A Case Against Abortion: Coming to Terms with the Termination of Pregnancy Debate

Authors

  • Fomchang M. Valery

Keywords:

Foetal rights, abortion, pro-life, pro-choice

Abstract

In modern times, abortion has become an intellectual subject both at domestic and global levels, attracting great academic, legislative, and judicial comments. Its prevalence in the world is increasing rather than decreasing. It is against this backdrop that this study is designed to ensure that the best interest of the unborn child is served. To this effect, the position that should guide healthcare providers when dealing with unborn children at pregnancy is that they have a right to life. Additionally, the study holds that, in the absence of any justified therapeutic reasons, we may assume that the pregnancy should be continued. Thus, the role of the medical practitioner is to provide the unborn child with the best possible condition to continued living. This study examines some assumptions underlying the law’s attempt to deal with claims advanced on behalf of the fetus. The aim is to ascertain lawmakers' perspectives on the fetus and whether it is acknowledged as a separate entity with interests warranting protection. This study makes a case against abortion. It examines pro-life’s argument and the issue of the beginning of human existence. It is argued that (1) life begins at conception, so the law prescribes any act ending it. (2) That the fetus at conception is endowed with legal rights that must be protected. The study then probes into the legal protection accorded by the law to the fetus arguing that, physicians should strive to cater for the interest of the unborn child. At the same time, they should only terminate a pregnancy if it is permitted by the law and not because the mother has a right of what should happen to her body. The study then concludes by exposing the gaps in the current law as well as providing some suggestions on where the law should go.

References

Law No. 65-LF-24 of 12 June 1967 relating to the Cameroonian Penal Code.

Roe v. Wade, 410 U.S. 113 (1973). Justia Law. 2024. Available from: https://supreme.justia.com/cases/federal/us/410/113/#:~:text=U.S.%20Supreme%20Court,-Roe%20v.&text=A%20pregnant%20single%20woman%20(Roe,of%20saving%20the%20mother's%20life.

Webster v Reproductive Health Service 492 U.S. 490.

Supreme Court Case: Dobbs v. Jackson Women’s Health Organization. Center for Reproductive Rights. 2023. Available from: https://reproductiverights.org/case/scotus-mississippi-abortion-ban/.

Finnis J. The Rights and Wrongs of Abortion. Philosophy and Public Affairs. 1973; 2: 117–145.

One of the most well-known arguments in favour of the woman’s autonomous decisions over that of foetus is by Judith Thomson. A Defense of Abortion. Philosophy and Public Affairs. 1971 Autumn; 1(1): 47–66p, on the famous violinist analogy.

Section 58(1) of the Offence Against the Person Act 1861. This provision is applicable to the English Regions of Cameroon thanks to the provision of section 11 of the Southern Cameroonian High Court Law 1955 that requires that: “Subject to the provision of any written law and in particular this section and of section 10, 15, and 22 of this law: the common law, the doctrines of equity and the statute of general application which were in force in England on the first day of January 1900, shall in so far as they relate to any matter with respect to which the legislature of the Southern Cameroons is for the time being competent to make laws, be in force with the jurisdiction of the court.”

The word “abortion” is defined by Ferrara Grace M. Medical Science and The Law: The Life and Death Controversy. Facts on File Inc; 1977; 8p, as the “termination of a pregnancy before the foetus had attain viability.”

Harvey, David. (2001). Heritage Pasts and Heritage Presents: temporality, meaning and the scope of heritage studies. International Journal of Heritage Studies. 7. 10.1080/13581650120105534.

Zama I. The Medical Doctor, Abortion and the Law in Cameroon. Juridis Périodique, No. 13, Janvier-Fevier-Mars. 1993; 59p.

Keown J. Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803–1982. CUP; 1988; 3.

Carr C. Course Notes Medical Law and Ethics. Rutledge Publishers; 2013; 143.

