Abortion: a new legal perspective

The consequences of recent advances in medical science and biological technology are changing our understanding of personhood, human life and human beings. We refer to the unborn, that is, the embryo, until the end of the second month of pregnancy. After the beginning of the third month, we refer to the unborn as the foetus. Both are at the centre of all recent abortion discussions in the local media.

It’s almost impossible to separate our acknowledgments in the scientific field from our humanistic, moral and religious beliefs.

From an undisputed biological point of view, we know that human beings begin with two single cells: the spermatozoa and the egg, that is, the male and female gametes. These two cells join together during the fertilisation process, at the end of which they form a single cell, called a zygote, which has its own complete set of chromosomes, forming a unique genetic patrimony.

Immediately after, the zygote begins to divide into two, then four, and then eight, and soon it will arrive at a group of cells using a mechanism called mitosis, until it gives origin to a group of cells similar in appearance to grapes, named morula.

Each of these cells is equivalent to the others, so if the cells were separated, they could develop independently.

During the first days and until the second week, the term ‘pre-embryo’ rather than embryo is used, since before nidation we have an entity that is not an embryo yet, namely because it lacks two fundamental characteristics, unity and unicity, that would transform it into an individual.

Because of the absence of these characteristics and because of the reproductive mechanism of the human species in itself, the existence of this creature is very fragile and uncertain, and it is not unusual that pregnancies fail before nidation without the women acknowledging that they were even pregnant.

Due to the flimsy subsistence of these creatures, some laws provide the pre-embryo with a legal treatment that is different and more unprotected than the one established for the embryo.

The main discussion should not be about when human life begins, even though it is almost consensual, at least in biological terms, that it begins when fecundation is completed. Rather, it should be when we recognise in that human life the dignity attributed to each human person and, therefore, grant it human rights that it should be respected.

There is no consensus about the ethical and juridical value of an embryo. On one side of the dispute (pro-choice), we have those sustaining that the status of the embryo should be no different from that of any other human tissue, in other words, mere property, a possible object of any kind of use, only dependent on the owner’s consent. They hold that, to recognise rights and some kind of dignity for a creature, we should demand self-consciousness. This implies that the lives of senile people, people in stages of coma, embryos, and even little infants are not of real value since each one of them lacks an appropriate degree of brain function.

Evidently, in his line of argumentation, abortion should not be prohibited since, at the time it is usually performed, embryos have not yet achieved any consciousness.

On the opposite side, there are those (pro-life) who consider the embryo not only a human life but also a human person, just like the already-born. This perspective forbids any kind of use of the embryo, which is considered an instrumentalisation of the human person, as censured by Kantian philosophy.

Therefore, the embryo ought to be granted the entire list of human rights, just as a human-born person, and its destruction should be qualified as homicide. Similar to this position is the one that, although denying the embryo the qualification of a person, achieves the same result by assuring it absolute protection in the name of ontological solidarity between human beings.

Is there any half-way house between these two extreme views?

The common ground for both views is the denial to the embryo of the respect accorded to actual persons, but the proposal that it deserves more respect than the one accorded to human tissues carries judicial weight for the reason that it has the potential to become a person.

Developing human life is sacred even before it conquers the status of personhood, and it is imperative to consider the objective value of human life from its very beginning, even before the acquisition of rights and interests.

To date, under our Constitution, only persons can be the subject of fundamental rights. In other words, the life of the unborn, though recognised as a constitutional value that deserves juridical protection, is not equal to that of a person since it only becomes one with birth.

So what are we to make of that “juridical protection”?

It follows that the embryo is indeed a human being for the reason that his or her life is human.

While the embryo cannot hold any human rights, this restriction does not mean that it cannot aspire to some kind of protection, which we can designate as “objective protection.”

And certainly, it does not mean that embryos are excluded from human dignity, given that the mere fact of belonging to a human species is enough to extend to them the value and respect inherent in human dignity.

Yet, across the EU, regrettably, such value and respect are nowhere to be seen.