ABORTION: New Ethical (And Legal) Challenges
Humans have argued for millenia over when human life begins and what its value is. Ancient Middle Eastern law codes: Ur Nammu (Sumer, reigned 2047-2030 BC) to Hammurabi (Babylon, reigned 1792-1750 BC) considered the fetus to be equivalent to a body part of the mother, both of which belonged to the father. Ur Nammu’s law code prescribed that someone who accidentally caused the loss of a fetus would have to pay a ten shekel fine. Even causing an intentional miscarriage was not a capital crime. The value of a fetus ranged somewhere between the fine for a slap in the face to smashing a limb in a fight. Hammurabi’s Code was similar, probably taken from Ur Nammu. The fine for causing an accidental miscarriage was also ten shekels. The Bible followed this tradition. Exodus 21: 22, probably first written down several hundred years after Hammurabi, also prescribes a fine, to be determined by judges, for an accidental miscarriage caused when men who are fighting bump into a pregnant woman and cause her to miscarry. Intentional abortion is not discussed by Ur Nammu, Hammurabi, or the Bible. To reinforce the point that the life of a fetus was not of the same worth as that of its mother, both Hammurabi and the Bible prescribe life for life, eye for eye, tooth for tooth…..when the mother is injured in the above altercation. (Exodus 21: 23-25)
The Orthodox Jewish view is that life begins at the first breath after birth, when the soul enters the body. This idea derives from Genesis 2:7, “Yahweh Elohim fashioned a human, dust from the ground, and blew into his nostrils the breath of life, and the human became a living being.” (translation from Commentary on the Torah by Richard Elliot Friedman) Several hundred years later the Pythagorean school of Greek philosophy taught that the soul entered the body at the moment of conception (although they had no idea when that was or exactly what happened at conception.) The Roman Catholic Church subsequently adopted this view. The Greek Stoics taught, as does the Bible, that the soul entered the body at the first breath. Hebrew, Greek, and Roman societies all equated the soul with breath. This ancient division of opinion about the soul entering the body is unsurprising since the mammalian egg was first identified by Karl Ernst von Baer (1792-1876) and sperm were first identified by Anton Leeuvenhoek (1632-1723.) This latter gentleman also invented the microscope, which was a necessary instrument to make both of these discoveries. Fertilization (conception) gained some concrete meaning only after these discoveries were made.
The Roman Catholic view of “ensoulation” and the value of fetal life has had a variable course. St. Augustine (354-430 AD) was somewhat vague about exactly when ensoulation occurred but generally opposed abortion. The Council of Byzantine (692 AD) and the Council of Worms (868 AD) ruled that killing any fetus is murder. Popes Innocent III and Gregory IX (12th and 13th centuries AD) ruled that killing a “formed” fetus is murder. A formed fetus occurs at about 45 days of gestation or about 6-7 weeks. The term “formed” means that the fetus is starting to have recognizable body parts. Pope Sixtus V (1588) next ruled that all abortion is murder. This was quickly overturned in 1590 by Gregory XIV, who ruled that killing a formed fetus is murder. This ruling stood until 1869 when Pius IX returned to ruling that all abortion is murder. This ruling became permanent when Vatican Council I in 1870 voted that the Pope was infallible when speaking ex Cathedra, or officially.
In American society today, religious viewpoints on when human life begins range from conception (when the sperm fertilizes the egg) to when the newborn takes its first breath, to the Reform Jewish concept that life begins when the child is accepted to medical school. (Conservative Judaism requires graduation from medical school.) Our modern understanding of fertilization, implantation, development, and delivery have all improved compared to human understanding thousands of years ago when our various (“western”) holy books were written. Do our ethical principles regarding conception and birth require similar updating?
Human life cannot be simply defined, although many try to do so. Let’s review the complexity.
At present, to begin a new human life, a sperm must fertilize an egg. The most common way to do this is through sexual intercourse. Fertilization may also be accomplished in vitro (IVF) by taking sperm from a man and an egg from a woman, and mixing them together in a Petri dish. This has been done successfully hundreds of thousands, if not millions of times. Resulting embryos may then be implanted in a woman’s uterus, not necessarily the egg donor’s, and brought to delivery. Did the soul enter the new embryo along with the sperm in the Petri dish? Just exactly what the soul is, or if it is completely imaginary, will not be further discussed.
There are millions of frozen embryos in the United States today that may never be implanted. These meet a religiously conservative definition of “life.” Do they have a “right to life,” a “right to be born?” In the near future new humans may also be cloned from older humans. Sperm and egg will be bypassed, so the soul, if there is a new one, would have to enter at the first breath after birth. Or, if not, when? Cloning has already been accomplished in several mammalian species. In humans the cloning technique is now basically an engineering problem. Ethical, moral, and legal considerations compound the technical problems. These complexities illustrate the difficulties generated by relying exclusively on ancient texts, or wise (but differing) rabbinical or Papal interpretation, to decide ethical principles or laws regarding the value of fetal life.