Quote from then-Justice Minister Pierre Trudeau when he introduced modernizing reforms to the Criminal Code in 1967. The decision of Paton v British Pregnancy Advisory Service (1978) in which Lord Baker held that: ‘The foetus cannot, in English law, in my view, have any right of its own at least until it is born and has a separate existence from the mother.’ The case of St George’s Healthcare Trust v S (1998) where the Court of Appeal explained that: “‘Although human and protected by law . . . an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion

Marquis D. Why Abortion is Immoral. J Philos. 1989; 86(4): 183–202; Warren MA. On the Moral and Legal Status of Abortion. Monist. 1973; 57(1): 43–61; the balance view of the gradualist approach of Mackenzie. Abortion and Embodiment. Australas J Philos. 1992; 70(2): 136–55, in which he explains that, the pregnant woman “is no longer herself but herself and another, but this other is not yet separate from herself’.”

Thomson J. op. cit. 1971; 47–66.

Supra 2n.

Elliot v Joicey, [1935] UKHL 3 | United Kingdom House of Lords, Judgment, Law, casemine.com. https://www.casemine.com. 2023. Available from: https://www.casemine.com/judgement/uk/5a8ff8ca60d03e7f57ecd770

Law No.96/06 of 1 January 1996 relating to the Constitution of the Republic of Cameroon.

Jabbar And Ors. vs State on 17 December, 1965. Indiankanoon.org. 2024. Available from: https://indiankanoon.org/doc/1275356/

State v. McKnight, 2008 Ohio 2435 | Casetext Search + Citator [Internet]. casetext.com. Available from: https://casetext.com/case/state-v-mcknight-15

Dawn EJ. The Creation of defense Rights: Conflicts with Women’s Constitutional Right to Liberty, Privacy and Equal Protection. Yale Law J. 1986; 95(3): 599–625.

Warren MA. On the Moral and Legal Status of Abortion. Monist. 1973; 57(1): 43–61.

Supra 2n.

The act of killing a foetus or causing a miscarriage.

Ferrara GM. op. cit. 1977; 7–8.

Jefferson v. GRIFFIN &C. HOSPITAL AUTH. Justia Law. 2024. Available from: https://law.justia.com/cases/georgia/supreme-court/1981/37244-1.html

Warren MA. op. cit. 1973; 43p.

Ibid. 43–61p.

Supra 2n.

Carr C. Course Notes Medical Law and Ethics. Routledge Publication; 2013; 146.

Carr C. op. cit. 2013; 146p; Finnis J. The rights and wrongs of abortion. Philosophy and Public Affairs 1973; 2: 117–145.

Eisenstadt v. Baird, 405 U.S. 438 (1972). Justia Law. 2024. Available from: https://supreme.justia.com/cases/federal/us/405/438/

Per Justice Brennan in Eisenstaedt v Baird, 405 U.S. 436, p. 453.

Article 1 to 3 of the FOCA.

See Section 339(1) and (2) of the Cameroon Penal Code.

Supra 4n.

Davis v. Davis | Case Brief for Law Students | Casebriefs. Casebriefs.com. 2014. Available from: https://www.casebriefs.com/blog/law/health-law/health-law-keyed-to-furrow/reproduction-and-birth/davis-v-davis/.

Supra 17n.

Supra 19n.

Section 1 of the Abortion Act of 1967.

Section 20 in The Transfer of Property Act, 1882. Indiankanoon.org. 2024. Available from: https://indiankanoon.org/doc/1472923/#:~:text=Where%2C%20on%20a%20transfer%20of, thereof%20immediately%20on%20his%20birth. .

Konahally Vasanthappa, v. Konahally Channabasappa and Others, Karnataka High Court, Judgment, Law, casemine.com. https://www.casemine.com. 2023. Available from: https://www.casemine.com/judgement/in/56b495cd607dba348f01515d.

Supra 2n.

See the case of Planned Parenthood of South Eastern Pennsylvania v Casey 505 US 833.of her body against her will, whether her own life or that of her unborn child depends on it.” (Emphasis mine).

Supra 4n.

See the Miss. Code Ann. S41-41-191.

Veitch E, Tracey RRS. Abortion in the Common Law World. Am J Comp Law. 1974; 22(4): 652–696.

Watt DJ. Infant Burials and Romano-British Christianity. Archaeological Journal. 1989; 146(1): 372–383.

Blackstone William. Commentaries on Law of England. Vol. 5. Chicago: University of Chicago Press; 1765; 388.

Section 58 of the 1861 Abortion Act.

Child destruction Bill. Parliamentary Debates (Hansard). United Kingdom: House of Lords; 1928 Jul 12. Col. 998-1000.

