Disability, fetuses and discrimination

By Pablo de Lora

Is “eugenic abortion” better described as discrimination against the disabled? That is one of the hottest issues currently debated in Spain (yes, we sometimes have some spare time to avoid discussing our financial crisis), now that the conservative party is attempting to amend our latest legislation on abortion (2010).

Down España, among many other advocacy groups for the disabled, is encouraging the Spanish Government to enforce the Convention on the Rights of Persons With Disabilities (2006) which states (article 10) that “every human being has the inherent right to life” and that States “shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others”. In support of their position, these groups refer to the recent Recommendations made by the Committee on the Rights of Persons with Disabilities as regards to the Report submitted by Spain (Sixth Session, 19-23 September 2011). It is worth quoting the Committee’s own phrasing: “[it is recommended] that the State Party [Spain] abolish the distinction made in Act 2/2010 in the period allowed under law within which a pregnancy can be terminated based solely on disability” (the full text can be found here).

Interestingly enough, in the United States, far from relying on the Convention to fuel their cause, some pro-life groups despise it as a pro-choice instrument and are urging their representatives not to ratify it (see here and here).

Very broadly, since 2010, a woman in Spain may abort in the first 14 weeks of pregnancy (with the requirement of receiving advice and waiting for three days to mature her decision). Beyond that term, and up to week 22, terminating a pregnancy is legally permitted either if the mother’s life or health is at serious risk or the fetus has been diagnosed with some “anomaly”. When the disease is life-threatening (think, for instance, anencephalic fetuses or the fatal condition known as “bilateral renal agenesis”) or extremely severe and incurable, the abortion might be performed even after the 22 weeks threshold. So, as opposed to a “normal fetus”, a “disabled fetus” – so to speak – is not given the same opportunity to be safe after 14 weeks of gestation. Is that a form of morally impermissible discrimination? I think not.

Down España is not taking a broadly anti-abortion tact on the grounds that the rights of the helpless must be defended across the board.  Instead, it is taking issue with only certain types of abortions for certain types of reasons, and the different term for the so-called eugenic abortion: had the Spanish legislator established the exact same term for either type of abortion, or extends the current 14 weeks period to catch up the 22 weeks of the eugenic indication, there will be no quarrel.

Consider again the Spanish Act. Suppose it allowed all pregnant women in Spain to abort until week 14, with the exception of blue-eyed fetuses who might be aborted until week 20. And suppose further that the color of the eyes were a detectable condition since the very first moment of pregnancy. I think we would all agree on the arbitrariness and discriminatory flavor of the rule. But the law we have in actuality is neither arbitrary nor unacceptably discriminatory because it applies to things like Down Syndrome and similar disabilities, which bear two important qualities:

a)   They are not detectable at early stages of pregnancy and

b)   They represent an objective burden for the family or for the individual to be born.

In those circumstances we are justified in not treating cases alike for the very simple reason that we are not dealing with like cases. So yes, this is “discrimination” in the sense of differential treatment, but it is not improper discrimination.  And of course I acknowledge that more conceptual work needs to be done in order to avoid a repugnant conclusion: with the above characterization, womanhood (or homosexuality) might be categorized similarly, at least in some parts of the world.


0 thoughts to “Disability, fetuses and discrimination”

  1. Fascinating post about Spain Pablo. In the U.S. Pro-Choice groups have consistently opposed legislation to criminalize only sex-selective abortions, in part because they fear a slippery slope to further restrictions.

    I was intrigued by the way you phrased the conditions making this non-discriminatory
    “a) They are not detectable at early stages of pregnancy and

    b) They represent an objective burden for the family or for the individual to be born.”

    Do you mean them to be jointly necessary? What if something was very burdensome but detectable early on, and yet the family had a change of heart or of circumstances now making it harder for them to maintain the childrearing?

    Also, imagine the state was willing to take on the children as ward and/or there were parents willing to adopt them? Would that eliminate cases in condition “b”? I suppose you still have objective burden “for the individual to be born,” but except in cases of lives not worth living I wonder if that is enough.

    I also wonder whether if burden to the individual to be born justifies permitting late abortions, whether they ought not to justify MANDATORY abortion, on the theory that it is an act of harm prevention. So the line between prerogative and duty here is quite interesting.

    1. Thanks Glenn, poignant remarks, as always. Here is how I see things.
      When abortion laws – as is very often the case- establish a 12 o 14 week term in which the woman is sovereign (following Roe) it is accepted that women abort for any reason (including immoral ones). Beyond that, there should be very stringent reasons to sacrifice was is conceived as something with some “moral status”. But, as is the case with “burdensome conditions”, those reasons can only show up later the distinction seems reasonable because is based on an objective factor.
      I do think, however, that, as you suggested, two very different questions should be distinguished when discussing abortion: a) do I have the duty to sacrifice my corporal integrity for the sake of saving other’s lives? b) do I have the right to kill the fetus even when someone else, as you said, can take care of him. My answer to a) is yes, my answer to b) is no (I do think that viability is the morally relevant threshold)
      And last but not least, I do think it is a moral wrong to give birth to someone who is going to live miserably. If, suppose, we have a frozen embryo which is later diagnosed with Tay-Sachs disease, implanting it, making it develop in utero and delivering the baby is wicked. So, legally speaking, those implantations ought to be forbidden – they should not be covered by any alleged “freedom to procreate” and we somehow should legally disincentive the woman who, knowingly, proceeds with the pregnancy and gives birth.

  2. You are assuming being disabled by Downs or disabled in anyway makes one’s life miserable. Having been born with cerebral palsy, having developed epilepsy and knowing many people with mental and/or physical disabilities of all sorts for 54 years, allow me to strongly object.

    I live happily enough and have a 59-year-old cousin with the IQ of a five-year-old and have many dear friends born disabled or disabled later on. It is clear to me you do not.

    Most of us are as happy as anyone else. We have families that love us. My parents never viewed me as a burden. Most parents with kids would reject that idea you hold.

    Yours is not an argument based on facts at all but on bias and ignorance!

  3. Sorry Mr. Rundler that I missed your comment. I hope this reply is not too untimely. Yes, to the extent that I grant women’s right to freely build their life-plans, yes, I assume that being the mother of a child with severe disabilities is burdensome enough not to punish her abortion. But I also deem praiseworthy the decision to continue a pregnancy of a fetus diagnosed with some severe disability and give birth if, as it is sometimes the case, the future life of the child is not miserable.

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