Is there a case for eugenic abortion?
Chiara ABBASCIANO , Megan ALEXANDER, Julia BURKHALTER, Carolina Raquél MELCHES
Italy’s Supreme Court, August 2017. The parents of a child, M., who was born without his left hand, claim compensation for damages from the medical centre that, during the 21st week of pregnancy, performed morphological investigations on the foetus and failed to identify his deformity. In Italy, abortion is permitted after the first 90 days of pregnancy in only two cases: first, if the pregnancy or the childbirth carries a serious health risk for the mother, and second, if certain pathologies are diagnosed, including relevant anomalies or malformations of the foetus, that can provoke serious risks to the mother’s mental and physical health. M.’s parents alleged that the damage they suffered was not simply linked to the child’s health, but also constituted “existential and economic damage” that they would have avoided if they had been aware of the child’s deformity and had had the possibility to abort. The Court rejected their claim. Indeed, it held that the absence of a hand is not a sufficiently significant anomaly or malformation to be of detriment to the mother’s mental and physical health. With this sentence, the Italian Court has reiterated that in Italy abortion is admissible after the first 90 days of pregnancy only in the presence of serious disabilities of the foetus that will pose a serious risk to the mother’s health. This means that a foetus’s right to life is only compromised when the pregnancy place the mother’s health in jeopardy, and not when the health of the foetus itself is in jeopardy. In other words, no room is given for “eugenic abortion”.
The term “eugenics” derives from the Greek εὖ, “well, lucky” and γένος, “born, race”. It defines those practices aimed at the “improvement” of inborn qualities of human beings (Galton, 1904). Hence, the choice of aborting a foetus on the basis of some characteristics deemed as less desirable than others, such as, in our case, a physical malformation, constitutes “eugenic abortion”.
1.1 A brief look at prenatal screening
Prenatal testing, which consists of both genetic screening and foetal imaging, took off in the early 1970s. Initially made available almost exclusively to “at risk” women, that is to say those over the age of 35, today prenatal diagnostics form an integral, if optional, part of the vast majority of pregnancies. Ultrasounds can detect physical abnormalities, such as spina bifida, while blood tests can help to identify inherited disorders such as sickle cell anaemia, and, much more recently, to identify chromosomal abnormalities such as Down Syndrome. Prior to DNA testing, chromosomal abnormalities could only be identified using far more invasive procedures, namely amniocentesis and chorionic villus sampling (CVS). Despite the existence of alternatives, many continue to opt for these more invasive tests due to the greater accuracy of the results they yield. Accuracy comes at a price, however, as the risk of miscarriage and the possibility of a “false positive” test result in the case of both amniocentesis and CVS are not negligible. The detection rate for Down syndrome via amniocentesis, for example, is 83%, with a false positive rate of 5% (Press 2008).
It is unclear how many pregnancies are terminated annually following prenatal testing, and rates naturally differ from country to country in accordance with national regulation, and varying personal, cultural and religious beliefs. In the US, the rate of termination for Down syndrome is estimated at 67%, compared to approximately 77% in France and nearly 100% in Iceland (Healthline 2017). Termination rates also inevitably vary according to the severity of the mental or physical disability with which an unborn child is thought to be afflicted. Typically, the less severe the disability, the more controversial the decision to abort. Where, though, do we draw the line? Using the above-cited lawsuit in Italy as a base, we choose to examine in this paper the ethical issues surrounding abortion from both a deontological and a utilitarian perspective, and consider the extent to which parents, especially in the case of a minor disability, should have the right to decide the fate of their unborn child.
2. Definition: Conceptions of disability
The Italian court’s ruling that abortion is only permitted after the 90th day in case of relevant anomalies or malformations of the foetus raises the question of when it is just to abort a disabled baby and along which lines we can differentiate between minor and major disabilities.
Due to the diverse nature of disabilities, it is difficult to find one commonly accepted terminology and encompassing definition (Martin & Elliot 1992). According to the ICF (International Classification of Functioning, Disability and Health), the relevant characteristics that contribute to the definition of disability are (1) bodily functions and structure, (2) additional information on severity and environmental factors and (3) activities and participation (Disabled World 2017). With regards to severity, the official classification distinguishes between (1) Handicap, (2) Disability and (3) Impairment, in ascending order of gravity (WHO 1980). The manifestation of these characteristics strongly influences the ability of people to live an autonomous existence.
Yet, a more sociological conceptualisation of disability is required in order for us to evaluate whether or not society’s actions towards disabled people are justified. Adopting from classical disability studies, disabilities can be conceptualized along the two following lines of thought: social vs. medical models of disability (Gill 1987).
The medical model adopts a rather individualist view of disability and evaluates any limitations in participating in our society as an impairment brought about by the individual. It follows, that the burden of not being able to fully participate in society should be carried by the affected person. Any efforts to ease participation are welcome, but the absence of them is not necessarily a failing of society. People with impairments should rather make the “extra effort”, as their impairments are “negative” and an “abnormality” from a healthy body (Gill 1987).
