pp. 51-55 in Bioethics in Asia

Editors: Norio Fujiki and Darryl R. J. Macer, Ph.D.
Eubios Ethics Institute

Copyright 2000, Eubios Ethics Institute All commercial rights reserved. This publication may be reproduced for limited educational or academic use, however please enquire with the author.

1.6. Bioethics and New European Abortion Legislation

Nenad Hlaca.

Law School University of Rijeka, Hahli_ 6, HR - 51000 Rijeka, Croatia

In the context of the abortion bioethics can be treated in a multidisciplinary methodological approach. In the first step there is a descriptive bioethics, but in the final step, in there is a category of human rights that is part of prescriptive bioethics (Macer, p.672). Development of the categories is evident on the European level: the future of bioethics is determined by the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, Convention on Human Rights and Biomedicine of 1996. The definition of the right to abort is very problematic because it is antithetical to the concept of life as a basic anthropological value. In ancient societies, the basic value system was protected with severe sanctions which contributed to the development of the human community. The best example is the incest taboo as a presumption of the basic familial and social structures. Over the centuries, family behavior and ideas about marriage and family life have undergone constant fluctuations without never exactly corresponding to the set of official norms (Glendon, 4). Any dichotomy between social and legal institutions was traditionally resolved through the important role of religion. In Israel and Islamic countries personal status is still decided by religious or customary tribunals. In the European context we have passed along the road from custom to law. Legal norms are used for social control even in such psychologically very delicate personal dilemmas as abortion. In Europe, we were faced with the predominant role of the Roman Catholic Church which was trying to take absolute control and to submit personal status to ecclesiastical jurisdiction. It seems that the situation before the Council of Trent and the Tridentine Marriage Law of 1563 was quite liberal and severe sanctions were dedicated to the enforcement of morality. Since the beginning of Christianity voluntary abortion was treated as a serious crime. But it is tragic that the importance of marriage was protected by the severe social stigmatization of children born out of wedlock. Sexual relations were strictly reserved for the aim of the procreation as basic function of marriage. In some European countries, children born out of the wedlock had no rights even through the second part of this century. It is important to stress that some humanity survived even during that time. In the middle ages, Dubrovnik was an independent republic and already in 1434 the foundling's home Ospedale della misericordia was established with the aim to provide care for abandoned children. The need to have such a home was mentioned in the decision of the Minor Council of Dubrovnik passed in 1432 which says that "...it is disgusting, disgraceful and inhuman to throw little human creatures about the town as if they were animals... in order to preserve our city from every evil, and further improve it, the little creatures will receive help and protection by the founding of a Hospitium which will take them in and feed them" (P. Novak, 78). This is a clear example of so called modern welfare state approach: protection of all the human beings, protection of human life without distinction as to the social structures from which they are conceived and born. Abortion should be treated as a rare exception. Adoptions and other measures of social welfare should be widely promoted as supplements for the cases of the unwanted pregnancies.

In the European context we are faced with the negative demographic trends in social welfare states such as Sweden and France which for decades have supported decisions relating to birth or abortion. On the international level abortion is a delicate problem because of moral relativism. The problem is, how to reconcile the basic concept of the universality of human rights, which is the cornerstone of international human rights laws, and discriminatory cultural relativism and religious traditions, which are obstacles to the implementation of international human rights standards in domestic laws. Soviet Union in 1955 started with liberalization of the abortion law, and the other Eastern European countries followed their lead. The only one exception in the former Eastern Europe was Romania whose dictatorial regime in 1966 introduced "forced pregnancies" including prohibition of contraceptives and abortions. In 1967 Great Britain was the first in the west to legalize abortion. Since then, almost all European countries, in different ways, have legalized abortion. "Three Western European countries did not change their legislation after World War II, namely Switzerland, Belgium and Ireland ,including Northern Ireland" (Ketting, Stichting, 2). Belgium is an absolute anomaly in Europe with a more than 120 years old restrictive legislation.

In Europe at present the lowest rates of abortions are in the Netherlands and Sweden where the law is most permissive and in Ireland where abortion is constitutionally forbidden. In a referendum held in 1992 in Ireland, some amendments to the Constitution were adopted: the Thirteenth amendment, which concerned the right to travel freely in order to obtain abortion services lawfully available in another state. It still remains a criminal offense to procure an abortion in Ireland, the exception being in the case of a real and substantial risk to the life of the mother including the risk of the mother taking her own life (Ward, 385-407). It is interesting to compare this situation with that in a traditionally Catholic European state such as Italy. It seems that the enormous influence of the Communist party in the seventies led to the adoption of new social values concerning divorce and abortion. After considerable deliberation, the Italian Government passed the Law on the Social Protection of Motherhood and the Voluntary Termination of Pregnancy on 22 May 1978. In May 1981, the Italian people voting in a referendum, rejected both radical and Catholic proposals. Under the bill, a woman could decide to terminate her pregnancy within the first 90 days, should there exist indications of serious danger to her physical or mental well-being. Such reasons include not only her health, but also economic, social and family reasons (Bognetti, 83-94).

