Abortion and Infanticide: A Moral Perspective

This assignment discusses the morality of abortion and infanticide, exploring the rights and wrongs of killing a fetus. It examines the characteristics and properties needed to be considered a living body and the moral conditions surrounding abortion and infanticide. The essay also references the current laws on abortion in England and Wales.

Running head: MEDICAL LAW
MEDICAL LAW
Name of the Student:
Name of the University:
Author Note:

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Introduction:
Abortion is the process of ending a pregnancy by removing or expelling an embryo
before it survives out of the uterus1. It is the termination of pregnancy, often done within first 28
weeks of the pregnancy. When occurs without human intervention, it is known as a spontaneous
abortion or miscarriage2. In this write up, deliberate ending of the pregnancy is discussed. It is a
very controversial and debatable topic as it deals with the rights and wrongs of abortion by
killing of the fetus. This assignment discusses about the morality of abortion and infanticide. The
most fundamental objection that arises against the process of abortion states that human fetuses
and infants have a right to live3. This essay is concerned with this claim only. The main matter
discussed here is that what are the characteristics and properties that are needed to be present to
be considered as a living body. Here the moral principle will be stated and defended specifying a
criterion which is to be satisfied in order to be considered to have a right to life. It would be seen
in the following part that human fetuses and infants do not satisfy this condition and thus they do
not have a right to live. But this is again can be set aside by other theories. When there are no
objections to abortion and infanticide, it is morally acceptable4. These moral conditions can vary
with time and situation. These have been elaborated in the light of the theories propounded by
Judith Jarvis Thomson, Michael Tooley and others. In this regard, the present laws on abortion in
England and Wales is referred too.
1 ESHRE Capri Workshop Group. "Induced abortion." Human reproduction (Oxford, England) 32.6 (2017): 1160.
2 Duffy, Deirdre, et al. "Abortion, emotions, and health provision: Explaining health care professionals' willingness
to provide abortion care using affect theory." Women's Studies International Forum. Vol. 71. Elsevier, 2018.
3 McCurdy, Stephen A. "Abortion and public health: Time for another look." The Linacre Quarterly 83.1 (2016): 20-
25.
4 Marquis, Don. "Why Abortion is Immoral." Applied Ethics: A Multicultural Approach (2017): 367.

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Discussion:
Induced or deliberate abortion is a crime in UK. It raises some problems for private
conscience, constitutional law and public policy. Majority of these problems are mostly
philosophical. Since abortion is considered to be a public agenda, changes in the government
policy and public opinion on abortion made the philosophers to divert their attention to this issue
in order to solve it. Public issues became the matters of philosophical concern. Philosophy found
to be perfect in resolving matters of public controversy and debate5. Philosophy could deal with
any matter in a highly rational way. These philosophers started to take deep interest in the matter
of abortion since 1960. Joel Feinberg emphasizes the questions regarding abortion morality can
be categorized into two parts; the first group or part is concerned with problems relating to moral
status of unborn and the other with resolving the claims of conflict, particularly the claims of the
fetus together with the mother. When the moral status of the unborn fetus is considered, it is seen
that some of the philosophers give them no moral status. On the other hand, some of them grant
full moral status to them. When the philosophers refer the abortion problem as a problem related
to conflicting claims, then either they contend that the mother’s claim overrides the fetus’s claim
or vice versa. All these were elaborated in the following part of the write up. In this regard two
important terms, ‘human fetus’ and ‘moral status’ are discussed.
A human fetus is an unborn human being from the third month end till birth. Embryo and
zygote succeed it. However, in general, the term fetus is used to indicate unborn human offspring
at any stage during its development before birth. On the other hand, the term ‘moral status’
means an object of moral concern or in other words, it is a type of object whose treatment has
some sort of moral result. Sometimes, it is confusing that whether fetus is a person or not.
5 Barney, Angela. "Finding Common Ground Within the Abortion Debate." (2016): 64-66.

