Exploring Global Perspectives: A Comparative Analysis of Abortion Arguments & Laws
In the realm of contentious issues, few have caused fierce divisions worldwide quite like abortion. From fervent proponents to vehement opponents, this longstanding controversy has ignited impassioned arguments, with some going as far as to call abortion murder. Abortion is defined as the deliberate termination of pregnancy through the expulsion of the embryo or fetus. At its core, the debate revolves around fundamental aspects such as the morality of abortion, determination of when an embryo’s life is viable, the concept of personhood, and the delicate balance between an individual’s right to bodily autonomy and the sanctity of human life, raising crucial questions on the hierarchical precedence of these rights. Against a backdrop of divergent social, political, philosophical, and religious factors, the abortion debate emerges as a complex tapestry, shaped by diverse agendas. In this article, we aim to deconstruct key elements of this intricate debate, with a particular emphasis on exploring the contrasting perspectives on abortion laws across different countries. By unraveling the intricacies of this discourse, we seek to foster a comprehensive understanding of the complex legal landscape surrounding abortion.
Is a fetus human?
The first overarching question the abortion debate aims to settle is the one on whether (and if at all) when exactly a fetus should be accorded the same rights as a human being.
Some belief that life begins at conception. Conception occurs when a sperm successfully fertilises an egg to form a zygote. In the realm of science, at the moment of fertilisation, the sperm and the egg each contributes half of the genetic material required to create a unique individual. The zygote possesses a distinct combination of genetic information from its’ mother and father. The generation of this genetically distinguishable variant of DNA, and the capacity for this DNA/fetus to develop into a distinctive individual, engenders a viewpoint among certain proponents of the right to life that conception gives rise to the inception of a novel human life. Believers of Catholicism and Islam also echo this view based on their religious beliefs.
Detractors on the other hand, raise the issue of fetal personhood and the determination of when an individual should be granted human rights. They draw a distinction between human DNA and the concept of a 'person.' They posit that mere possession of human DNA does not automatically qualify something or someone as a person. Instead, they argue that criteria such as cognitive ability, consciousness, capacity to experience pain, self-awareness, and other factors should be considered. The definition of personhood itself is a subject of intense debate, given the inherent diversity of human nature. Due to this diversity, there is no universally agreed-upon set of criteria that definitively establishes what constitutes a 'person.' Each individual, therefore, may prioritize their own specific criteria when determining whether a fetus should be considered a 'person' and be entitled to human rights.
An alternative perspective posits that a fetus should be granted human rights once it can sustain independent survival, whether or not medical assistance is required, outside of its mother's womb. This condition, commonly known as viability, typically occurs during the third trimester when the fetus is approximately 26-28 weeks old. Proponents of this viewpoint advocate for the prohibition of abortion once the fetus reaches this developmental stage. The landmark legal case of Roe v Wade, which legalized abortion, adopted viability as the criterion for determining when the fetus should be endowed with rights. The court ruled that during the third trimester, when the fetus can be considered capable of surviving outside the mother's womb, the state has a vested interest in safeguarding the fetus and is therefore empowered to impose restrictions on or prohibit abortions.
Woman's Right to Bodily Autonomy vs. Fetal Right to Life
The second question at the center of this debate pertains to the potential precedence of a woman's right to bodily autonomy over the (presumed) right to life of a fetus, under any circumstances.
While there exists a general consensus that abortion is permissible when the presence of the fetus poses a significant threat or endangers the life of the mother, it appears myopic to limit the permissibility of abortion solely to such cases. For instance, should a child still be brought into the world when the mother is financially incapable of providing for or raising the child in a suitable environment? Some argue in favour of this, suggesting that the children could be placed in orphanages. However, it is crucial to assess whether this alternative constitutes a viable approach to fostering the children's overall development and future prospects.
The phrase 'My body, my choice' is commonly employed by advocates of the pro-choice stance on abortion. They strongly believe that the ultimate decision regarding whether to terminate a pregnancy rest solely with the mother. This perspective arises from the understanding that the fetus is developing within the mother's body, which undergoes significant changes and carries the physical burden of pregnancy. Consequently, proponents argue that the choice should be entirely hers to make. Opponents of this viewpoint contend that individuals who engage in sexual activity, whether intentionally or unintentionally, owe a duty of care to the unborn life, as the very act of sex, regardless of intent, carries the potential for procreation. Furthermore, they assert that women have a moral obligation to safeguard the fetus once they become pregnant. However, those who disagree with this stance assert that prohibiting abortion amounts to legislating morality, raising further questions, and creating a potential slippery slope of issues.
