‘DO NO HARM’ and ‘assume the best of each other’ are common phrases that capture some of our deepest ethical commitments. People are upset and angry right now because Irish society has not only failed to prevent harm to Ms Y, but we’ve actually increased her suffering. Forcibly hydrating, and essentially refusing an abortion to this vulnerable, suicidal rape victim, has not assumed the best of her. What’s worse is that we don’t seem to have learned from previous experiences.
Our emotional reactions to this recent case tell us something important; that even if we disagree about abortion, reducing harm to sentient beings ought to be the starting point for our law and policy. The failure to perform an abortion was wrong because it produced more harm than good. More generally, we know that restricting access to abortion does not stop abortion; it just makes the experience more harmful. If Irish society is serious about reducing harm to pregnant women, including the harms of disrespecting their autonomy and bodily integrity, the state needs to change how it thinks about pregnancy and abortion. The recognition of woman and foetus as legal equals has been harmful, and needs to change.
Reasonable people disagree on the intrinsic value of embryonic life
It’s true that some forms of ethical thinking hold that even if a law has the effect of reducing harm overall, it should not allow actions that are intrinsically wrong. But why would abortion be intrinsically wrong? Intentionally ending embryonic or foetal life after conception may be wrong in itself, if you take the view that it goes against god, or that ‘genetically individuated life forms’ deserve moral status. Individuals are entitled to take that moral view. They certainly shouldn’t be compelled to act against that view by being made to have an abortion. But they should not be entitled to deny abortion to others, because the independent moral value of embryonic and foetal life is something over which reasonable people disagree.
There is another line of ethical thinking which takes a different stance on the intrinsic value of embryonic and foetal life. This view believes that sentience, the capacity to feel pain and pleasure, is ethically significant. As a result, sentient life has a higher moral value than non-sentient life. For many women and many ethicists, there is nothing intrinsically wrong with intentionally ending embryonic or foetal life because that life is not sentient.
Of course, this is only part of the picture, not least because embryos and foetuses become valuable in our lives as we sentient beings care for them. But the view that sentience is a better starting point than conception for separate protection is well-established in the ethical literature. In other words, it is perfectly justifiable to allow women decide on abortion because abortion is not intrinsically wrong from a sentience perspective.
Women are intrinsically valuable as sentient beings
We might even say that a law that permits abortion is ethically preferable precisely because women are intrinsically valuable as sentient beings and moral agents. If we want to live in a world that encourages moral agency and ethical deliberation, we need to assume the best of pregnant women.
In the context of pregnancy, women are the most relevant experts. They are the ones sustaining the pregnancy within their bodies and evaluating its significance in real, everyday circumstances. Pregnant women are often full of hope and make decisions to benefit their future child, even as they also worry about the future and what it might bring. They may be happy about being pregnant even if they feel sick and tired. But obviously women may also be unhappy about being pregnant for all kinds of reasons. If we don’t take women’s views about this intimate experience seriously, we risk turning that pregnancy into a non-consensual intrusion.
It’s time, beyond time, to draw on our commitments to ‘do no harm’ and ‘assume the best of each other’ and change legal thinking about pregnancy. The legal system can best reduce harm by removing the legal equality between woman and foetus. Irish law can best value human life by taking sentience seriously. Treating non-sentient and sentient life, foetus and woman, as if they are the same misrecognises and disrespects both forms of life. Perhaps we can begin to repair the hurt and anger by recognising pregnant women as sentient beings and putting their feelings and thoughts at the centre of medical decision-making.
Dr Ruth Fletcher is a Senior Lecturer in Medical Law at Queen Mary University of London and a graduate of Trinity College Dublin and University College Cork.
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