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Similarly, the question regarding moral status as a question whether a fetus is a human being or
human is also confusing. It will be necessary to clear questions, if any about the humanity of
fetus.
It is however important to note that the idea of abortion does not exist in the moral
vacuum. The arguments essentially consist of the claim that the absence of respect to any type of
human life will cause gradual decrease of respect to any forms of human life. The arguments that
those who support limited scope of abortion will assist in other moral issues like euthanasia,
eugenics and infanticide, such arguments are called ‘slippery slope arguments’6. These
arguments are however not argued by these philosophers who always limit themselves to the
ambit of abortion. On the contrary, few philosophers have no problem with the results of
abortion referred by ‘slippery slope argument’. It will be seen Michael Tooley made arguments
supporting infanticide and abortion.
However, it can be seen that the ‘slippery slope arguments’ are quite popular among the
philosophers who do not support abortion. The common facts found in the arguments made by
those who supported slippery slope argument are that the most vulnerable members in any
society must be protected. Else, the result will be eugenics or survival of the genetically fittest.
Opinions are found to be divided in the advantages and disadvantages of the concept of
eugenics7. But the question lies here is whether there lies any right which says that a genetically
perfect society can be created. If the answer to this is yes, then abortion can be held to be
permissible8. Critics will however contend that the quality of the human culture lies in its
6 Clifford, John M. "Where is the argument for the conceptual slippery slope?." The British Journal of
Psychiatry 211.6 (2017): 397-397.
7 Gyngell, Christopher, and Thomas Douglas. "Selecting against disability: the liberal eugenic challenge and the
argument from cognitive diversity." Journal of Applied Philosophy 35.2 (2018): 319-340.
8 Marquis, Don. "Why Abortion is Immoral." Applied Ethics: A Multicultural Approach (2017): 367.

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diversity of genetic imperfection together with genetic perfection. The formation of a genetically
perfect society does not form the actual aim of the human beings.
The following part consist of mainly five parts, first one deals with the points put
forwarded by Judith Jarvis Thomson will be discussed9. The basis of the argument made by
Judith is the assumption that fetuses are persons having life since they are conceived10. In spite of
this, Judith asserts that it does not mean that the fetuses have the right of living. She, however,
does not favor infanticide. She does not even favor abortion on demand but contends that if there
is life risk of mother, then abortion can favored. In the second part, the points raised by Michael
Tooley in his article in addition to throwing light on the book written by Tooley where he
emphasizes that fetuses and some infants do not have moral status. The third part will
concentrate on criticism of Judith’s article. These types of criticisms are commonly associated
with any philosophical ideology. The fourth part will focus on the approach made by Tooley to
analyze the issues of infanticide and abortion. Part five will explore more realistic alternative
approach to deal with abortion plus infanticide. This part will discuss new ways where
personhood can be elaborated in relation of these matters.
Thomson in her article considered fetus to be a human being or a person from the time it
is conceived in the uterus11. She emphasizes that she does not believe that a person or human
being exist at the time of conception. However, she defends the claim that many abortions are
permissible morally even though the fetus is assumed to have moral standing. She contends that
although it is assumed for the reason of argument that presumptions move usually to conclude
9 Block, Walter E., Harold E. Wirth, and Joseph A. Butt. "Judith Jarvis Thomson on abortion; a libertarian
perspective." DePaul Journal of Health Care Law 19.1 (2018): 3.
10 Block, Walter E. "Judith Jarvis Thomson on Abortion: A Libertarian Perspective." DePaul J. Health Care L. 19
(2017): 1.
11 Kershnar, Stephen. "Fetuses are like rapists: a Judith-Jarvis-Thomson-inspired argument on abortion." Reason
Papers37.1 (2015): 88-109.