Some hold the belief that despite the existence of conflicting rights, there should be provisions allowing for abortion in cases involving mitigating circumstances, such as rape. However, this viewpoint presents an inherent contradiction by attributing a moral responsibility to the act of sexual intercourse, regardless of consent, while simultaneously making an exception for victims of non-consensual sexual encounters.
The divergent array of beliefs and perspectives held by individuals across the globe, stemming from their unique socio-cultural backgrounds, lead to varying positions on the topic of abortion and consequently result in diverse abortion laws across different jurisdictions. These legal frameworks have had far-reaching consequences on society within their respective countries, yielding both advantageous and disadvantageous outcomes pertaining to women's healthcare, individual liberties, and overall well-being. This analysis aims to examine the abortion laws of various nations, elucidating their ramifications on local societies as well as the global community as a whole.
El Salvador
El Salvador has a longstanding adherence to Catholicism, which has played a significant role in shaping its abortion laws since the era of Spanish colonial rule in the 1500s. The Catholic Church's doctrinal stance on the sanctity of life from conception has exerted a strong influence on the legal framework surrounding abortion. Consequently, societal attitudes in El Salvador have been deeply imbued with the Church's anti-abortion perspective. Catholicism has thus assumed a central position within the national identity and cultural fabric of the country. In 1973, El Salvador implemented a ban on abortion, albeit with exceptions in three specific circumstances: when the mother's life was in imminent danger and abortion was the only means of preserving it, when the pregnancy resulted from rape, and when the fetus displayed severe birth defects or abnormalities. However, in 1988, a new penal code was enacted, resulting in a complete prohibition of abortion under all circumstances. Furthermore, the law imposed penalties on medical practitioners and other healthcare professionals who assisted in abortion procedures. Women found guilty of undergoing an abortion now face prison terms ranging from 2 to 8 years, while healthcare professionals aiding in such procedures can be sentenced to up to 12 years of imprisonment. Although this law was shaped by Salvadorians' religious beliefs and cultural context, which regard motherhood and pregnancy as sacred obligations, its impact on women and society at large has been profound.
Since 1990, the abortion rate has maintained a consistent level of 25% of all pregnancies, despite the continuous decline in the rate of unintended pregnancies. This suggests that unintended pregnancies and abortion are not directly correlated in a linear fashion. This alludes to the fact that additional factors, such as limited availability of secure and lawful abortion services, societal stigma, or legal constraints, might contribute to this steady rate.
The implementation of restrictive abortion laws has created a climate fear and secrecy, which has compelled women and girls to resort to extreme measures in order to terminate pregnancies. These desperate actions include ingesting harmful substances such as rat poison or pesticides, as well as inserting knitting needles, pieces of wood, and other sharp objects into the cervix. Additionally, the use of the ulcer treatment drug misoprostol, which has gained widespread popularity as a means of inducing abortions, has become prevalent. Notably, in El Salvador between 2015 and 2019, there were a total of 188,000 pregnancies annually, out of which 104,000 were unintended and 43,300 resulted in abortion. Despite the grave risks associated with these methods, the lack of viable alternatives for abortion has left these women with no choice but to resort to such measures.
In El Salvador, there is a prevailing trend of charging women who experience miscarriages, despite having no intention to abort, with homicide. This practice was exemplified in 2008 when Teodoro Del Carmen Vasquez was sentenced to 30 years in prison for the charge of 'aggravated homicide' following a stillbirth that occurred while she was at work. Subsequently, a rigorous legal battle unfolded between human rights lawyers representing Carmen Vasquez and the prosecution. Eventually, in 2018, the Supreme Court commuted her sentence, yet this decision came after she had already served 10 years of her life in prison for an event beyond her control.
These are the stark realities that arise from the implementation of restrictive abortion laws. In such circumstances, women who face life-threatening situations find themselves constrained by legal barriers, being denied access to necessary life-saving medical interventions. Moreover, medical professionals, bound by their oath to preserve human life, are forced into the position of assuming the roles of judge, jury, and executioner, as they are compelled to make the difficult decision of upholding their duty while risking potential imprisonment. Dr Ronald Lopez, an obstetrician-gynaecologist working in the maternity ward of the National Women's Hospital in San Salvador, vividly recounted a case during an interview with CBS News. He shared the story of a woman suffering from heart disease, whose pregnancy posed a severe risk to her life. Dr Lopez emphasized, "We were fully aware that allowing the pregnancy to continue could result in the woman's death," and regretfully added, "We were unable to proceed with the abortion, which ultimately led to the woman's demise approximately nine weeks later, along with the loss of the baby."
Netherlands
Abortion in the Netherlands was fully legalised in 1984, allowing elective abortion care up till the 24th week of pregnancy. While there was an initial ban on abortion criminalising it in 1886, the country experienced significant social and cultural change over the next century. The feminist movement's emergence, in conjunction with broader shifts in societal attitudes emphasising personal autonomy and individual freedoms, has been pivotal in influencing perspectives on reproductive rights.
