Long Title of the Act describes it as “An Act to
amend the law with regard to the destruction of children at or before birth”(Law,
with intent to destroy the life of a child capable of being born alive’ and that very few
of these are for the purpose only of preserving the life of the mother. If this is so, then
some medical practitioners are frequently committing the offence of child destruction.
The controversy about the scope of the offence depends in large measure on the
Interpretation of the terms a child capable of being born alive, and preserving the life
of the mother, so it is necessary to examine them in some detail.
An unborn child which is capable of surviving indefinitely outside its mother’s body is viable and is undoubtedly a child capable of being born alive for the purpose of the Infant Life Act. Hence, it is established on all parts that if a doctor intended to obliterate the life of a viable fetus and his act did in fact do so, he would commit the offence of child destruction unless he acted in good faith for the purpose only of preserving the life of the mother. Except in the circumstances specified in the proviso, the effect of the Act is to prohibit the killing of an unborn but viable child, as well as the killing of such a child in the course of birth. It is irrelevant that the doctor complied with the provisions of the Abortion Act 1967, and is therefore not guilty of any offence under the law relating to abortion. The disagreement arises over whether an unborn child, which is not capable of surviving indefinitely outside its mother’s body is a child capable of being born alive, for the purpose of the offence of child destruction. On the face of it, at least some non-viable fetuses do come within the scope of the phrase a child capable of being born alive, for it is well established that a child capable of being born alive, for it is well established that a child can be born alive, for the purpose of law of homicide, even though it is not viable. Furthermore the Act does not contain any express reference to viability. It speaks of capacity to be born alive, not of capacity to survive after birth. On this interpretation, many terminations of pregnancies which are performed in circumstances specified in section 1 of the Abortion Act 1967 contravene the Infant Life Act. It would often be possible to perform an abortion in such a way that the child showed signs of life after it was clear of the mother’s body. Many fetus which are not yet viable could be regarded as being, in sense, capable of being born alive.
However, judges would be very unenthusiastic to adopt an interpretation of the Infant Life Act which outlawed the abortion of non-viable fetuses, if the abortion were performed on grounds specified in section 1 of the Abortion Act. To avoid this consequences they might be willing to develop more stringent criteria for live birth, or to adopt a restrictive concept of child, But they would not need to do this, for there is an indication in the Act itself that it should not be interpreted as protecting the live s of all those who are capable of being born alive, for the purpose of the law of homicide.
Section 1 (2) of the Infant Life Act provides that:
For the purpose of this Act, evidence that a woman had at any material time been pregnant for a period of twenty eight weeks or more shall be prima
facie proof that she was at that time pregnant of a child capable of being born alive.
In 1929 it would have been possible to remove, or cause to be expelled, from the mother’s womb, a child which had been conceived much less than twenty- eight weeks earlier, yet which would have shown signs of life- even breathed – after it was clear of its mother’s body. But by the time a woman had been pregnant for twenty –eight weeks there would have been the possibility, not simply of the child being born alive, but also of its life being sustained indefinitely. In other words, by this time the child could quite possibly be viable. Thus, section 1 (2) implies that the concern of the Infant Life Act is to protect the lives of viable fetuses, rather than of fetuses which could not survive outside their mother’s bodies.
It would be wrong to interpret the phrase ‘a child capable of being born alive’ in section 1 (1), without taking account of section 1 (2). Therefore, section 1 (1) should be construed as protecting the lives of viable, but not of non-viable, but not of non-viable, fetuses. This interpretation avoids thwarting the clear intent of the Abortion Act 1967 to enlarge the circumstances in which it is lawful to kill a non-viable fetus. But it does have the disadvantage that, on this view, the Infant Life Acts fails to chose completely the gap between the termination of a pregnancy and murder. If a non-viable fetus miscarriages spontaneously, or is being born prematurely, it would not be an offence to kill it intentionally during the course of birth, even though it would be murder to kill it intentionally once it was fully extruded from its mother’s body. However, this gap is of little practical importance. However, this gap is of little practical significance. Even if non-viable child was alive during the course of birth, there would already be imminent and inevitable. The serious gap in English law, was that it was not an offence to kill a viable child during the course of birth. There are reasons why people might wish to kill a child which would not die within a short time in any event. The Infant Life Act supplements the protection afforded by making it an offence to act to kill such a child before it has an existence independent of its mother, unless the act is performed in good faith for the purpose only of preserving the life of the mother. Section 1 (2) was included to assist in problems of proof, as it would sometimes be intricate to establish whether the child was or was not viable.
An interpretation of the Infant Life (Preservation) Act 1929 that leaves a small but, in practice, trifling gap in the protection afforded non-viable children during the course of birth is preferable to one that ignores section 1(2) and has the effect of frustrating the clear intent of the Abortion Act 1967. That act was enacted on the basis that the Infant Life Act would provide continuing protection for viable, but not for non-viable, fetuses. Section 5(1) of the Abortion Act provides that nothing in this Act shall affect the provisions of the Infant Life Act 1929 (protecting the life of the viable fetus). Although the words in brackets cannot be taken to provide an authoritative gloss on the earlier Act, they do make it still more likely that a judge would adopt the view that the Infant Life( Preservation) Act protects the lives of only those fetuses that are viable.
The attention must also be focused on the life of the mother. Before someone can be convicted of child destruction, it is not enough for the prosecution to prove that that person has ‘with intent to destroy the life of a child capable of being born alive’ by ‘any willful act’ caused a child to die ‘before it has an existence independent of its mother’. It must also be proved that the act which caused the death ‘was not done in good faith for the purpose only of preserving the life of the mother’.