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that a fetus may never be destroyed12. However, most often, her claim is considered on contrary
by authors who think that once it can be shown that fetuses have a right to live, everything can be
conquered. These authors conclude that when a fetus is assumed to have a right to live,
everything must be done to support and preserve its life. Thomson expresses a class of situations
where the right to life of the fetus does not impose a corresponding responsibility in justice
anyone to conserve its life13.
Thomson usually takes into account several factors that may weigh a decision about the
morality of fetus. She holds the notion that a positive right indicates that the bearer must be given
with what he requires for sustaining his life. However, one thing he must not order to use the
body of another person. In the eyes of law, no one has the right against anyone that they must
give their body or parts of body even when they are needed for life. To support her reasoning,
one can give the example of widely prevalent principle that no person has the right to seize
organs, bone marrow or even blood even for using it for his own life. Thus, that a fetus has a
right to live does not necessarily mean that a woman has a responsibility to allow her body to its
own life support.
Thomson supports that when a woman deliberately involves into an unprotected
intercourse, it can be assumed that she had given a fetus the right to us her body and thus she has
a responsibility to continue the pregnancy14. However, this will not include pregnancies that are
caused due to rape or contraceptive non success. She does not consider the situation that resulted
12 Dworkin, Ronald, et al. "Assisted Suicide: The Philosophers' Brief." The New York Review of Books (2017).
13 Kershnar, Stephen. Does the Pro-life Worldview Make Sense?: Abortion, Hell, and Violence Against Abortion
Doctors. Routledge, 2017.
14 Kendall, Paige D., and Melissa J. Chen. "Case report of induced medical abortion following depot administration
of medroxyprogesterone acetate." International Journal of Gynecology & Obstetrics 139.3 (2017): 371-372.

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out of an involvement in sex that causes pregnancy, in spite of taking proper protection and she
holds it as an invitation to a fetus by the woman to use her body as a life support.
On face of it, the point appears to have some merit. If anyone can understand the
consequences that may result from an act and then consents to it freely, it can be said that one
will be able to accept the responsibility for the consequences that originates from such act. The
issue of ignorance is however not a small cause in many teen aged pregnancies. It is doubtful
whether many grievous pregnancies were given free consent. In case of any immaturity or when
the need of human emotions and physical needs are strong, it is difficult to say that involving
into such sexual activity is done freely15. In majority of the cases, it will not be a sufficiently free
act to comprise of the invitation to the fetus that allows it to use the body of the woman.
But, where the results of involving into any sexual act is totally appreciated and the
contraceptive limitations are known and there lies no resistance on her ability to act freely, then
the act of the women could be regarded as a consent to allow the fetus right against her to use her
body. Probably, the case of Thomson is found to be weaker than her supposition. It will not be
that a fetus’ right to live does not need a woman to allow it to use her body. Hence, most of the
abortions could not be regarded as immoral only due to the facts that violate the right to life of
the fetus. However, when a fetus has moral standing, the behavior to it will b controlled by moral
rules instead of rights and justice and in this regard, it can be said that abortions are wrong
except for unjust acts. Thomson takes into consideration two other sources from where one can
derive the wrongfulness of abortion.
15 Mahon, James Edwin. "Abortion and the Right to not be Pregnant." Philosophy and Political Engagement.
Palgrave Macmillan, London, 2016. 57-77.

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The first one is from the moral duty to be decent to one another where one should help
another in need. However, there lies a boundary between the indecent refusals and the acceptable
refusals. She draws the distinction as the gap between a Good Samaritan and a minimally decent
Samaritan16. She argues that everyone has the duty to be at least a Decent Samaritan but none can
be forced to be heroic or a Good Samaritan. Therefore, if the behavior in respect of the fetuses is
governed by the principles of compassion and decency, it will be indecent to end the pregnancies
that can be continued with very little discomfort to the woman. She is supposed to be minimally
Decent Samaritan17. It is observed that some of the pregnancies are ended for silly reasons and
these types of abortions are obviously wrong. However, it is very difficult to fix the standards of
such silliness or frivolity. However, theoretically, when the fetus has a moral standing, it will be
indecent not to help it when the cost is not much.
On the other hand, the second one is that it will be wrong to destroy the fetus as it has a
close bond and relation with the pregnant lady. In this regard, Thomson refers to the fiduciary
duty of the mother and father to their children. Probably, the applicability of the moral rules
about the parents’ duty towards their offspring indicates that it will be wrong for the woman to
deny supporting her fetus by letting it use her body. It appears that when the fetuses have moral
standing, they are morally equal to offspring of the person. Moreover, when the fiduciary duties
need the parents to care for their offspring, it results that they have the responsibility to take due
care of their unborn baby too.
If the right of child against its parents is a natural right, it will indicate that pregnant
woman has the right to end the pregnancy only for any life threatening or exceedingly serious
16 Horn, Trent. "Abortion and Good Samaritan Arguments." The National Catholic Bioethics Quarterly 18.3 (2018):
435-442.
17 Horn, Trent. "Abortion and Good Samaritan Arguments." The National Catholic Bioethics Quarterly 18.3 (2018):
435-442.

