The focus of legal concepts has been the attraction of “right”. This has also created anotherfocus by philosophers about i...
to such concepts. Similarly, Mill (1969 [1861] ) have claimed that “when we call anything aperson‟s right, we mean that he...
diversity across member‟s state about these views.6 Over the centuries the taking of humanlife has been strongly condemned...
also play a role and a more standardise scientific evidence.9 Undeniably, one could considerthe foetus as a potential pers...
pill, RU486)12 Although there have been measures put in place to carry out abortion inGermany, there are still some amount...
quickening. However the extent to the gravity of that crime was different at different times inhistory. In the 1800‟s abor...
evidence.17 Also Paul Tully the general secretary of the society for the protection of unbornchildren have argued that dra...
characterised that life as a “legal value” of the utmost importance which should merit stateprotection. By contrast the Ge...
BibliographyBondeson et al, Abortion and the Status of the Fetuse (D. Reidel Publishing: Netherlands 1983Raymond Wack, Jur...
1 Human Rights Education Associates, Right to Life http://www.hrea.org/index.php?doc_id=427 (accessed on10 May 2011)Equali...
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  1. 1. The focus of legal concepts has been the attraction of “right”. This has also created anotherfocus by philosophers about its moral and legal aspect. However for one to talk about rightcould immediately raises a major question as to what right is, and what rights people actuallyhave or should have? These distinctions could create several difficult philosophical problemsif one seeks to understand the nature of right.1This essay however will evaluate what the German and the English Law considers about theright to life with regards to abortion. In doing this the implication of such consideration willbe also analysis with reference to its legal and moral concepts. Robinson (1997) had claimedthat “Abortion can be defined as purposeful interruption of the process of development atwhich ever particular time after conception to birth. In medical terms it can be referred to astermination of a pregnancy before a normal development of a foetus is able to survive on itsown.2Such philosophical issues could be whether there is any conceptual connection between rightsand morals kinds or what sought of right the legal system will create or recognise and so on.If we accept the above to be true, the question one should be asking is whether all legalsystems have the concept of right? For many writers there have been developed ideas thatright should be analysed principally as duty, permission and power or in a more basic notion.This means that not all rights could be regarded as important, because such importance couldvary based on the strength of the grounds for that duty, permission or power. White (1984),disagrees with the above concept of right, claiming that the task is impossible because theconcept of a right is a basic as any of the others, like duty, liberty, power which could beanalysed in to it. On the other hand he agrees that right could in part be analysed by reference1 Raymond Wack, Jurisprudence( 5th edition London: Blackstone press limited 1999.)p2452 Alicemorrison, Advantages and Disadvantages of Abortion, June 29, 2010http://articlesupport.com/2010/06/29/advantages-and-disadvantages-of-abortion/ (accessed on 14 May 2011) 1
  2. 2. to such concepts. Similarly, Mill (1969 [1861] ) have claimed that “when we call anything aperson‟s right, we mean that he has a valid claim on society to protect him in the possessionof it, either by the force of law or by that of education and opinion.” This could meanprotecting the fundamentals human well-being, and the sub set of those things which a personought to have.3 On the contrary if one seeks an explication of „moral right‟, one has to askwhat kind of explication one could be looking for. H.J McCloskey suggests that right issimply as entitlements. This could be a mistake. As some philosophers claim, the way shouldbe open to think that a person having a right can be a reason why others should be morallyobligated to do something.4 Therefore it could be noted that as well as philosophers differabout what rights one could have, so too they differ on what is being said when one is toldthat someone has a right to something. For example, “if we think that A‟s interest in notdrowning is sufficiently important to justify holding others to be under a duty a rescue herwhen she gets into difficulties, and if we think that the same is true of B‟s interest in notdrowning, then we will be faced with a conflict of rights whenever both are in difficulties...”In such a case it could not be so awful from a moral point of view since the means to rescueboth could not be practicable5 As already stated above the focus of this essay could be thequestion about the Right to Life with regards to abortion. Although the Right to Life isabsolute, it does not apply in some situations and in some jurisdiction in Europe, it does notalso include right to take your own life as in England. In previous cases the European court ofHuman Rights has judged that a foetus does not have human rights until when it is born.However, due to different religious tradition and opinion the court has recognised the3 Campbell, Kenneth, "Legal Rights", The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), pp1,2,3Edward N. Zalta (ed.), http://plato.stanford.edu/archives/spr2011/entries/legal-rights/ . (accessed on 8 May 2011)4 Richard B. Brandt, ‘The Concept of a Moral Right and its Function‟ The journal of Philosophy Vol. 80. No1.January 1983 p21 http://www.jstor.org/stable/2026285 (accessed on 8 May 2011)5 Jeremy Waldron, „Right in Conflict‟ Chicago Journals, Ethics Vol.99, No 3 April 1989 p503-6http://www.jstor.org/stable/2380863 (accessed on 8 May 2011) 2