R v Bourne (1939) 3 All ER 615.

The German appellation of Cameroon as refer to by the British and Cameroun as referred to by the French.

Ngoh VJ. History of Cameroon Since 1900. Cameroon: Limber Presbyterian Printing Press; 1996; 168.

Gardinier DE. The British in the Cameroons 1919-1939. In: Prosser G, Roger Louis WB: Britain and Germany in Africa, Imperial Rivalry and Colonial Rule. New Heaven and London: Yale University Press; 1967; 523.

Kale PM. Political Evolution in the Cameroons (Buea), West Cameroon Government Press; 1968; 8.

See Article 5(a) and 4(1) of the Trusteeship Agreement with British and France respectively.

Bite-sized Tips No. 24: Quotation Marks or Italics [Internet]. Tranix Translation & Editing Services. Tranix Translation & Editing Services; 2017. Available from: https://nikkigrahamtranix.com/2017/04/29/bite-sized-tips-no-24-quotation-marks-or-italics/.

LE CODE CIVIL Me Pierre BOUBOU LE CODE CIVIL TITRE PRELIMINAIRE De la publication, des effets et de l’application des lois en général. Available from: https://www.mintp.cm/uploads/Textes%20G%C3%A9neraux/TEXTES%20PORTEE%20GENERALE/CODE%20CIVIL%20CAMEROUNAIS.pdf.

Magloire H, Minkada M. La crise de la présomption d’innocence: regard croisé sur la procédure pénale camerounaise et de la Cour pénale internationale. Available from: https://www.tribunajuridica.eu/arhiva/An4v2/7%20Minkada.pdf.

Arête No 530 du 20 Auot 1971.

Infant Life (Preservation) Act 1929. Legislation.gov.uk. 2024. Available from: https://www.legislation.gov.uk/ukpga/Geo5/19-20/34/section/1.

Zama, I., op. cit., p. 60.

Ebi J. THE STRUCTURE OF SUCCESSION LAW IN CAMEROON: FINDING A BALANCE BETWEEN THE NEEDS AND INTERESTS OF DIFFERENT FAMILY MEMBERS. 2008. Available from: https://etheses.bham.ac.uk/id/eprint/300/1/NzalieEbi09PhD_A1a.pdf

Ministère Public c/Dr. Essoungou Benoit op. cit, p. 120.

Burton v Islington HA (1992) 3 All ER 833, (1993) QB 204, (1992) EWCA.

Section 1(3) of the 1976 Congenital Disabilities (Civil Liability) Act.

Ibid, Section 2.

Bagley v North Herts HA (1986) 136 NLJ 1014.

Vo v. France | Global Health & Human Rights Database. Globalhealthrights.org. 2024. Available from: https://www.globalhealthrights.org/vo-v-france/.

MTP ACT, 1971 | Ministry of Health and Family Welfare | GOI [Internet]. Mohfw.gov.in. 2019 [cited 2024 May 23]. Available from: https://main.mohfw.gov.in/?q=acts-rules-and-standards-health-sector/acts/mtp-act-1971#:~:text=(1)%20Notwithstanding%20anything%20contained %20in,the%20provisions%20of%20this%20Act.

Royal College of Nursing of UK v DHSS (1981) AC 800, HL.

Aji Markose, Krishnan R, Ramesh M. Medical ethics. Journal of pharmacy and bioallied sciences. 2016 Jan 1;8(5):1–1. Available from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5074007/.

R v Smith (1974) 1 All ER 376, CA.

On the duty to respect life as a ground for procuring the abortion of a woman, see also Article 1 of Decree No. 83–166 of 12th April 1983.

R v Bourne (1939) 3 All ER 615.

Quenby S, Gallos ID, Dhillon-Smith RK, Podesek M, Stephenson MD, Fisher J, et al. Miscarriage matters: the epidemiological, physical, psychological, and economic costs of early pregnancy loss. Lancet. 2021 May 1;397(10285):1658–67. Available from: https://pubmed.ncbi.nlm.nih.gov/33915094/

Finnis J. op. cit. 1973; 117–145.

Hippocratic Oath. Translated by Micheal North. US: National Library of Medicine; 2002. Available at: https://www.nlm.nih.gov/hmd/greek/greek-oath.html (last accessed on 22 March 2023).

Published

2024-03-30