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causes as to do so would result the death of her unborn baby18. How one will decide the question
will be dependent on the view of that individual whether the rights of the child against its parents
are natural. However, even if the fetus has a right to be supported by its parents, it is not so
extensive to include everything without which the parents could not live or goods that are
important to life. In order to conclude the view of Thomson, it can be said that when fetuses have
moral standing, they would be considered as the offspring of the woman. They will be having the
right to life and will be treated as per ordinary conditions of decency. The frequency of justified
abortions was limited by the decency considerations19. The abortions for baseless, silly reasons
are totally wrong. By giving the benefit of doubt to women, it will be fair to say that abortions
cannot be allowed for frivolous grounds20. Hence, Thomson has held that the abortions are in
general morally permissible.
It is true that the fiduciary duties of the parents to their offspring are corresponding to a
natural right to parental support. Every fetus has a claim that his mother must take its care unless
the situation is life threatening or risky to mother’s life. Thus the conclusion that can be drawn
from the paper of Thomson is found to be similar to that arising from Jain English21. To conclude
whether a fetus has the same footing as any other offspring is a way to ask whether it has got
moral standing or not. Both Thomson and English showed that it is extremely unjustifiable to
consider each and every abortion as immoral or untenable22. When fetuses have the moral
standing, it can be said that this is true.
18 Mahon, James Edwin. "Abortion and the Right to not be Pregnant." Philosophy and Political Engagement.
Palgrave Macmillan, London, 2016. 57-77.
19 Marquis, Don. "Why Abortion is Immoral." Applied Ethics: A Multicultural Approach (2017): 367.
20 Cohen, I. Glenn. "Artificial Wombs and Abortion Rights." Hastings Center Report 47.4 (2017): inside-back.
21 Coleman, Stephen. The ethics of artificial uteruses: Implications for reproduction and abortion. Routledge, 2017.
22 Friberg-Fernros, Henrik. "The Moral Risk of Abortion." Making a Case for Stricter Abortion Laws. Palgrave
Macmillan, Cham, 2017. 21-54.

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On the contrary of Thomson’s view lies the liberal view of Michael Tooley. His work can
be regarded as the most reliable and comprehensive defence of the liberal position on the
morality of the abortion23. His claim is that as no fetus has the inherent right to life, abortion is
possible at any time of pregnancy and for any reason. The basis of his claim is that fetus has no
moral standing. His defence for this is highly negative. He stressed on three arguments to support
his view. First one is on the right to life of the fetus, second on its status as an innocent member
of human beings and thirdly, on the importance of its potentiality to grow into an adult. In the
following part, each of these points referred above are discussed elaborately24.
Probably the most cited example to show that the fetus has moral standing is that it has a
right to life. When it is said that an entity has a right to life, it can be efficiently claimed that it
has moral standing. Tooley contends against the view from principles about the nature of rights.
He has elaborated a theory of rights that can be treated as the subjects of rights. The theory that
Tooley relies upon is the theory of rights propounded by Joel Feinberg. As per Feinberg, one of
the criteria needed for an entity to have some sort of right is that it has interests. Tooley used this
view of Joel as the foundation of his principles of rights and interests.
His first step was to particularize the principle given by Joel. Tooley argues that if the
justification given by Joel is sound, it can be used to link rights with particular type of interest. In
this context, Tooley determined that a fetus would not have a right to life unless it had the
interest of continuing its life. First he tried to interpret the passages from the writings of Benn
and Peters holding that the duties which are correlated to rights depend on right chosen by the
person. His formulation of the principle of rights is having two conditions.
23 Marquis, Don. "Why Abortion is Immoral." Applied Ethics: A Multicultural Approach (2017): 367.
24 Jones, Aled. "Abortion Rights: For and Against." (2018): 270-272.