  3. 3. diversity across member‟s state about these views.6 Over the centuries the taking of humanlife has been strongly condemned by most world religions and philosophisers. A number oftreaties have been created by the international human rights law as sacrosanct to protectindividuals from being arbitrarily killed. However the Right to Life as it might look is notinviolable. There are a number of restrictions as already stated to which the internationalhuman rights how will not raise any objection. For example the death penalty which is usedas a punishment for crimes committed in some jurisdiction.7 On the contrary, Aristotle hadwritten that “…when couples have children in excess, let abortion be procured before senseand life have begun; what may or may not be lawfully done in these cases depends on thequestion of life and sensation.” In most jurisdictions in many western histories abortion wasnot criminal if it were carried out before the foetus moved in the womb; until this movementis completed many people have regarded the foetus as part of the matter which could pose nogreater ethical problem if it were removed.8 If one makes such conclusion that morallyabortion is not wrong, does that mean its right to have an abortion? Again if ones unthinkingassumes that the above question is correct then one could also ask oneself what gives a beingthe right to life? Considering such question, can one also raise another question whether afoetus is a human being? Perhaps one can only demonstrate a given answer by considering somany factors. For example what the „pro-life‟ and pro-choice supporters think; religion could6 Equality and Human Rights Commission, Right to Life, Case summaries taken from Human rights, humanlives, Department for Constitutional Affairs, 2006. http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/right-to-life/ (accessed on 9 April 2011)7 Human Rights Education Associates, Right to Life http://www.hrea.org/index.php?doc_id=427 (accessed on10 May 2011)8 Ethics guide BBCNews, Historical attitudes to abortionhttp://www.bbc.co.uk/ethics/abortion/legal/history_1.shtml (accessed on 9 April 2011) 3
  4. 4. also play a role and a more standardise scientific evidence.9 Undeniably, one could considerthe foetus as a potential person on the other hand this does not justify the moral value of thatpotential being at particular moment in its development. However Warren 1985, p.94; andBirtish Control Trust 1994 have argued that a person in a coma or under anaesthetic cannotfeel pain, but that does not eradicate their moral right for them to be killed.10 In Germanyabortion was defined in its criminal code S218 as a felony punishment that carries five yearsimprisonment. This issue became the focus on political agenda in the late nineteenth centuryas socialists, feminists and Liberals try to put birth and population control on their mainpriority. The „Bund group was one of the first to call for the elimination of S218. Althoughmany attempts to reach this goal failed, the Nazi abortion law sharply differentiated betweenworthy and unworthy life, “forbidding abortion on the former but demanding it in the lattercase.”11 In recent time, abortion in Germany can take place on request in certaincircumstances, like to save the life of the woman, preserve physical and mental health, forrape, fatal impairment economic or social reasons and incest. On the other hand these issuescan be only allowed on medical and criminal grounds, and on demand. However this essaywill not go into describing these grounds but what should be noted is that a termination liesentirely with the pregnant woman. Nevertheless consideration can be made with regards toher age whether it is below 18 years, as to whether the parents should decide for her. Shemust also take a gynaecological examination to identify foetal abnormalities and counselling.In addition, since 2008 a non-surgical method has been approved (the prescription of abortion9 Ethics guide BBCNews, Introduction to the abortion debatehttp://www.bbc.co.uk/ethics/abortion/legal/introduction_1.shtml (accessed on 9 April 2011)10 Janet Hadley, „Abortion’ Between Freedom and Necessity,( London: VIRAGO 1996) p.82-8311 (Myra et al, „communication, society and politics.‟ Shaping Abortion Discourse. Democracy and the publicsphere in Germany and the United States, New York: Cambridge University press 2002) pp26-27 4