To return to sexual intercourse: this interaction may be enthusiastic, willing, accepting, reluctant, or forced and horrifying. All, in spite of what some politicians believe, can produce pregnancy. A child conceived under each of the above circumstances may be viewed quite differently by either or both parents. Some are wanted, loved and nurtured. Some are not. Some are despised because of the circumstances of their conception. Particularly in the case of rape, the pregnant woman may become mentally ill because of the fetus growing in her. Jewish law would permit abortion in such a case because the fetus would be considered a rodef, a “pursuer” threatening the life of the mother. (Tractate Sanhedrin, Babylonian Talmud) Pregnancies resulting from incest cause similar problems. As most people may not be aware, pregnancies from rape and incest are not rare.
Fertilization takes place in the fallopian tubes. Cell division begins as the fertilized egg moves down the fallopian tube to the uterus. There, implantation can take place in the endometrium, a placenta forms, and pregnancy tests for chorionic gonadotropin become positive. This is the medical definition of pregnancy. Rarely, implantation takes place in the fallopian tube. This is an obstetric emergency. The developing embryo will die because a normal placenta cannot develop. But the mother’s life is also threatened because of bleeding at the implantation site when the growing fetus ruptures the tube. Surgery is required to save her life. The embryo is doomed either way. The obstetrician is faced with the choice of saving the mother’s life or letting both the fetus and mother die.
A sizeable percentage of fertilized eggs never implant. Various contraceptive methods work, either by preventing ovulation, preventing implantation, or, in the case of condoms, preventing the sperm from entering the vagina. People with different religious views and variable levels of understanding object to some or all of these contraceptive methods. The Roman Catholic Church objects to all except the “rhythm method,” confining intercourse to times when the woman is supposedly not ovulating. Couples who practice only the rhythm method of birth control are called “parents.”
After implantation, the embryo begins developing and differentiating. Recognizable body parts such as limbs appear. During this time the fetus is totally dependent on the interaction of the mother’s endometrium and the fetal placenta for oxygen, nutrition, and the removal of metabolic wastes. Also, during this time of development, a number of fetal abnormalities and diseases that could cause lifelong suffering for the baby and parents may be diagnosed through amniocentesis. This procedure involves insertion of a needle through the mother’s abdomen into the amniotic sac of the developing fetus and aspirating fluid that contains fetal cells. These can then be analyzed for genetic defects. Newer techniques can detect fetal cells or DNA in the peripheral blood of the mother which may be examined for the same diseases diagnosed by the more risky amniocentesis.
Many diseases that plagued children and parents in the past can now be eliminated by abortion. Genetic counseling can inform the parents of the likelihood of a recurrence which may be preventable by IVF, embryo testing and selection, and implanting only disease-free embryos. Life threatening or life altering diseases such as Sickle Cell Anemia, Tay-Sachs, and Hemophilia can be eliminated from a family line in one generation. If one can do this and elects not to, how much of the future suffering in that particular family line is the fault of those who could have prevented it and elected not to? Is it the “will of God” that this preventable suffering go on and on?
Fetuses aborted during these developmental stages can provide tissues for medical research. This is routine at university medical centers throughout the United States and Europe. Researchers with programs approved by institutional research ethics committees allow departments of pathology to release tissues from aborted fetuses for medical research. Administrative fees are usually charged as they are when other organizations such as Planned Parenthood provide them. Abortions are never performed just to sell the fetal tissues to researchers, as has occasionally been charged by politicians, some of whom are trying to stop all fetal research. Advances made using fetal tissues in research include the development of vaccines for infectious diseases such as Polio, Rubella, and Shingles. These viruses grow particularly well in fetal, not adult tissues. Fetal stem cells are also much more versatile than adult stem cells and can be used to study the normal and diseased development of essentially all human organ systems.
At our current level of medical knowledge, the fetus develops to the point that it can survive outside the mother after about six months of gestation. This time period varies and will probably shorten as our medical sophistication improves. But, survival outside the mother does not mean independence. It means that some fetuses after six or more months of gestation have lungs that are mature enough to provide enough oxygen that the fetus does not require a placenta and endometrium. Such a six to seven month fetus is absolutely dependent on highly sophisticated, very expensive medical technology to survive and mature. Many don’t survive. Many who do have lifelong medical disorders that resulted from their prematurity.
Many fetuses are spontaneously lost along the way for a variety of reasons, largely developmental abnormalities or abnormal chromosome numbers. Many children are, however, still born with such preventable diseases. In normal circumstances, probably less than half of the fertilized eggs make it all the way from implantation through delivery. IVF and implantation of embryos have similar “failure” rates.