The social model stands in sharp contrast to the medical one and sets out a more inclusive stance towards disability. In this vein, the malformation or cognitive impairment as such does not constitute the disability itself, it is the lack of adaptation that disables the person. From a societal point of view, this approach is more inclusive as it further emphasized that is not the society which decides what needs to be provided to guarantee full participation, but the individual who knows best what is he or she needs to feel as an equal member (Equalities Unit 2017).
The implications as to the evaluation of major and minor disabilities is fundamentally different depending on the approach taken. The medical approach would set out that the moment that a person is not capable of living an autonomous life anymore would constitute a major disability and a burden for society. The medical approach would set out that the moment a person is not capable to living an autonomous life would constitute a major disability. The social model does not make such a differentiation as it just looks for necessary counter-measures for individual conditions.
3. The Trial
While the above differentiation between minor and major disabilities leaves room for interpretation according to its own set of values and can itself be extended to an ethical discourse, we will focus predominantly on the discussion on whether or not disability constitutes a legitimate reason to abort.
To more closely analyse the case for or against eugenic abortion, we will “bring ethics before the Court” and re-imagine the Italian trial.
Video sources (1) and (2)
Defence lawyer representing the Medical Centre:
I will ground all my argument in deontology, an important strand of normative ethics, which sees morality as the adherence to a certain number of absolute rules. In this view, actions must be performed in accordance with those rules, regardless the consequences. From the perspective of the baby, the inherent rule is its right to life. The right to life is an inherent characteristic of human existence and consequently no one can legitimately end this life. While this right has a religious dimension as the right to life is often derived from the belief that humans are divine creations, it is nevertheless a broadly accepted principle (Stefan 2014: 932). In the Kantian tradition, a tool used to determine whether an abortion would be permissible, is the universalizability test. It asks whether any person would be opposed to his or her own abortion. Given that assumably no one would agree to abort himself/herself, makes it impermissible (Gensler 1968: 89).
As the future of a child is an end in itself, the possibility to legitimately prevent the right of M. to a future is limited. In the case of disability, the child will not lose this fundamental right due to costs or burdens imposed on its surroundings. The degree of disability is therefore not a concern as disabilities do not constitute a legitimate reason to abort. Within deontological ethics there is no room for legitimising eugenic abortions. An exception could be seen in cases where the child appears to have limited prospects as it is not expected to survive birth. This is why we can’t deny that M. certainly had a future ahead of it and, thus, it cannot be morally justifiable to limit his right to life! The Medical Center therefore denies all claims for compensation by the opposing party, as the parents had no right to end the life of M. through an eugenic abortion.
Attorney representing M.’s parents:
I totally disagree with what has been said. It makes no sense to posit that a foetus has the same right to life as a person does. A fundamental lesson of consequentialism is that we need to reject the doctrine of the sanctity of human life and acknowledge that the mere fact of belonging to the human species does not make a case for considering killing as morally unjustifiable. The Court should recall Peter Singer’s (2011) claims that non-conscious beings such as a foetus cannot have an interest in pursuing a life. Therefore, killing such beings does not imply any violation of an interest that deserves equal consideration (ibid.). This is true not only for the embryo and the foetus, but even for the infant, who, he claims, does not have any intrinsic claim to life because he is incapable of conceiving himself as a distinct entity existing over time (ibid.). Hence the cut-off line set after 90 days by the Italian law appears as purely arbitrary and not morally relevant in determining whether an abortion is legitimate or not. The questions of whether the child’s right to life can be limited should be dismissed because no right to life should recognised to the foetus not before nor after 90th days of pregnancy!
Of course, I acknowledge the need to set strict limitations concerning the killing of a foetus. However, we must make clear that ethical considerations should not revolve around the intrinsic wrongness of taking life, but only the consequences of this act on others are considered as morally relevant. Therefore, we have to consider who are the people most affected by the decision of abortion, and whether the consequences on these people differ depending on the degree of disability of the foetus.
I argue that the parents of M. are the only and most affected by the decision of aborting the baby because of his malformation. Now, I shall briefly assess whether his degree of disability matters or not. Consequentialism recognises to each sentient being an interest not to suffer. My claim is that whether a son’s disability provokes an excessive and unbearable level of suffering to his parents depends on the personal sensitivity of the parents. The Court may agree on the fact that the level of sensitivity changes from one person to another and does not depend on the degree or on the kind of of disability. My clients allege to have suffered an “existential damage” because of their child’s disability. Hence, even a minor disability violates their interest not to suffer. By contrast, as already discussed, the foetus does not have any interest that deserves to be protected. The only interest at stake is that of my clients. As a utilitarian, I affirm that the abortion of a child is morally justified even in the case of a minor disability.