  5. 5. pill, RU486)12 Although there have been measures put in place to carry out abortion inGermany, there are still some amount of people that still think it‟s not appropriate. Forexample in 1999 the Regional Court in Germany (Landgericht) convicted two applicants ofdefamation to the detriment of a well-known abortionist, Dr. Adreas Feudemann and imposedfine on them. They appealed against the decision claiming that the convictions violated theirright to freedom of expression and the length of proceedings was in breach of the „reasonabletime‟ requirement. The (ECtHR) European Court of Human Rights found that Article 6 wasviolated but dismissed the violation of their “applicants” freedom of expression. “The impacton expression of opinion has on another person‟s personality rights cannot be detached fromthe historical and social context in which statement was made....The impugned statementconstituted a very serious violation of the physician‟s personality right. The court considersthat domestic court struck a fair balance between the competing interests involve.13 UnlikeGermany, the U.K. is different in its policy about abortion .Although there have been somemisperceptions and legal permissibility about abortion in the U.K., many people have takenthis view incorrectly that abortion is prevalent and that the law is very Liberal in caparison toother countries.14 For many years the English Law had considered abortion was a crime after12 German Family Planning, Sex Education and Sexual Counselling and Advice Service, Federal Centre forHealth Education (Bundeszentrale fur gesundheitliche Aufklarung, BZgA) family planning website, Terminationof Pregnancy and Abortion in Germany http://berlin.angloinfo.com/countries/germany/abortion.asp (accessedon 9 April 2011)13 J.C Von Krempach, 2011 J. D European Human Right Court: Germany is allowed to prohibit Comparisonbetween Abortion and the Holocaust, International Law Policy and Institutionhttp://www.turtlebayandbeyond.org/2011/abortion/european-human-rights-court-germany-is-allowed-to-prohibit-comparison-between-abortion-and-the-holocaust/ (accessed on 8 May 2011)14 British Medical Association, (2005) Abortion time limitshttp://www.bma.org.uk/ethics/reproduction_genetics/AbortionTimeLimits.jsp?page=9 (accessed on 9 April2011) 5
  6. 6. quickening. However the extent to the gravity of that crime was different at different times inhistory. In the 1800‟s abortion after quickening was a crime that could lead to death penalty.But after 1837 the significant of quickening was abolished and thus no death penalty. In the1920‟s it could not be considered a crime if it were done to preserve the life of the mother.Nevertheless these changes brought some difficulties in the anti-abortion Laws. What perhapsone might suggest is that the changes were meant to protect women and not to protect the;life of the foetus, for example in the case of R V Bourne, the judge Mr Justice Macnaghtenconcluded that “… if the doctor is of the opinion, on reasonable grounds and with adequateknowledge, that the probable consequence of the continuance of the pregnancy will be tomake the woman a physical or mental wrek, the jury are entitled to take the view that thedoctor…. Operating for the purpose of the mother.15 In retrospect there has been muchcriticism about abortion worldwide. Many are critical about the health risk involved. As timegoes by abortion becomes more traumatic and riskier issue for those interested in it. For pro-choice campaigners, they believe it is harder to defend late abortion then early ones. But anti-abortion campaigners view abortions as misleading the public and believe that suchundertaken are insouciant. Scientists and medical conflict about the dangers of abortion havebeen as argumentative as the political and moral controversy.16 In England abortion is notallowed beyond 24 weeks. However if there is a serious disability involved then it could becarried out up to 39 weeks. Nevertheless a scientist invited to the commons “professor SunnyAnond from the University of Arkansas” to present an evidence said it is very likely thatfoetuses aborted beyond the stage of pregnancy could feel „excruciating pain‟. On the otherhand a conservative M.P and a former nurse disagrees that there is no such based scientific15 Ethics guide BBCNews, see note on 8.16 Janet Hadley, (1996), see note on 10. 6
  7. 7. evidence.17 Also Paul Tully the general secretary of the society for the protection of unbornchildren have argued that drafted guidelines from the Royal College of Obstetrics andGynaecologist‟s recommendation about abortion were very badly drafted. He also added thatthere was a down play of the physical and physiological side effects of abortion. Tully alsonoted that the world best record maternal health is Ireland because of its restricted onabortion, as well as Chile which has the lowest maternal mortality rate.18 Also ProfessorVivette Glover from Queen Charlottes and Chelsea hospital in London says the foetuses over17 weeks old may feel pain and that because of such possibility one “should give the foetusthe benefit of the doubt.” However she agrees that it was possible that foetuses could not feelpain as people do after birth, but “it was unlikely for them to produce the feelings of anxietycommon in people.19 On the other hand one can suggest that German Law view towards therealities of abortion is honest. As stated by Donald P. Kommers, German Law do not pretendthat “the... foetus is not in some sense human life... that all doctors working in abortionclinics have the best interest of their patients at heart... that all women who choose to aborttheir unborn children are doing so because they have made responsible choice against thebackdrop of all available alternatives.” What one should note however is that the courtperformance on the complexity of these views are impressive especially when confronted bya