Is the Choice on Termination of Pregnancy Act Guilty of Disability Discrimination?

By Hall, Susan | South African Journal of Philosophy, January 1, 2013 | Go to article overview

Is the Choice on Termination of Pregnancy Act Guilty of Disability Discrimination?


Hall, Susan, South African Journal of Philosophy


Abstract

South Africa's Choice on Termination of Pregnancy Act of 1996 implicitly expresses the attitude that the prenatal detection of foetal abnormality justifies selective abortion, even at a stage when abortion is in general morally prohibited. It will be argued that this attitude is logically incompatible with a simultaneous commitment to non-discrimination against persons with disabilities, in that the Act makes allowance for the subjection of beings that are considered to be morally significant, but that exhibit disabling characteristics, to worse treatment than their non-disabled counterparts, despite the fact that this differential treatment is not always justified by the presence of impairment.

A coherent and convincing moral position requires, as a necessary, if not a sufficient condition, internal logical consistency. It is a worthwhile exercise to subject even our widely accepted moral views to examination to ensure that their underlying motivations meet this standard. Taking this into account, I would like to determine whether the following two moral standpoints are logically compatible:

1) The prenatal detection of foetal abnormality is an exceptional case which justifies selective abortion, even at a stage when abortion is in general morally prohibited.

2) The lives of persons with and without disabilities are, after birth, equally valuable and equally worthy of protection, and discrimination against those with disabilities is morally wrong.

If these two positions are incompatible, those who express both these attitudes simultaneously are guilty of logical inconsistency. I would like to argue that the implicit motivations for the first view may flout the prescriptions of the second view. Selective abortion for disability may, therefore, amount to discrimination, in the sense that beings that are considered (under the first view) to be morally significant, but that exhibit disabling characteristics, are subject to worse treatment than their non-disabled counterparts, despite the fact that this differential treatment is not justified by the presence of impairment.

The intuition expressed in the first view - that the prenatal detection of foetal abnormality justifies the practice of abortion, even when it would not be acceptable under other circumstances - is not only affirmed by a significant proportion of ordinary South Africans (Rule & Mncwango 2006: 260), but is also implicitly expressed in South Africa's Choice on Termination of Pregnancy Act of 1996. The Act legally entrenches the right to abortion, but restricts this right on a gradualist basis as gestational age increases. During the first 12 weeks of pregnancy, abortion is legally permissible under any circumstances. From the 13th until the 20th week, termination of pregnancy is permitted if there is a risk of physical or mental injury to the pregnant woman, if the foetus is likely to suffer from a severe abnormality, if the pregnancy has resulted from rape or incest, or if the continued pregnancy will result in a significant change to the social or economic circumstances of the pregnant woman. After the 20th week of pregnancy, termination is legally justifiable in only two cases: if 'the continued pregnancy... would result in a severe malformation of the foetus [or] would pose a risk of injury to the foetus' or if the continued pregnancy 'would endanger the woman's life' (South Africa 1996). The formulation of the law provides no upper gestational limit for termination in these latter cases, which effectively implies that abortion is legal until the onset of labour if the foetus presents with some severe impairment. On the other hand, other South African legislation1 repeatedly affirms its adherence to the moral attitude expressed by the second view - that the lives of persons with and without disabilities are of equal value, and equally worthy of respect and protection - and explicitly prohibits discrimination on the grounds of disability. …

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