Rights of the Woman and the Child in Abortion Law

For many years, the rights of the unborn child were considered more important than those of the mother. Abortion was illegal because it was considered murder. The foetus, regardless of the stage of development, was a person and therefore deserved all the protections that children were given. That the British government also executed children during the 19th century (when many abortion laws were written) was an irony lost on many.

Women had few rights until the 19th century. They were considered the property of their husbands, could not own property themselves, could be raped and abused by their husbands legally, and were excluded from many jobs and workplaces.

The rights of the child were hardly much better. In times when most children would die before their 10th birthday, children were not regarded as preciously as they are today. They were considered humans, however, and abortion was illegal to protect them.

Religion played a big role in shaping pre-modern legislation regarding abortion (and nearly everything else). In the Christian faith, humans have souls and are created by God. To kill a human is the worst sin. Aborting a foetus is to kill a human, according to this view.

Denied the Right

The effect of this prohibition was to deny women the right to choose. Women could not vote or hold office, being widely regarded as stupid and incapable by the men who made the big decisions. That they would be able to choose to destroy life was too much, and women were even executed for having an abortion. Again, the irony was lost on many.

As time passed, the emancipation movement gained momentum and women started slowly to gain the rights to vote, own property, be protected from their husbands, and hold office. At the same time, the rights of children were being improved. The birth of the idea of childhood appealed to Victorians, who for the first time were seeing more of their children survive to adulthood than die. Children were to be enjoyed and could enjoy themselves, instead of being little workers, they could play. The domination of religious morality did not change, however, until much later.

Is a Foetus a Child?

The law is indistinct on this matter. It is illegal to “destroy” a foetus at any stage of pregnancy unless the conditions for legal abortion have been met. After the period of viability (currently 24 weeks) has been passed, that foetus has all the protections of a human being (even if abortion is legal in some cases). Before then, the foetus has laws protecting it, but it is also can be destroyed in some non-life threatening situations. This inconsistency reflects the need for practical abortion legislation. There has to be a line at which it can be said to be acceptable and legal, and after which it is not. The line is almost arbitrary, but using viability as the limit is common across the world.

Mental Health

If the long term mental health of the pregnant woman is deemed to be at significant risk, then a foetus can be aborted before 24 weeks. To some, this is placing happiness over life. To others, it is reflecting the right of a woman to have stable mental health and maybe try again when she is more prepared for it. If a woman was likely to take her own life because of the trauma of pregnancy, the right decision in law would be to protect the woman’s life, not the foetus.

In cases of rape or incest, social stigma and personal trauma are enough to persuade legislators that abortion is legal in these circumstances. Some other countries legalise incest, prohibiting abortion on the grounds of what would legally be considered consensual sex. Rape is not legal anywhere and the trauma of carrying a baby to term and raising him or her after being raped is enough to justify abortion to save the mental health of the pregnant woman.

The Right to Life

The Human Rights Act 1988 states that everyone has a right to life. It also states that everyone has a right to a family life and to privacy. It is this clause that is used to protect the rights of a woman to have an abortion if it threatens her fertility, mental, or physical health.

In an Ideal World

Nobody would have abortions. The rights of a foetus would be the same as anyone else’s. However, this is not an ideal world, and legislation must reflect that. Women will have abortions regardless of the legality of it, so it might as well be legal. The challenge is to find the right balance between the rights of that potential person and the mother. By allowing abortion in cases of physical or mental health necessity, women are given the right to choose what happens in their own bodies and unborn children are protected from the worst excesses of human behaviour.

It is a balancing act that satisfies nobody completely but nearly everyone to some degree. It reflects the need for abortion and the need to prevent harm.