I don’t usually give content warnings but this is an upsetting one, about abortion and miscarriage
Grieving parents who have lost a baby through miscarriage before 24 weeks can now apply for a “baby loss certificate”, according to a Thursday headline from the Guardian. The, the very next day, the Telegraph reported that Parliament will soon hold a free vote on whether to decriminalise abortion to term, predicting that most MPs will support the measure.
So is an unborn baby a person to be mourned, or not? It’s complicated. But the proposed new legislation will make it even more complicated - and, if it passes, its consequences will echo a long way.
Abortion is such a contentious issue for us because, especially in early stages of gestation, pregnancy flies full in the face of the central premise of liberal modernity: that we are separate individuals. Pregnancy confronts mothers with the fact that another human life is radically dependent on our ceding space in our own bodies. It also confronts all of us with the fact that we begin life not as separate, autonomous subjects but merged with our mothers: not quite two, but not just one either. And when so much of our moral order is predicated on individual rights, where the wishes of a mother and the needs of a dependent baby in utero seem to be in conflict, this makes the proper balance of rights acutely difficult to assess.
The compromise solution in most cases has been to seek some kind of workable consensus on when babies in utero should begin to be treated as people, in something like the liberal individualist sense. We have strict laws on not killing people, so the legal consensus on the exact point where zygotes become people has far-reaching ramifications. I won’t rehearse this whole painful debate, but in a nutshell the abortion maximalist stance holds that babies don’t become people until they’re born, while the abolitionist one holds that babies are people from conception.
European countries where some abortion is permitted vary in where they draw the line, but typically it’s somewhere between the end of the first and the second trimester. And the corollary of drawing the line is that the law must then recognise that after this point, the baby is a person. And because in most cases the baby will still spend another 3 months in utero, protecting the interests of that person can sometimes mean infringing on those of the mother, where these are in zero-sum conflict.
Until now, abortion has been criminalised in the UK after 24 weeks, except in cases of such severe abnormality that the baby would not survive anyway, because 24 weeks is the approximate age at which a baby has a decent chance of surviving even if born prematurely. You can argue against this, but as a pragmatic cut at squaring individual “rights” with the interdependent reality of mothers and babies, it makes a crude kind of sense that is relatively easy to communicate. But inevitably drawing any line at all means applying the blunt instrument of law - and sometimes criminal sanctions - in an area that’s emotive and almost always painful, such as when a pregnant mother harms her own baby at this stage of gestation.
Last year, for example, a woman was prosecuted in the UK for misleading the British Pregnancy Advice Service about her gestational stage, in order to procure “pills by post” to end her pregnancy during Covid at around 28 weeks’ gestation. The court acknowledged that she was racked with guilt and recurring nightmares for her actions, and the case prompted widespread anger at the fact that she would now be punished again, when evidently already suffering. As late-term abortion is already permitted for severe abnormalities, the current move to decriminalise late stage abortion comes in response to such cases. The well-intentioned aim is to extend compassion to women who do something in extremis that, if pushed, all but the most hardline abortion maximalist would understand as killing a viable baby.
The difficulty is that this has far wider implications. For while the intent may be compassion toward women in impossible situations, the side-effect is a far-reaching change in how the law assigns personhood to infants, such that they can be protected by criminal law as people. There are, as noted, a range of views on this; in England, currently, it’s 24 weeks’ gestation, and the rationale for this is independent viability. Decriminalising abortion to birth undermines this crude but reasonably common-sense stance.
If it’s no longer a criminal offence to kill a person in these particular circumstances, when does the infant assume full personhood such that this is no longer true? When does killing them become a crime? There is no immediately obvious point. Why should we say ‘at birth’ if viability after 24 weeks is a sliding scale? Why not two years after, as Peter Singer argues, for example when a toddler can walk and talk?
The implicit solution is there in the government announcement, concurrent with this event, of “baby loss certificates”. These are, in effect, documents that acknowledge for parents who suffer a miscarriage that their baby was a baby, even if miscarried at an early gestational stage. That, in other words, a person existed whose death can be mourned. I was devastated by my own experience of miscarriage, and likely would have appreciated this. But does it make sense to produce certificates acknowledging the baby-ness of an early pregnancy, for grieving parents experiencing miscarriage, while legislating elsewhere to diminish the baby-ness of a late-stage pregnancy for desperate women terrified - like the woman in last year’s court case - of the social consequences of her pregnancy? From a perspective that views personhood as given, as our legacy Christian worldview does, the answer must surely be ‘no, this makes no sense’.
It makes a great deal more sense understood in pre-Christian terms. In the Roman order that governed Europe before Christianity, babies weren’t considered people until formally acknowledged by the paterfamilias. Absent this, newborns were routinely ‘exposed’: that is, left to die. Personhood wasn’t given, as a function simply of existing as a human, but in the gift of the household head. Should we adjust our law to decriminalise late-stage abortion, in effect we’ll be returning to this order: declaring ithat a baby is a baby at the discretion of his or her mother. A baby born at 24 weeks may be left to die, or kept alive with every miracle of modern technology, dependent only on what the mother wants. The main difference between the Roman approach and this one, then, is that whereas in antiquity personhood was ascribed by the patriarch, now the authority is the mother.
The faltering influence of the Christian consensus on given personhood is clear today well beyond this painful issue. I doubt I will persuade anyone to change their stance on a woman’s right to choose by referring to it. And (to the disappointment of some more Christian friends) I remain fairly centrist in my stance on abortion, as I outlined in the book: though I think it is profoundly anti-feminist, I don’t think any feminist remedy can take abolition as its starting-point.
But I also think it a grave error to pursue legislation that, however well intentioned, attenuates the current UK consensus on balancing the personhood of infants with the autonomy of mothers. For in doing so we strike at the roots of the broader consensus on personhood as a given. And the very same people who argue for this change, in the name of mothers, may yet discover that this slight unpersoning of slightly more babies does not, after all, create a more compassionate world. On the contrary, it will shuffle us all a few steps closer to a world where a great many other categories of individual will discover their personhood, too, is not given but in the gift of some human authority.
The upcoming vote is presented as kindness to suffering women, but it is in effect a blow against the already faltering consensus on the given-ness of personhood. In its wake, who else might we unperson and in what circumstances? When do disabled or elderly people lose personhood, for example, and in whose gift does this reside? Whose interests take priority, and why? Those who advocate decriminalising late stage abortion in the name of compassion may yet find that the changes they advocated did more to free those with power, than to protect those without it.
I would invite any of your members of parliament to come round in the Neonatal Intensive Care Unit with the under 28 weekers, and see if they can vote for late term abortion after seeing those babies and their families.
I hope they could not, yet I fear they might.
Biology says that a fertilized egg is a zygote, a human life. The actual discussion point, then, is the assignment of rights to that life. Logically, if we say that born life has the authority to decide the rights of unborn life, then the door is open to passing legislation that allows one born group to decide the rights of another born group. A door therefore that may condone genocide, slavery, etc.