If a fetus is carried to term, about nine months, it is ready for normal delivery. With modern obstetric care, normal delivery is quite safe for the mother although early abortion is statistically safer. Humans have very large heads and the human female pelvis is barely able to accommodate such a large head in the birth canal. Caesarean section may be a lifesaving treatment in severe cases of cephalo-pelvic disproportion. Before the current era, lots of women died in childbirth from bleeding, or afterward, from infection. Modern medicine has improved, but not eliminated both of these risks.
After birth the child is still totally dependent on the parents (often mostly the mother) for everything: food, shelter, prevention (vaccination!) and treatment of infectious diseases, treatment of any congenital abnormalities, and so forth. It then enters a decades-long process of learning to walk, learning to talk, learning to read, learning to think, becoming physically (but not necessarily mentally) mature enough to reproduce, learning a trade, raising their own children, etc. Human life, from fertilization to death in old age, passes through many different stages. The beginning is promise and potential; actualization of hopes and dreams comes later and gradually, if at all. Personhood evolves.
So, human life in utero is not simple. Fertilized eggs, implanted embryos, developing fetuses, normal and diseased, are all separate stages of human life. There is a lot of loss along the way, even under normal circumstances. Pregnancy for a woman is also a highly variable experience. Some pregnancies result from love. The baby is wanted. Some are accidents, but the baby still loved or, at least, accepted. Some accidents (or rape) result in a pregnancy that is definitely not wanted. Some pregnancies make the mothers mentally as well as physically ill. Some threaten the lives of mothers, such as when the fetus causes toxemia of pregnancy, a potentially fatal complication for which the only definitive treatment to save the mother’s life is delivery or abortion if the fetus is too young to survive on its own.
An unwanted pregnancy and birth is very likely to result in a child whose life is a burden to the mother and unfair to the child. Shouldn’t a child be wanted, loved, and nurtured? The Earth has too many people right now for our environment to tolerate. Most infants do not have an opportunity to make the most of him/herself. For those of us who are privileged, the prevalence of misery among our fellow humans should be considered shameful. Of the Earth’s over 7.5 billion people, only about 1 billion have a lifestyle similar to the American middle class. The bottom billion lead short lives plagued by disease, war and starvation. They don’t know how to practice contraception or are not allowed to, and have too many children that they can’t feed or provide with clothing, shelter, education, and health care.
Abortion, both here and abroad, is one way to assure that most children who are born will be wanted, will be disease free, and can be given a good chance to make the most of themselves. And, the best way to make abortion rare is to make the whole variety of effective contraceptive methods available to all women worldwide. Two to four thousand years ago, when some of our early thoughts about the worth of a fetus were first written down, our ancestors could do little to regulate our reproductive process and assure that all children born were wanted and could be adequately nurtured. Now we can do both. What new ethical obligations do these new capabilities give us? And why would a state legislature forbid all abortions after six weeks of gestation? Why should one theistic, historically disputed, religious viewpoint become the law of a land with a Constitution established by “We, the people…..”?
Now a draft opinion that would overturn Roe v Wade has been leaked from the Supreme Court. This is unprecedented. The genuineness of the opinion has been confirmed by the Chief Justice, who has instituted an investigation to uncover the “leaker”. “Pro-life” and “pro-choice” activists are mobilizing. Polls show that a majority of the American public favors legal abortion (with varying restrictions as to timing, rape, incest, etc.) The draft opinion, written by Associate Justice Samuel Alito, a George W. Bush appointee, is dismissive of the value of public opinion, concentrating on his understanding of what the Founding Fathers intended. All three justices appointed by Donald Trump voted in the majority, as they were nominated to do. The Founding Fathers were all white men, land owners, a sizeable fraction slave owners, and originally gave the vote only to white men, not Negroes, Indians, or women. These three were second class citizens.
The Constitution, like the Bible, says nothing specific about abortion. More liberal justices in the past have interpreted the 4th and 14th amendments to contain a “right to privacy.” This “right” was central to the reasoning in Roe v Wade, which was decided in 1973 and confirmed in Planned Parenthood v Casey in 1992. Political Conservatives, Roman Catholics, and Fundamentalist Protestants have consistently opposed these rulings. About half the states have “trigger” laws on the books that will outlaw abortion as soon as the Supreme Court’s opinion is published. Many of these trigger laws have no exception for rape or incest.
So, the gauntlet is flung, the Rubicon is crossed; what should the United States of America do? Alito’s opinion says that decisions about the legality of abortion should be left to the representatives of the people, a “states’ rights” argument. This same argument kept slavery legal until the Civil War. “States’ Rights sentiments were also behind Jim Crow laws and still motivate the “Red State” legislatures today who are passing “trigger laws.” Congress could codify Roe v Wade but it won’t. The bill, already passed by the House, will remain stalled in the Senate by the filibuster.
What shall we do? “The fault, dear Brutus, is not in our stars/but in ourselves….” (1). You know who agrees with you. An election is coming up this November. Vote.
- William Shakespeare, Julius Caesar, Act I, scene 3.