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Nevertheless, Tooley formulates his inquiry into the analysis of the amended particular-
interest principle in which he tries to determine the required criteria to have the capacity of
desire. He points out two types of features which have relevancy to the question of whether any
entity has the scope to desire or not. The first being that the desires can be linked to creatures
which are conscious and have experiences25. He tries to omit the possibility that the entity whose
acts and performances can be regarded as desires would be assumed to have desires that are true
and genuine. The second feature of desire which Tooley brings into attention is to that desires
incorporate many things that are referred to as propositional attitudes referred by the
philosophers. He supposes that a desire when properly construed has an object that certain
proposition is true. The fact of being capable to have desires turns to implicate that an individual
to have any capacity must have some experiences. The individual has to be conscious and have
the ability to understand the concepts related to these propositions.
It is easy to foresee the result that can be concluded in relation to the fetus and its right to
life. The fetus does not have the capability to know the propositions regarding its continued
existence. Thus there lies no question on Tooley’s thoughts on rights that the fetus does have the
right to life. However, this is not the final version of the theory of rights of Tooley. He spends
some more time to react to the two objections in respect of it and tries to make modifications to
them accordingly. The objections are discussed below in a precise manner.
The first objection is that the theory of rights that gives responsibilities on the interest of
the bearer is being preferred to one that gives them on the desire as it can control the
counterexamples as per the following. If the said rights depend on the desires only, sleeping, then
the person in the state of coma would not have any rights but when such rights depend on
25 Hershenov, David B., and Rose J. Hershenov. "If abortion, then infanticide." Theoretical medicine and
bioethics 38.5 (2017): 387-409.

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interest; such comatose person will also have rights. Again, when the rights are dependent on
desires only, then the rights of the infant section will not be infringed if any surgeries were done
on them. However, if the rights are conditional only upon the interest of the infants, the surgical
process will be will be definitely the infringement of their rights. Hence, it appears that the rights
conditional on the interest of the bearer is more perfect than the Tooley’s version where rights
are conditional on desires26.
However, Tooley finds that any animals other than humans will be incapable to have
rights like fully conscious and diligent human beings who can not convey their feelings or
thoughts to other. In addition to this, the duties for a minor do not cease only due to the fact that
the minor has permitted someone to deprive him from his right.
In the light of all these, Tooley tries to make a formula consisting of a set of principles of
rights which will have all the three factor; such that the duties created by rights will be
conditional on interests, desires and the decision to relinquish the obligation or not.
The last objection that has to be removed depends on the rights of the entities who do not
have relevant desires at certain time or for whom the rights’ object is not at the time of their
interest. In this regard, the plight of the persons in coma or diseases can be referred. In all such
situations, the people had the duty to control from treating them in the ways as at some time they
may wish to restrain or see it as their best interests.
While evaluating, dissatisfaction is found regarding the integration of Tooley of his
capacity of desire into the discussion of its rights. There lies weakness in the argument of
depending on the propositional point of desire. It is obvious there are more to be discussed about
26 Hershenov, David B., and Rose J. Hershenov. "If abortion, then infanticide." Theoretical medicine and
bioethics 38.5 (2017): 387-409.

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the desires than that their objects are the true valuation of the propositions. An alternative view
cannot be defended here. The most important and significant matter of concern is the
introduction of the time factor by Tooley such that an individual person at least at one point of
time must possess the concept to continue oneself. No doubt is there that he requires
accommodating himself in the counterexamples listed above. However, in actual, the time factor
found to cause inconsistency in the overall view made by Tooley. The momentum of his entire
proposal does not allow the fetuses to have the right to life mainly on the basis of the fact that
they do not have the capacity to wish for their continuous existence. The main crucial question
for Tooley is whether the fetuses have the same entities as the humans who usually desire to
continue their existence. The reply made by Tooley is remarkable in this regard. He takes the
contention seriously that it must be in the interest of the baby that it should not be destroyed. But
he does not say anything about the importance of the physical continuity that lies in between the
embryos and the adults. The result of all this for the argument of Tooley is that it does not
overlook the possibilities that some of the fetuses have a right to life. That is, those who develop
into later human beings have a right to life27.
Still it will be fair to say that Tooley has not shown that the fetuses can not be subjected
to rights.
Among the other prevalent arguments made by the oppositions, one of the most familiar
is based on the fact that the status of the fetus is as innocent human being. Tooley considers this
argument in the following manner that an embryo or fetus growing inside a mother is an innocent
human being itself from the time of it conception, that it will extremely wrong to cause the
27Hershenov, David B., and Rose J. Hershenov. "If abortion, then infanticide." Theoretical medicine and
bioethics 38.5 (2017): 387-409.