pregnant woman in distress. For example the question in Roe was whether the foetus is aperson? The personhood of the foetus was not the issue in the German court. However thecourt refused to decide, whether the unborn child was a bearer of rights. Thus the Court17 Daniel Martin, (2008) Abortion time limit should be reduced as foetuses feel pain before 24 weeks, MPs toldhttp://www.dailymail.co.uk/health/article-510975/Abortion-time-limit-reduced-foetuses-feel-pain-24-weeks-MPs-told.html (accessed on 8 May 2011)18 EWTNNews,(2011) Criticism heaped on UK draft guidelines promoting abortion as safer than childbirth:http://www.ewtnnews.com/catholic-news/World.php?id=2732#ixzz1MWlkCo7b ( accessed on 13 May 2011)19 Vivette Glover, (2000) Abortion causes foetal pain http://news.bbc.co.uk/1/hi/health/900848.stm (accessedon 14 May 2011) 7
  8. 8. characterised that life as a “legal value” of the utmost importance which should merit stateprotection. By contrast the German constitutional law can be said to have strongcommunitarian orientation, human solidarity, public virtue to liberty and the wholeness of life.For example in the case of BVERFGE 7 at 15-16 (1954) the court held that “The image ofman in the basic law is not that of an isolated sovereign individual; rather…a person‟sdependence on commitment to community, without infringing upon a person‟s individualvalue20 Finally one could suggest that the issues surrounding abortion need to bereformulated. These are due to some major issues being systematically ignored. For many,abortion is like equal pay that people might want and this could be misleading. The right tocontrol one‟s body is a fundamental right of privacy and thus if exercise is a requisite forfunctioning as a person. Perhaps one could therefore say that those who are interested inensuring woman‟s right to bring about safe and early abortion have failed to achieve suchgoal and thus those provided information could be regarded as inaccurate. As Duff explicitlyextended these misgivings, saying, that most women who have spontaneously aborted havebeen left puzzle and angry by the paternalism of physicians who dismiss their loss as “amatter of little consequence.”2120 Donald P.Kommers, The Constitutional Law of Abortion in Germany: Should Americans pay Attention, 10 J.Contempt. Health L. & Poly 1 1994)pp 31,30,29http://heinonline.org/HOL/Page?handle=hein.journals/jchlp10&div=5&g_sent=1&collection=journals (accessedon 14 May 2011)21 Bondeson et al, Abortion and the Status of the Fetuse (D. Reidel Publishing: Netherlands 1983)pp267,266 8
  9. 9. BibliographyBondeson et al, Abortion and the Status of the Fetuse (D. Reidel Publishing: Netherlands 1983Raymond Wack, Jurisprudence( 5th edition London: Blackstone press limited 1999.)Janet Hadley, „Abortion’ Between Freedom and Necessity,( London: VIRAGO 1996)(Myra et al, „communication, society and politics.‟ Shaping Abortion Discourse. Democracy and thepublic sphere in Germany and the United States, (New York: Cambridge University press 2002)Donald P.Kommers, The Constitutional Law of Abortion in Germany: Should Americans pay Attention, 10 J.Contempt. Health L. & Poly 1 1994)pp 31,30,29http://heinonline.org/HOL/Page?handle=hein.journals/jchlp10&div=5&g_sent=1&collection=journals (accessedon 14 May 2011)Vivette Glover, (2000) Abortion causes foetal pain http://news.bbc.co.uk/1/hi/health/900848.stm (accessed on14 May 2011)EWTNNews,(2011) Criticism heaped on UK draft guidelines promoting abortion as safer than childbirth:http://www.ewtnnews.com/catholic-news/World.php?id=2732#ixzz1MWlkCo7b ( accessed on 13 May 2011Daniel Martin, (2008) Abortion time limit should be reduced as foetuses feel pain before 24 weeks, MPs toldhttp://www.dailymail.co.uk/health/article-510975/Abortion-time-limit-reduced-foetuses-feel-pain-24-weeks-MPs-told.html (accessed on 8 May 2011)British Medical Association, (2005) Abortion time limitshttp://www.bma.org.uk/ethics/reproduction_genetics/AbortionTimeLimits.jsp?page=9 (accessed on 9 April2011)J.C Von Krempach, 2011 J. D European Human Right Court: Germany is allowed to prohibit Comparisonbetween Abortion and the Holocaust, International Law Policy and Institutionhttp://www.turtlebayandbeyond.org/2011/abortion/european-human-rights-court-germany-is-allowed-to-prohibit-comparison-between-abortion-and-the-holocaust/ (accessed on 8 May 2011)German Family Planning, Sex Education and Sexual Counselling and Advice Service, Federal Centre for HealthEducation (Bundeszentrale fur gesundheitliche Aufklarung, BZgA) family planning website, Termination ofPregnancy and Abortion in Germany http://berlin.angloinfo.com/countries/germany/abortion.asp (accessed on9 April 2011)Ethics guide BBCNews, Introduction to the abortion debatehttp://www.bbc.co.uk/ethics/abortion/legal/introduction_1.shtml (accessed on 9 April 2011)Ethics guide BBCNews, Historical attitudes to abortionhttp://www.bbc.co.uk/ethics/abortion/legal/history_1.shtml (accessed on 9 April 2011) 9
  10. 10. 1 Human Rights Education Associates, Right to Life http://www.hrea.org/index.php?doc_id=427 (accessed on10 May 2011)Equality and Human Rights Commission, Right to Life, Case summaries taken from Human rights, human lives,Department for Constitutional Affairs, 2006. http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/right-to-life/ (accessed on 9 April 2011) 10

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