The situation was different in the former Communist European countries belonging to the Eastern Block. The right to seek for an abortion was based on the human right to freely decide on childbirth as proclaimed at the Teheran Conference in 1968. The Constitution of the former Yugoslavia in 1974 established the human right to freely decide on childbirth. In Croatia the Act based on that constitutional principle is still in force (Alin_i_, 155). During the first ten weeks there are no obstacles for the abortion. Abortion is treated as a medical intervention which depends on the personal woman's choice. In the practice of so liberalistic law in Croatia, in 1985, was 51,531 legal abortion compared to 62,665 live births (Croatian statistical report, Croatian Institute for Public Health). Recent negative demographic trends in the Republic of Croatia caused panic in some conservative political structures supported by the Roman Catholic Church. The positive abortion law in Croatia was criticized and many populist pro-life campaigns started. The recent legislative trend in Croatia can be seen in the draft of the new abortion act: the abortion will be allowed until the tenth week of pregnancy on the request of the pregnant women in the authorized public hospitals and with obligatory counseling before the final decision. The draft prescribes that the costs will no longer be covered by the national health security system. Similar trends were noticed in the post communist Hungary. The hitherto liberal abortion law was made more strict in order to protect the fetus. Hungarian law from 1992 is a compromise between the restrictive and liberal views on the abortion. The basic principle is that prenatal life enjoys respect and protection from the moment of conception and abortion cannot be considered as a contraceptive method. Family planning is recognized as a parental right which involves the duty to protect the life of the fetus (Sandor, 24-25).In Bulgaria abortion has been accepted as an effective instrument of family planning: "Abortions are suitable and safe for the majority of women who already have their desired number of children. In comparison with Western European countries where it is young, unmarried women with no children who have abortions, in Bulgaria, as in Hungary and Czechoslovakia, patients having abortions are mostly married, having one, two or more children - in other words they have fulfilled their reproductive plans" (Vassilev, 11). The tragic fact that abortion was a method of family planning was common to all the former communist states. Family planning was neglected for decades. Contraceptives were lacking. The conclusion is that it is time for radical reforms in the whole structure of society in this period of transition toward western-style democracies.

Table 1 and Figure 1 to stick

The problem of western-style abortion was recently discussed in the context of forced pregnancy as a serious violation of the right to reproductive choice. Forced pregnancy through rape during armed conflicts is treated as a war crime (UN doc.E/CN.4/1994/5). Rape as seen in the wars in former Yugoslavia and Rwanda is expressly considered as a contravention of international humanitarian law and in certain circumstances a crime against humanity (Packer, 150). At the same time during the war there were serious examples of the male sexual abuses. During the war in former Yugoslavia, Bosnian women made pregnant by rape arrived as refugees. Twenty complete medical records concerning sexual abuse exist in hospitals in Croatia (Government of Croatia, Zagreb 15 January 1993: "Comprehensive Program for Protection and Help to Victims of Torture"). It was tragic that rape was used as a method of ethnic cleansing. The problem of abortion for sexually abused women who were at that time refugees in Croatia was resolved in accordance with Croatian law. Sexually abused women usually reached Croatia as refugees too late when abortion was no longer medically acceptable. Adoption was a solution for these unwanted pregnancies. The obstacle was that the babies born in Croatia were citizens of Bosnia and Herzegovina, internationally-recognized states, so it was not possible to apply the Croatian Marriage and Family Relations Act (Hla_a, 27).

In 1990 the former East Germany, with its liberal abortion law, refused to accept the imposition of the much more restrictive law of West Germany. A new Abortion Law appeared finally in Germany five years after unification. The Bundestag passed the law in July 1995 which makes abortion unlawful in the first 12 weeks, but unpunishable if the woman first received independent counseling. There is no time limit in the case of medical indications (Zupan_i_, 437-443). The new restrictive Polish law of 1993 on family planning, protection of the fetus and conditions permitting interruption of pregnancy, was known as an 'anti-abortion law' and gathered enormous public attention. With the changes in the political arena, and the new government of reformed communists, the law was rejected by referendum in 1996 (Zielinska, 23, Stojanowska,472). On the European level, the Commission of Human Rights refused to accept abortion as a human right under the Convention. With this decision, the Commission recognized the different political traditions and ethical judgments concerning abortion and the rights of the unborn. "Effective enforcement of human rights on the international level requires a commonality of values and shared ideals. With respect to this, no such consensus exists at present time" (Rust Bulfinch, 4).