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killing of an innocent human being, that an abortion involves causing death of an embryo or
fetus growing inside the human mother and hence, abortion is absolutely a wrong28.
Tooley presumes that from the above points, the first, third and fourth are uncontroversial
and without any ambiguity. However, he will contend against the second factor which claims
that it is seriously wrong to kill an innocent human29. To understand the reasoning made by
Tooley, it is absolutely required to realize the difference between basic and derived moral rights
and principles. Some of the principles that he has taken into consideration are true as they
implied by more generalized principles and other empirical claims. The second point can be
either a basic or a derived moral principle. When it is basic principle of morality, Tooley holds
that the way to show counter examples is not right. But if it is a derived principle of morality, the
manner to disprove it is either by providing counter examples from where it has been derived30.
Tooley applies both the strategies and conclude that point two is neither good basic moral
principle nor a derived one from where wrongness of the abortion can be concluded. There lies a
good reason to conclude that the forceful and perceptive line of argumentation of Tooley does
not become as successful as it is expected. He failed to show that why the claim of the
conservatives that all fetuses have moral standing cannot be justified. But he made arguments
against the right premises or points.
As far as infanticide is concerned, Tooley makes clear that some philosophers make their
moral objections to infanticide on the basis of moral intuitions as it considers infanticide as
wrong. He himself contends that when one grants for the reason of argument at least that moral
28 Hendricks, Perry. "Even if the fetus is not a person, abortion is immoral: The impairment
argument." Bioethics 33.2 (2019): 245-253.
29 Hershenov, David B., and Rose J. Hershenov. "If abortion, then infanticide." Theoretical medicine and
bioethics 38.5 (2017): 387-409.
30 Hendricks, Perry. "Even if the fetus is not a person, abortion is immoral: The impairment
argument." Bioethics 33.2 (2019): 245-253.

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intuitions are the final court of appeal in relation to the acceptance of the moral principles, the
question of morality of infanticide is not the one that can be decided by making an appeal to the
institutions for it. Any rejection of infanticide must be made on the basis of non vulnerable
argument. He boldly rejects the possibility of such argument.
There are several other philosophers and jurists who also propounded their respective
theories in relation to the abortion. Some of the views and principles put forwarded but such
persons are discussed below in a precise manner.
Francis Beckwith finds four major ethical problems with Thomson’s view. Firstly, he
holds that using a violinist as an example of all sorts of relationships that indicates that moral
duties have to be accepted voluntarily to have moral force; Thomson by mistake concludes that
all moral responsibilities to one’s offspring in true sense are voluntary31. Secondly, Beckwith
finds that volunteerism concept of Thomson also offers opposition to family morality. Thirdly,
he contends that one can prove that the fetus has a right to the body of his mother on the ground
that fetus is actually growing in support of his mother. Finally, he held that abortion is actually
the killing the unborn human being. In addition to all these, Beckwith directly opposes the use of
the violinist analogy by Thomson as he tells that such illustration made by Thomson ruins the
deep inalienable bond of love between the mother and her child by making it look no different
than two strangers who are linked up so as to steal the service of the kidney of the other32.
In the same way, Kenneth R Pahel in his article argued that as far the right to life or the
right to existence is concerned, fetuses and new born babies are human beings that will definitely
31 Beckwith, Francis J. "Pro-Life Activists Can and Should Use Civil Disobedience Against Abortion." Civil
Disobedience(2017): 75.
32 Kershnar, Stephen. Does the Pro-life Worldview Make Sense?: Abortion, Hell, and Violence Against Abortion
Doctors. Routledge, 2017.