It would be reasoned to assume that ‘preserving the life of the mother’ is the same as ‘preventing the death of the mother’. Had it been intended that a viable child could be killed intentionally for any other purpose, this could easily have been spelt out. For example, section 1 (4) of the Abortion Act provides that the usual requirement concerning the opinion of two registered medical practitioners and the restrictions as to place, do not apply where the doctor believes that the abortion is immediately necessary ‘to save the life or to prevent momentous undeviating injury to the physical or mental health of the pregnant woman’ (Skegg 12). This provision does not affect the offence of child destruction, but its reference to ‘grave permanent injury’ to the mother’s health contrast s with the proviso to section 1 (1) of the Infant Life Act, which refers solely to ‘preserving the life of the mother’.
Primary Data- Questionnaires
From a total of 125 hundred questionnaires given out to university students, administrators, lecturers, tutors, pastors and some members of the wider society 100 questionnaires were returned. From these it can be inferred that 74% of the total number of females believed that life begins at the moment of conception, whereas 68% males are of the opinion that life begins at conception. There was however some similarity in the way both males and females responded to the question of abortion being a moral issue. 76%of both sexes hold that abortion is indeed a moral issue.
The response regarding the circumstances under which abortion could be permitted differed between males and females. In the case of rape and the mothers life being at risk, the percentages of males was higher in both instances. For males’ 86% and 80% respectively and females 56% and 66% respectively. On the other hand, the data reveals that the females opted more for abortions in the cases of the fetus being deformed and the mother’s sanity being at risk for females 46% and 40% respectively and fro males 40% to 32% respectively.
When asked what should a woman do if she experiences life threatening problems with her pregnancy? 64 % of the total numbers of males are of the opinion that women should have an abortion if she experiences life threatening problems during pregnancy, however only 58% of the females believe she should terminate the pregnancy. On the contrary, 20% of the females believe she should await divine intervention or allowing nature to take its course, whereas only 18% of the males are of this opinion.
Conclusion and Recommendations
Based on the findings -the primary and secondary data -there are six grounds that one possibly should bear in mine when making any legal, religious or ethical decision on abortion:
A Threat to the Woman’s Life: According to the UN, almost all countries (98 per cent) allow abortion to be performed to save the life of the pregnant woman. Although countries may list what they consider life-threatening conditions, the final determination, however, often rests with the clinical judgment of the woman’s doctor.
A Threat to the Woman’s Physical or Mental Health:Approximately 65.0 per cent of all countries permit abortion legally to preserve the physical or mental health of the woman. Abortion may be permitted to avert the risk of injury to the pregnant woman’s health. When ‘mental health’ is specifically mentioned in abortion law, it is mainly interpreted to mean psychological distress caused by, for example, rape or incest or by diagnosis of fetal impairment.
For Rape or Incest: In 43.0 per cent of all countries, rape or incest is interpreted as falling within the mental health grounds for abortion. It is accept as evidence in Jamaica that some women may have a right to terminate her pregnancy in the case of rape or incest.
For Fetal Impairment: Fetal impairment as grounds for abortion is permitted in 39.0 per cent in most countries. Possibly, Jamaica could consider modeling this. Fetal impairment for abortion is also increasingly being permitted by countries with otherwise restrictive abortion laws. This is so for the reason that such conditions can now be easily diagnosed and many of which are incompatible with life or independent life of the affected child. In some countries, fetal impairment is usually interpreted under the mental health grounds for abortion. Jamaica could model this or consider this ground in the review of the Law on abortion.
For Economic and Social Reasons: Most countries where abortion is permitted on economic and social grounds (33.0 per cent) interpret the law to include the pregnant woman’s social and economic environment, whether actual or foreseeable. Some of these laws also include the extension of risk to cover any existing children of her family which may be caused by an additional child.
On Request: This can be done in Jamaica only as best practices. In some countries (27%), abortion is allowed under the law without the woman giving a reason. These countries recognized that women may request abortion for one or more of the above stated grounds. All the grounds for abortion are therefore considered legitimate under law.
These grounds seem to be based on how one perceives when life begins to matter morally. Some very interesting arguments for abortion have been presented. The pro- life seems to present a more convincing argument. It has been said that person’s genetic makeup is established at conception, and once established it programs the creation of a unique individual, then the human being exists from the point of conception onward and must be valued as a human life. People have not been able to agree on when actually begins and in the religious sense, when the human soul is present, then by valuing a conceptus as human form conception onward we are ensuring that we do not act immorally towards human life. On a legal note, it is clear that the law on abortion needs to revisited. Clearly, this order does not allow one to commit an abortion based on the circumstances surrounding conception – be it rape, incest or failure to meet financial obligations
Baker, Lawrence C. “Abortion.” Encyclopedia of Ethics. Garland Publishing, London 1992: 56-59.
Bumpass, Larry L. “Abortion and Public Opinion: Demographic and Measurement Contexts”: CDE Working Paper No. 95-14, Center for Demography and Ecology, University of Wisconsin-Madison, May, 1995
Clark, Lorenne M. G. “Boys Will Be Boys: Beyond the Badgley Report” Canadian Journal of Women and the Law, Vol. 2 No.1, 1986
Cook, Rebecca, J etal, “The Injustice of Unsafe Motherhood in Law and Bioethics”: C. Blackwell Ltd. 2002