How can one explain the trend toward more restrictive laws in the former communist countries? In Eastern Europe after the Second World War legal systems based on artificial and secular ethical values completely opposite to the traditional moral and religious standards were established. But it seems that enforced implementation of those standards led to a change in the previous ethical values. The same trend was noted in the traditionally Catholic states such as Italy. The recent situation in prescriptive bioethics and laws related to the right to abortion is an example of balancing between woman's personal, societal and familial interests and the new legal status of the fetus. Historical and comparative study of the legal status of the fetus leads to the conclusion that the status is a matter of a social convention adequate to the needs of the human community. Anthropological sources indicate that moral and religious categories initially determined the so-called legal status of the fetus. Numerous examples confirm that legal status of the person was not recognized even for children up to some formal act or age. The legal status of the fetus and rights of the fetus began to be discussed in highly developed countries with negative demographic trends. During pregnancy the fetus is not completely independent legal subject. The fetus is a legal person in the process of development, the person whose welfare and rights are protected under the presumption that it will be born alive. In the discussions about the legal status of the fetus, the child's right to be wanted is stressed as a primary right of highest importance for the proper development of the child's personality. The convention on the Rights of the Child (UN 1989) proclaimed that the party states have agreed that for the purpose of the Convention a child means every human being below the age of eighteen, unless under domestic law the majority is attained earlier. The facts in Croatia indicate that morality is in a deep crisis and it is difficult to explain how is possible that in 1985 the 30% of the population that is not Catholic committed 51,531 abortions. The Church is in the urgent need of more severe secular sanctions for the enforcement of religious ethical values. Paradoxically the lowest rate of abortions in Europe is found in the states with the most permissive laws. The examples from Italy, Croatia, Poland and Ireland as dominantly Catholic states indicate that both catholic and non-Catholic women are seeking for abortions. Legal regulations are extremely important but in this era there is also important role for the mass media which articulate public opinion and moral atmosphere surrounding abortion.

From comparative research on the situation in Europe in the field of abortion we can conclude that liberal abortion laws have not caused an increase in the incidence of abortions, especially not in those countries with successful family planning activities. Countries with rather restrictive abortion laws do not have lower abortion rates. Restrictive legislation usually causes undesirable results such as traveling abroad for abortion, the insecurity of doctors and women, illegal abortions and lack of reporting of abortions. Perhaps changes in the philosophical approaches to the value and importance of human lives in this biologically destructive civilization will lead to a consensus on the secular ethical standards at a European level which will be determinate with similar demographic trends. On the global level the situation is far away from a consensus. Until consensus is reached on the values to be used as a cornerstone for the effective enforcement of human rights on the international level, debates and medical tourism will flourish. The situation concerning abortion is a clear example that family behavior and ideas about marriage and procreation have undergone constant fluctuations while never exactly corresponding to the set of official norms.

References

Alin_i_, Mira, Family Planning in Yugoslavia from the Legal Aspect, in: Fertility and Family Planning in Yugoslavia, Beograd, 1980, 155-171.

Bognetti, Giovanni, Italy, Abortion Law and Public Policy, Dennis Campbell ed, Martinus Nijhoff Publishers, 1984, 83-94.

Glendon, Mary Ann, The Transformation of Family Law, State, Law and Family in the United States and Western Europe, The University of Chicago Press, Chicago and London, 1989.

Hla_a, Nenad, Abortion: Croatia and the Bosnian Refugees, Bulletin of Medical Ethics,1993,85,26-27.

Ketting, Evert, Stichting, Rutgers, Induced Abortion in Europe An Overview, Planned Parenthood in Europe18,1989,1, 2-4.

Macer, Darryl, Bioetika u Japani I Aziji, Dru_tvena istra_ivanja, 5,1996,3-4 (23-24), 671-697.

Medical Center for Human Rights affiliated organization of the International Society for Human Rights, Sexual Abusing of Men, The report contains codes of statements of abused men and short quotations from statements, Zagreb 1994.

Novak P., Slobodan, Dubrovnik Revisited, Zagerb, 1987, 78-79.

Rust Bulfinch, Susan, Introduction, in: Abortion Law and Public Policy, Dennis Campbell ed.1984,Martinus Nijhoff Publishers, 3-18.

Sandor, Judit, Abortion: New law in Hungary, Bulletin of Medical Ethics, 85,1993, 24-25.

Stojanowska, Wanda, Poland: the New "Anti Abortion" Law, Annual Survey of Family Law, 17,1993, University of Louisville Journal of Family Law, 33,1994-95,2, 471-475.

Vassilev, Dimiter, Birth Control and Declining Birth Rates: The Bulgarian Experience, Planned Parenthood in Europe,18,1989,2, 9-13.

Ward, Paul, Ireland: Abortion: "X" + "Y" = ?!, Annual Survey of Family Law, 1993,17, University of Louisville Journal of Family Law, 33,1994-95,2, 385-408.

Zielinska, Eleonora, Abortion:New Law in Poland, Bulletin of Medical Ethics, 85,1993,23.

Zupan_i_, Karel, Prekinitev nose_nosti in pravica do _ivljenja, Pravnik,48,1993,9-10, 437-443.


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