Owen abroad

Archive for December, 2003

The Reverend Joanne Jepson has been given permission to seek a judicial review of the decision by West Mercia Police not to prosecute a woman who had an abortion of a foetus that would have been born with a cleft palate.

The current abortion law in England is the 1967 Abortion Act, as amended in 1990 by the Human Fertilisation and Embryology Act. A woman can have an abortion up to 24 weeks in pregnancy provided two doctors agree to her decision. In the period from 24 weeks until birth, a woman can have an abortion only if two doctors agree that there is a threat to the woman's life or if "there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped".

As the law currently stands, the issue is whether a cleft palate constitutes such physical or mental abnormality as to indicate that the child would be seriously handicapped. Cleft palates and cleft lips are largely correctable with early surgery and speech therapy; but they are sometimes part of a wider syndrome, which can include mental handicap. But this case draws attention to a much wider and more important point, which is that the current legal framework is based on a distinction which is irrational and intellectually unsustainable.

Whatever your view of abortion, the law we now have does not make sense. A foetus at less than 24 weeks can be aborted for any reason if the woman chooses, while a foetus which is older than 24 weeks can only be aborted in particular circumstances relating to the well-being of the woman or of the future child. In other words, in the law today, the current law grants greater rights to the foetus at 24 weeks; and from that point the rights of the mother are set against those of the foetus.

The reason that the law draws a distinction at 24 weeks is that this is the approximate time, with current medical techniques, after which a foetus might survive outside the womb. This is superficially attractive as a defining moment in foetal development, so much so that many commentators have appeared on TV in recent weeks contrasting the actions of the woman who has had an abortion after 24 weeks with the fact that in other circumstances doctors would go to considerable lengths to save a foetus of a similar age. But on reflection it is impossible to find a convincing explanation of why the viability or otherwise of the foetus outside the womb should be a determining factor in the rights that society does or does not accord it.

Here are two compelling reasons why the viability of the foetus should not determine the rights that it has:

• First, the viability of the foetus at any given stage of development depends on the state of medical technology. As science advances, so will our ability to keep a premature foetus alive. Eventually we may well be able to incubate a foetus entirely artificially, from test tube fertilization onwards. Are we to say that, when this happens, all eggs and sperm should be accorded rights, because they are "viable" outside the womb?
• Second, we conceive of human rights as universal, which implies that rights depend on the characteristics of the person or thing (eg ability to feel pain, consciousness) rather than on contingent facts about the world around. So a foetus with particular characteristics either has, or has not, rights that need to be taken into account, irrespective of the availability of medical techniques. Are we to say that a foetus in America has more rights than a foetus in Ethiopia, because health care in its neighbourhood is more advanced? No: this contravenes our notion that rights depend on inherent characteristics, not on the state of the world.

It seems to me that we have settled on the viability test (which currently gives us the 24 weeks threshold) because many people feel that a foetus does not have significant rights early on during a pregnancy; but that by the time it is born it has important rights, about the same as those of an infant. We therefore feel that there must be some point of transition at which it acquires these rights and, in the absence of a more convincing moment to choose, use viability to mark the transition.

But this is dangerous for two reasons. First, it obscures the real issues by introducing an irrelevant consideration. There may be good reasons for attributing rights to a foetus; but viability isn't one of them. Second, and of more practical importance, viability will come earlier and earlier as science advances. If we maintain the current rationale, we will over time restrict more and more a woman's right to abortion.This may be what the anti-abortion lobby intends, of course.

But whatever we decide about abortion, we should do so on a rational and consistent basis, and not on an illogical and unsustainable boundary line.

If you want to read more about the moral philosophy of abortion, I recommend Causing Deaths and Saving Lives by Jonathan Glover, now a Professor of Ethics at Kings College, London. This book is humane, logical and very well written, and helps you not only to think about abortion, but also to apply philosophical thinking to other moral issues.

Thirteen million people died last year of curable diseases. Of these, three million children died from diseases that are preventable with currently available vaccines (see GAVI). This is 35,000 people every day – seven times as many deaths each day as died in the attack on the World Trade Centre on September 11, 2001.

The term “intellectual property rights” is (deliberately) misleading. As I explain in a longer article about intellectual property, intellectual property rights are not a natural property right like other property rights (eg for land) which improve the functioning of the market by moving it towards a socially optimal equilibrium. Instead they are an artificial government intervention which distort the market away from its equilibrium, by distorting the price of knowledge above the competitive outcome (ie marginal cost).

There are some good reasons for a government intervention of this sort – namely, that it encourages research and development and hence the increase in knowledge of society as a whole. But it comes with an economic cost, which is a market distortion that causes under-consumption of knowledge-based goods. The cost of this distortion is growing much faster than the benefit, because the knowledge content of goods and services is increasing. The impact includes the death of millions of people every year because they cannot access human knowledge, even though it would cost society nothing at all for them to do so.

There are alternative ways to solve the problem of under-investment in new knowledge which are less economically harmful than intellectual property rights. Governments around the world should consider using those other techniques instead of intellectual property rights.

See the full article here.