...free to think freely


14th July 2022

Disability and Fœtal Screening

A case before the Court of Appeal concerning abortion law and disability struck my attention yesterday.

Whatever one thinks about Abortion in general, the law as it stands puts an age limit on the fœtus unless it has sufficient abnormalities to mean it would be “seriously handicapped.” This enables terminations to take place at any time on grounds of disability. Three people with, or with children with, Down’s Syndrome believe the law is unfair discrimination against disability.

This is an interesting point. Without wishing to go into details of the specific case, it does raise the issue of when life should be preserved and where boundaries might lie. For some, this would be seen as absolute and there are two versions of that, proving highly controversial in the United States but less so in this country; either the mother has an absolute right to an abortion on the basis she must carry the child to term in her own body and care for it thereafter, and the fœtus thereby invades her autonomy as a human being, or the child has an absolute right to life because it is an autonomous human being.

Although held by some, these absolutist positions are less popular in this country, possibly because people are more aware of the problems surrounding them. It is clear to most people that it is the purpose of law to protect the weak, and there is none so weak as an inarticulate baby, especially one who has yet to become visible to the world at large. To accord a pregnant mother absolute autonomy over a vulnerable infant would be unacceptable to many. Equally, the absolute “Pro-life” position faces the question of exactly when life begins. The two obvious answers, at birth or conception, fail to stand up well to detailed scrutiny. Many premature babies can survive, some with and some without medical intervention. How much and how likely such a baby is to need an incubator will largely depend on how premature it is. Indeed, I have just revealed an unconscious terminological aspect of this doubt – until they are a few months old, babies are the only people who might be referred to in the neutral gender, normally reserved in English for inanimate objects. This is not just a linguistic quirk. It reflects the development in the expression of personhood very young children exhibit that people feel comfortable doing this for the first few months of life.

Clearly, a fœtus within a few weeks of birth is capable of being a fully-functional separate organism, distinguishable from the baby after birth only by the fact that event has yet to occur.

At the other end of gestation, we have another apparently defining moment, when the nuclei fuse to produce a new diploid human cell which will become the ancestor of every cell in the future person. Surely, it might seem, that is the beginning of the new life. It is certainly a defining moment, but not necessarily of an independent autonomous human being. Rather than a person, it is a zygote, and it has all the potential of a zygote. It might implant in the uterus wall and become a placenta and embryo. It might fail to implant and be lost into obscurity. It might break up and be lost, or it might break up and one or more of the pieces embed to form placentae and embryos. Hence we get identical twins and triplets, each one an independent human being with a separate existence. So when did their lives begin?

Much of life is not defined by clear boundaries but gradual transitions. Growth is a gradual process and deciding when a person is ready to take on a particular rôle is often somewhat arbitrary. The law defines a person as adult when their eighteenth birthday begins, but they are not noticeably different a second after midnight from a second before. Most older people would think the eighteen year old still has much maturing to do before they might be trusted with responsible positions. The boundary they have crossed is just an artificial one because the law needs clarity where nature isn’t clear. The same is true of a fœtus of 24 weeks. It is the way lawyers handle transitions by drawing arbitrary lines.

In the same way it is difficult to take an absolutist position over disability. At what point does a disbling condition become, in the words of the law, “serious?” Is it where the person is incapable of attaining a certain educational or athletic standard? Is it when the person cannot walk or cannot talk, when they cannot move or cannot sense what happens around them? At what point might the law reasonably say to a prospective mother, “What you are about to take on is too difficult, too onerous for the reward you and your child would receive from the effort?”

At one end of the extreme I can imagine a child who lies in some sort of sling, showing no sign of awareness of anything other than pain or other acute distress, or perhaps not even conscious. That child will be for its whole life entirely dependent on parental support for maintaining basic bodily functions and these functions are themselves the only sign of life. The parents must grow old serving the physical needs of a child who will never know or acknowledge their effort, unable to fulfil their own potential, in order to care for another who has no real potential to fulfil. Maybe, it could be argued, such a life would be better prevented than imposed on the three people involved. There is, at least, a question to answer.

On the other hand, I am short-sighted. That is a minor defect which is easily corrected by glasses. There are countless small defects many of us have. How big does a defect have to be to be considered a disability, and how major need a disability become before it is considered “serious?” I suspect that is where the real problem lies. Should a woman be able to terminate even a viable baby if she feels it is imperfect in some way she doesn’t like, or does the difference have to be so great the child will have an extremely poor quality of life? At present, perhaps, the interpretation of “serious” is insufficiently serious and includes many conditions which, while limiting people’s achievements, will not stop them enjoying themselves.

It is possible that the unfair discrimination is not so much in the law, as in the way facts are interpreted to fit the law, and what is really needed is clarity about how serious a disability needs to be before the exception in the law comes into operation.