I am Pro-Life.

I don't say enough on this blog about pro-life issues. Here is an article that recently appeared in the National Post.

New Life Matters
Margaret Somerville
National Post

In the past three years, at least five pregnant women, along with their babies, have been killed in Canada in violent attacks. The most recent occurred last month in Toronto. Pregnant women are at increased risk of domestic violence. The sense of abhorrence this elicits, especially when the violence is lethal, is magnified because of the loss of the fetus. Yet, at present, it is not a separate crime when a fetus is killed or injured. This should change. A just-released Environics poll asking if killing or injuring a fetus should be a crime found that 75% of Canadian women and 68% of men would support a fetal protection law (the level of support amongst all Canadians was 72%). The same poll found that, overall, 62% of Canadians support legal protection of the unborn child at some point before viability. (The Canadian Medical Association guidelines define fetal viability -- the possibility that the fetus can survive outside its mother's womb -- to be 20 weeks gestation and/or 500g in weight.)

In short, many Canadians' moral intuition is that "there ought to be a law" -- or laws -- protecting fetuses from some harms, although we don't all agree on what those laws should be, especially in the context of abortion. Presently in Canada, there is no express abortion law.

The Supreme Court of Canada has consistently ruled that under our current law the fetus does not exist as a protectable human being, and the Criminal Code holds that a child becomes a human being for the purposes of a homicide offence only after it is born alive. This means that criminal liability specifically for the wrong of killing a fetus in the course of a criminal act cannot at present be imposed. Only the wrong to the mother is legally cognizable.

Proposals for an Unborn Victims of Crime Act are adamantly opposed by pro-choice abortion advocates, for fear that any legal recognition of the fetus will lead to the re-criminalization of abortion. They accuse pro-life supporters of promoting such legislation as a back-door means to prohibit abortion. It's true that such a law could cause us to view the fetus and, therefore, abortion differently. But willful blindness is not an ethical approach to dealing with abortion.

Seeing the fetus as an unborn victim of crime strips away the medical cloak that abortion places on the taking of its life, a cloak that dulls our moral intuition as to what is involved. It causes us to see the fetus as what it is, an early human life. Those who support abortion must be able to square that fact with their belief that abortion is ethical in certain circumstances.

Abortion is always a moral and ethical issue. That does not mean, however, that it should always be a legal issue. But neither should it never be a legal issue as is presently the case.

As the legal void highlighted by the tragic murders of pregnant women show, we need to re-think our overall approach to the law relating to prebirth human life, including in relation to abortion. And we should do this within a context that promotes informed consent for women and the recognition of fetal pain.

Informed-consent law requires that a woman be given certain information if her consent to abortion is to be legally valid. In particular, the woman must be given information about the mental and physical health risks abortion poses.

A "Fetal Pain Awareness Act," similar to those some American states have enacted, could require a physician to inform the woman, before performing an abortion, that scientific evidence suggests that after 20 weeks gestation the fetus can feel pain. Furthermore, she would have to be offered anaesthesia for the fetus, which it would be her choice to take or decline. This type of law would not prohibit abortion; rather, its goal is to try to prevent the fetus from dying in excruciating pain. After all, even jurisdictions that allow capital punishment prohibit certain forms of it on the grounds that they are cruel. Likewise, we have criminal laws that protect animals from brutal treatment.

The fetus is a new human life. That matters ethically, and should matter legally. An Unborn Victims of Crime law would recognize that in one particular situation. What law should govern abortion is a separate issue that raises some different considerations, but having no law is not a neutral stance. It contravenes values that form part of the bedrock of Canadian society.

-Margaret Somerville is an ethicist at McGill University and author of The Ethical Imagination: Journeys of the Human Spirit.

© National Post 2007

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