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grow with particular interests, desires and thoughts unless they are prevented into a normal
healthy way of maturation.
Similarly, Shannon M. Jordan in his article named “The Moral Community and Persons”
depicts that instead of trying to define and elaborate what a person is and then proving which
human beings form the moral communities’ members, one must turn the process of reasoning to
interpret the meaning the moral community first, then one will automatically understand who is a
human being and who is not.
Another definition and illustration of personhood is given by Marjorie Reiley Maguire
who suggests that the point at which personhood starts also marks the start of pregnancy of the
mother and also marks the acceptance of such pregnancy by the mother33. She highlights that
when a pregnancy is accepted by a mother, the potentiality of the fetus for rationality and
sociality is activated. She holds similar thoughts as of Shannon as he put forward the concept
that the fetus cannot become related to the human social community except through the
mediation of mother.
On the other hand, Paul Gomberg visualizes woman as human being biologically more
perfect to be mothers and child bearers instead of being members of world of recognized
employment34. According to him, abortion can be regarded as the failure to nurture the offspring
by the adult and not as an act of murder. The reason behind it is that he believes that issue of
abortion deals with duties to the off springs and not to the adults. He echoes the remarks made by
33 Kamitsuka, Margaret D. "Unwanted Pregnancy, Abortion, and Maternal Authority: A Prochoice Theological
Argument." Journal of Feminist Studies in Religion 34.2 (2018): 41-57.
34 Rhodes, Rosamond. "Constructing the Abortion Argument." The Oxford Handbook of Reproductive Ethics (2016):
78.

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Maguire when he points that morality of nurturance takes over when pregnancy is accepted by a
woman35.
Jordan, Gomberg and Reiley Maguire discuss the abortion issues and infanticide as they
are felt and experienced by any mothers. They do not emphasize detailed hypothetical examples
in front of our eyes to strengthen their arguments as they do not require doing so. They used a
pragmatic approach to question of the personhood that allows varying the terms of defining the
term ‘person`.
In contrast to the conservative and the liberal views, lies the L.W. Sumner’s “differential
view” that indicates a moderate opinion on the fetal status36. His claim is that fetuses need moral
standing slowly during the gestation period.
While abortion is now regarded as a regular incident of the modern NHS funded
reproductive healthcare, the legal framework controlling it has its root in the conservative,
punitive values of the mid- Victorian era. The following art will focuses on the need of reform of
the laws of abortion in order to channelize it in the line of clinical science, technology and
morals of the 21st century. It highlights the present statutory chassis that controls the abortion
against the reasons that are assumed to motivate it; to protect the women’s life and to condemn
and prevent the destruction of fetus deliberately. It is argued that it fails to achieve either of the
aims and thus the criminal penalties that are inflicted in case of abortion. To discuss the reforms
needed in case of the existing laws, firstly the current laws are discussed, and then what reforms
are needed will be elaborated.
35 Bisong, Peter B., Joseph N. Ogar, and Asira E. Asira. "The abortion debate: a contribution from Ibuanyidanda
perspective." Online Journal of Health Ethics 12.2 (2016): 6.
36 Sinha, Sarthak. "Drawing a line on the moral and legal permissibility of abortion." (2015).

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Firstly, as said above the laws are discussed. The Offences against the Person Act 1861 is
referred which deals with three offences in relation to the prosecution of abortion37. Sections 58,
59 and 60 deal with the offences related to abortions.
As per section 58, every woman being with a child, with an intention to cause her own
miscarriage, if unlawfully administer to her any poison or noxious thing or use any instrument to
cause miscarriage of any woman shall be guilty of an offence and shall be convicted and liable to
be kept in penal servitude for life. According to section 59, whoever, unlawfully supply poison
or other noxious thing, or instrument, knowing that it is intended to be used unlawfully to cause
miscarriage, shall be held to be guilty of an offence and being convicted for imprisonment for
term not more than 5 years. Section 60, on the other hand, provides that if any woman has
delivered a child, every person who cause a secret disposition of the dead body of such child
whether such child died before, at or after its birth, to hide the birth, shall be held guilty of
misdemeanor, and can be convicted with imprisonment for a term not exceeding two years. The
provisions of OAPA had mainly carried forward those of an older statute and thus had many
drawbacks. They make no exception for therapeutic abortion, makes no difference of sentences
between a woman who causes her miscarriage and a third party abortionist. It makes no
distinction between abortions at earlier and later stages of pregnancy. Thus, these matters have to
be dealt with while reforming the laws.
While OAPA makes no difference between early and late in pregnancy, statute called the
Infant Life Preservation Act 1929 prohibits the destruction of any fetus deliberately unless it is
37 Morgan, James. "Offences against the Person and Sexually Transmitted Diseases: Aubrey v the Queen (2017) 260
CLR 305." Adel. L. Rev. 39 (2018): 207.

