Abortion: why the 24 week rule is absurd

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.

Published by Owen Barder

Owen is Senior Fellow and Director for Europe at the Center for Global Development and a Visiting Professor in Practice at the London School of Economics. Owen was a civil servant for a quarter of a century, working in Number 10, the Treasury and the Department for International Development. Owen hosts the Development Drums podcast, and is the author Running for Fitness, the book and website. Owen is on Twitter and

Join the conversation

6 Comments

  1. A more interesting debate could be had on the merits of any viability distinction, as opposed to the particular one of 24 weeks (6 months, or end of second trimester). In the US most states define the time of viability at the first trimester, or 12 weeks. This definition is not based on medical technology, but on the fact that before the end of the first trimester, there is no brain activity, and the musculo-skeletal system of the fetus is not being controlled by any consciousness. Such a definition divorces viability from medical technology and also addresses a variety of other concerns such as the human rights argument raised above. If something is not really alive (has no personal consciousness or ability to act as an independent agent) then it cannot be lumped into the same category as human beings with full moral and practical agency. Thus, it becomes obvious that this entire bloody debate is based on nothing more than semantics of a few key terms.

  2. Through abortion, you are violating the right of an unborn baby and ethically this is insane.

    Owen replies: I came close to deleting this comment as spam; but left it because it shows the unthinking position of some opponents of abortion. If you bothered to read the article above, you would see a carefully argued position explaining why I don’t think that the foetus has rights (it is an “unborn baby” in the same sense that sperm is an “unborn baby” or a piece of steel is an “unmade car”.)

  3. Owen. You considered deleting a previous comment that disagreed with something you stated in the article.

    Is this article open to opposing opinions that are valid and well said in a respectful manner?

  4. An unborn baby has every human component present within itself at the exact moment of conception.

    A car has many pieces that must be made, welded, shipped seperately and must be put together by machines and people, it doesn’t grow into a car. Also, it doesn’t have a heart or a brain and so an and so forth.

Leave a comment

Your email address will not be published. Required fields are marked *