The primary objective of Netherlands’ abortion laws is to safeguard women’s health by preventing a need for clandestine abortions. 110 hospitals are allowed under the law to carry out abortions, with 19 of these hospitals focusing exclusively on abortion procedures, which accounts for 90% of abortions. Providing safe and regulated abortion services reduces the risks unsafe practices can bring about to women’s lives and helps protect their wellbeing.
The Dutch 'Termination of Pregnancy Act' has been effectively implemented, demonstrating a consistent termination rate of approximately 8.6 per 1,000 women between the ages of 15 and 45. This accomplishment has positioned the Netherlands among the countries with the lowest abortion rates worldwide, despite the country's permissive stance on abortion. Consequently, one must contemplate the genuine repercussions that restrictive abortion laws can yield, given that nations such as El Salvador continue to experience high abortion rates despite imposing stringent bans on the practice.
However, it is noteworthy that the Netherlands’ progressive legislation on abortion, is part of a broader commitment towards the establishment of a comprehensive sexual and reproductive healthcare infrastructure. Prior to undergoing an abortion, women are provided with the opportunity to seek guidance from certified healthcare professionals, enabling them to proceed with the procedure in the safest manner possible and minimizing potential risks to their well-being. This approach is complemented by comprehensive sex education in schools, accessibility to contraception, and family planning services, all of which contribute to the enhancement of women's overall health. By maintaining liberal abortion laws, the Netherlands has fostered a society that embraces and supports women's reproductive choices while eradicating the societal stigma associated with abortion, thereby fostering the development of a more inclusive society.
This two-pronged approach of using its liberal abortion laws coupled with having am encompassing reproductive healthcare infrastructure has aided the Netherlands in fostering an embracing and inclusive society, thereby alleviating the concerns of women on societal stigma they have to face based on their reproductive decisions. This progressive environment has empowered women to exercise their autonomy and make choices that align with their personal desires. Consequently, these developments have resulted in a notable reduction in the incidence of abortion. The implementation of comprehensive sexual education programs and improved accessibility to contraception has facilitated the adoption of safe sexual practices, thereby minimising unintended pregnancies and subsequently decreasing the abortion rate in the Netherlands.
Contrasting various legal frameworks
When comparing the conditions surrounding abortion in El Salvador with those in the Netherlands, it becomes apparent that the Netherlands provides greater protection for women's wellbeing and health due to its liberal abortion laws, which encompass a wide range of circumstances. In contrast, El Salvador's restrictive abortion laws completely prohibit abortion without any exceptions based on circumstances. Interestingly, despite the Netherlands having more permissive abortion laws, the abortion rate per 1000 people in the country is lower than that in El Salvador.
Women's rights advocates have vigorously advocated for the amendment of El Salvador's antiquated and restrictive legislation to enhance the safeguarding of well-being and health-related issues associated with unlawful termination of pregnancies. It is crucial to acknowledge, nevertheless, that the prevalence of illegal abortions in El Salvador does not inherently signify a broad consensus in favour of legalising abortion. Instead, it underscores the pressing imperative to enhance the nation's reproductive healthcare infrastructure.
In order to effectively reduce abortion rates, countries such as El Salvador should consider adopting methodologies implemented by the Netherlands. These approaches include implementing comprehensive sexual education programs within educational institutions, facilitating convenient access to contraception, and enhancing the quality of reproductive healthcare services. It is imperative to establish a supportive environment by fostering societal dialogue, thus cultivating an atmosphere that is inclusive and accepting towards women experiencing unintended pregnancies. Additionally, El Salvador should reassess its abortion legislation to ensure its alignment with contemporary perspectives of their citizens, while still reflecting the predominant beliefs and values of the nation. If determined that the existing laws are archaic, appropriate modifications should be introduced to address the evolving societal context. These adaptations should aim to uphold inherent religious values, while simultaneously promoting the overall well-being of the populace.
In conclusion, the divergent abortion laws in El Salvador and the Netherlands demonstrate the complexity of balancing societal beliefs and women's health. This delicate balance has to be continuously evaluated and refined to address the evolving needs and rights of individuals. Ultimately, I believe that while countries strive for abortion laws that uphold their beliefs, it is equally crucial to establish requisite supportive frameworks that collaborate seamlessly with these laws. This synergy is essential to proactively address and mitigate potential negative ramifications, to ultimately realise the intended objectives of such legislation. By fostering dialogue and prioritizing women's health, I hope that societies can work towards creating a more equitable and compassionate approach to reproductive rights.
This article under Legal Eye is written by Inspire Law's Writer, Hemant Prathiban. Read more of his pieces on 'The Feed'.
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