Defence lawyer representing the Medical Centre:
I restate that abortion is not morally permissible. This is true regardless of the effects of the pregnancy on the woman or the parents as the right to live is fundamental. Lara Denis (2008: 119) however argues that one should not disregard the woman’s right. This certainly includes the right to life and would make an abortion permissible if the pregnancy endangers the mother’s life. Hence, the reasons to limit M.’s right to life seem not sufficient unless the economic impacts would prevent the parents from living a life in dignity and threaten their existence. Given the welfare institutions in Western countries including Italy, the Court should agree on the fact that this scenario appears to be rather unlikely and an abortion thus morally not permissible. Only permissible reason for an abortion would thus be the violation of an equal right of the mother compared to taking away the right to live from the child. This leaves no room for eugenic abortions and leads us to consider the abortion of M. as morally condemnable.
A civil society representative
Video Source (3)
I implore you to consider the repercussions that a ruling in favour of abortion might have on the society in which the live, and the message it sends to our citizens. As prenatal diagnosis becomes increasingly effective and abortion more widely accepted, the pressure to “select” against a child when a disability, or even the possibility of one, is detected is certainly mounting. As Bob Edwards, the scientist to produce the first successful in-vitro baby, suggests; ‘soon it will be a sin of parents to have a child that carries the heavy burden of [disability]’ (US News). From a consequentialist standpoint at least, it is important to consider the impact of a pregnancy (or abortion) not just on the couple involved but also on the society as a whole. The social and medical repercussions of the scenario Edwards describes are far-reaching. First, regardless of how well-intentioned we are, the practicing of abortion signals to people currently living with mental and physical impairments that the society in which they live largely believes that they should not exist. Eugenic abortion deals with neither the pathos of an unwelcome or unplanned pregnancy, nor the personal matter of being free to choose what to do with one’s own body. Instead it is a deliberate search for those deemed unfit for life, and can be seen to severely devalue the lives of disabled people in the world to day. In fact, the disabled community often cite not their disabilities themselves but the discrimination they face as a result of their disabilities as their greatest burden in life. This stigma is set to worsen if, even in circumstances of minor disability such as the Italian case, parents are increasingly keen to abort.
As the practice of abortion becomes more widespread, we risk not only alienating the disabled community but also reducing our ability to be of assistance to them in a medical capacity. Organisations around the world have dedicated huge amounts of time and expertise to developing and implementing tailored medical and educational programmes for disabled people. As the disabled community inevitably decreases in numbers, however, the impetus of governments to continue to fund research into the root causes of mental and physical disabilities may be significantly reduced. This would rightly be cause for concern for the diminished numbers of parents who, for religious or personal reasons, choose to follow through with a pregnancy despite a positive prenatal diagnosis. If termination rates continue to rise and the prevalence of disabilities consequently continues to fall, we will arguably end up in a world in which just about nowhere being able to provide the personalised care that disabled people so often require.
Though this argumentation perhaps best applies to situations in which a foetus suffers from a major disability, and not cases in which a foetus is found to be missing a hand, boundaries are constantly shifting. What I am suggesting is that what is considered to be a minor disability today might come to be labelled a major disability in the future as the prevalence of eugenic abortion increases, making the major disabilities of our lifetime a thing of the past.
Video Source (5)
The value of a foetus and its inherent right to life vary significantly according to the moral standpoint taken with regards to abortion. Opinions diverge even further when that foetus is diagnosed as having a mental or physical disability. From a consequentialist perspective, the foetus possesses a lesser right to life than an adult person. Consequentialists will therefore consider the extent to which the wellbeing- mental, physical and/or economical- of the expecting parents might be affected by bringing a child with a disability into the world, and also what the repercussions might be for the society as a whole. The deontological perspective is somewhat more straightforward, contending that taking the life of another being is wrong- with very few exceptions (Denis 2008)- and therefore that the degree of a foetus’s disability is irrelevant when making a case for abortion.
Italian regulation, therefore, appears to be slightly more of the deontological persuasion in that abortion is permissible when a pregnancy is likely to have a negative impact on the health and wellbeing of the expecting mother, but not when the health and wellbeing of the child itself is compromised due to a mental or physical disability. Eugenic abortions are permitted elsewhere however, and, as they increase in prevalence, we must be conscious of the potential consequences of this- namely, the message it sends to the disabled community. As eugenic technologies become increasingly effective and accessible, debate will likely no longer concern whether or not it is ethical to terminate a pregnancy on the basis of foetal “abnormalities” but instead whether it is ethical for people to design their own babies- well before the mother has even been impregnated. The worrying difference here is that while in the case of abortion, regulation certainly exists, artificial genetic modification is largely uncharted territory.
Video Source (3)
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 Cass. civ., sez. III, 11 aprile 2017, n. 9251; Spirito Presidente — Scarano Relatore. Available at: http://www.studiofronzonidemattia.it/wp-content/uploads/2017/04/Cassazione-civile-11-aprile-2017-n.-9251.pdf
 Approved on May 22, 2001, by the World Health Assembly but first created in 1980.