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done in good faith38. The act contains a rebuttable assumption that the capacity of life is acquired
at 28 weeks of gestation. This act also requires some reforms to cope it up with the present age.
Abortion in England, Scotland and Wales is controlled by the Abortion Act 1967. It was
amended by the Human Fertilization and Embryology Act of 199039. It provides the conditions,
nature and criteria when abortion is legal. Under the provisions of the Abortion Act, a pregnancy
can be terminated or abortion can be done manually by a registered medical practitioner in any
NHS hospital or places approved for this40. However for this, two practitioners must be of the
same opinion in good faith; that the pregnancy must not exceed twenty four weeks and that the
continuation of such pregnancy would result into high risks of injury to the physical or mental
more than if the pregnancy was not terminated, or that the pregnancy if continued would result
into great permanent loss or injury to the pregnant lady’s physical or mental health or that there
is a substantial risk that if the child was born it would suffer from physical or mental
abnormalities that may result into seriously handicapped baby.
To establish that the opinion is based on good faith, it is not required that the abortion’s
authorization is in the right course of action, but simple that the medical practitioners are not
negligent or dishonest while making the opinion. Courts usually assume that the doctors have
acted in good faith when they followed the medical practice41. The provisions of this act are in
need of reforms to settle with the present day scenario of the country42.
38 Cao, Kevin X., et al. "The legal frameworks that govern fetal surgery in the United Kingdom, European Union,
and the United States." Prenatal diagnosis 38.7 (2018): 475-481.
39 Sheldon, Sally, et al. "The Abortion Act (1967): a biography." Legal Studies 39.1 (2019): 18-35.
40 Jones, Natalie Linda. "Hanging On: Reflections on visual reproduction and the UK Abortion Act 1967." Feminist
Legal Studies 25.3 (2017): 359-364.
41 Lee, Ellie, Sally Sheldon, and Jan Macvarish. "The 1967 Abortion Act fifty years on: Abortion, medical authority
and the law revisited." Social Science & Medicine 212 (2018): 26-32.
42 Paintin, David. "The 50th Anniversary of the Abortion Act." BJOG: An International Journal of Obstetrics &
Gynaecology124.13 (2017): 1947-1947.

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Firstly, the act needs two doctors to certify the need of an abortion as they are best placed
to decide whether an abortion is justified or not. But in today’s world, the notion that ‘doctors
know the best’ is outdated as now the patients are more trusted and expected to take medical
decisions themselves43. The need for two signatures just becomes a total bureaucratic one
providing no broader purpose. Moreover, it is seen that this need may result into breach of
European Convention on Human Rights44. Secondly, the legal need that abortions to be
performed by doctors only and on approved premises are currently cannot be supported. Hence
these provisions need amendments. The fact that legislation is old and archaic is not a problem
unless it does not contradict with present day practices and culture, it cannot fossilizes the value
and assumptions of the era in which it was brought into effect. When the Abortion Act was
introduced, it gave the abortion decision to the doctor, then to the woman herself. It has been
discussed above, the reforms that are to be considered by the Parliament to modify the age old
position of the abortion laws in the country45.
Conclusion:
Thus from the discussions made above, it can be concluded that the philosophers have
contributed a lot to pave the path of the existing laws on abortion in the country. On the basis of
their theories and principles, the foundation of the abortion laws of the country was based. The
law makers took the first brick of the foundation of the acts and legislations based on the theories
propounded by the philosophers. In order to resolve the present issues related to abortion, the
philosophers must not follow the traditional approaches made by Thomson, Tooley and others
43 Regan, Lesley, and Anna Glasier. "The British 1967 Abortion Act—still fit for purpose?." The Lancet 390.10106
(2017): 1936-1937.
44 Wildish, Ian, et al. "Is the 24 week limit imposed by the Abortion Act 1967 fit for purpose?." The Student Journal
of Professional Practice and Academic Research 1.1 (2019): 121.
45 Paintin, David. "The 50th Anniversary of the Abortion Act." BJOG: An International Journal of Obstetrics &
Gynaecology124.13 (2017): 1947-1947.

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but they must look independently at the perspectives of the beings involved, that is, the mother
and the fetus. When it is done in this manner, it can be seen that the abortion issue is not about
the issue of rights but of the duties actually that an adult has toward its off springs.

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