PBA210H: Bodily Autonomy

clip from movie Up story of gas station, kid getting into wrong car and guy driving away

• Does the unborn unjustly use his/her mother's body?
• Addressing Bodily Autonomy and duty of care in parent/child relationship

• Objection: Shouldn't a woman have bodily autonomy, a right to choose whether or not someone use can use their body? Even if it would be nice to let the fetus use her body, should she be forced to?
• Response: How would she refuse? Does an abortionist have a right to violate the child's bodily autonomy and the child's right to life by decapitating, dismembering and disemboweling the child?

This objection attacks the first premise (that it's always wrong to directly and intentionally killing an innocent human being); abortion is permissible because pregnancy involves an extraordinary act on behalf of the mother.

Suppose that you are in need of a kidney transplant in order to survive, and that your mother is the only person in the world who is a physical match, meaning that she is the only person who can provide you with a kidney and hence preserve your life. Do you have a right to your mother’s kidney?¹⁾
- Dr. Andrew Sneddon, University of Ottawa

The objection is that while it would be nice (permissible, even laudable) to let her pre-born child use her body, a woman should not be forced to do so (not obligatory).

The analogy:

• concerns two people in a parent-child relationship
• both uncontroversially full members of the moral community, with all of the rights that come with such membership
• One person (the child) requires the other person’s body (the mother’s) to survive

In the kidney case, my right to life and my need for my mother’s body to survive do not deliver any right whatsoever to her body, let alone a right that trumps her rights to control her body. The same goes for pregnancy.

This is a slightly improved analogy from the famous violinist argument, which makes a similar claim but with a more melodramatic and less comparable analogy.

1. Key question: What is the nature and purpose of the kidney versus the nature and purpose of the uterus?
   • Function of kidneys versus uterus: Kidneys exist in a body, for that body. The uterus exists around a body (a pre-born child's), for that body. A woman can live without her uterus but a fetus cannot; the uterus exists more for the pre-born child than for his or her mother.
2. Duty of Care: mothers (and fathers) have a responsibility to their offspring that they don’t have to strangers²⁾, not to do extraordinary (burdensome ) things, but to provide the basic/ordinary necessaries of life, such as feeding, clothing, and sheltering children in one's care.
   • Maintaining pregnancy is simply doing for a pre-born child what parents must do for a born child—it's what's required to provide the shelter and nourishment a child needs in the normal course of the reproduction of our species.
3. The method of refusing care is not analogous: With abortion, a pre-born child is directly and intentionally killed in the environment made for them. In contrast, the kidney-disease patient dies directly as a result of the kidney disease—not because of the choice of another person. The kidney case would only be analogous if, once denying a kidney to her child, the mother would dismember, decapitate, and disembowel him too.
   • With the kidney, if nothing is done, one person dies; in the pregnancy, if nothing is done, no one dies.
   • Put it from the perspective of the physician performing the abortion rather than the woman requesting an abortion: is it morally permissible for the abortionist to decapitate, dismember and disembowel the pre-born child? (This is the means through which a mother's bodily autonomy is exercised)
   • Katie S: “The right to life is a restriction from directly killing an innocent human being. It is not the right to be kept alive at all costs. They must not be confused. Refusing blood donation is okay, because nobody has the right not to die, however, abortion directly and intentionally kills someone, which violates the right to life. So, the right to life doesn’t force us *to* do something, it prevents us from doing something (killing).” I.e. R2L is a negative right, the right to not be killed
4. Stephanie's cabin analogy: if a woman wakes up found abandoned in cabin with newborn child (not her own), and there is formula in the fridge (or she recently gave birth and is capable of breastfeeding), would even she have a duty to provide that child, who is under her charge and who she is uniquely and solely able to provide for, with the necessaries of life?
5. is this the right place for this argument? Dependency implies an increased responsibility: Rather than a duty of care to vulnerable people relinquishing a right to life, in every other circumstance we acknowledge that a duty of care to vulnerable/dependent persons in our care actually results in an increased responsibility. This is not just a flawed argument in favour of abortion, but it's actually another argument against abortion!
   • Using Power Responsibility: Captain of the plane that landed in the Hudson River (walked the aisle twice) versus the Captain of the Italian cruise ship
     • Chesley Sullenberger, US Airways flight
     • Captain Francesco Schettino of the Costa Concordia abandoned ship

> Using power responsibly is what the world saw in January 2009 when Chesley Sullenberger (“Sully”) safely landed a US Airways Flight on the Hudson River after its engine blew. In an unplanned, undesirable, unwanted moment, he chose to do what was right—to land the plane as safely as possible. Not only that, but as water was filling the cabin, he walked the aisle twice to make sure every passenger had been rescued.

in dialogue: important to establish whether PCer thinks embryo is a person (funny video mock dialogue from SPL https://youtu.be/pwvCCyHepS8)

It's not sufficient to say that there's a moral obligation, but also that there is justification for this obligation being legal as well.

• First, the only way out of the parental obligation to provide the necessities of life in pregnancy it is to directly and intentionally cause the death of the pre-born child – it's abortion that should be illegal first and foremost, and the parental obligation almost just follows from that
• Our Criminal Code recognizes a duty for parents/guardians to provide the necessaries of life to children in their care, Section 215:
  • (1) Every one is under a legal duty
    • (a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
    • (b) to provide necessaries of life to their spouse or common-law partner; and
    • (c) to provide necessaries of life to a person under his charge if that person
      • (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
    • (ii) is unable to provide himself with necessaries of life.
  • with some exceptions in Section 2 if the person's life would be at risk or the health of the person would be “endangered permanently”
• Duty_to_rescue in some jurisdictions
  • e.g. Quebec Charter of Human Rights and Freedoms: “Every human being whose life is in peril has a right to assistance…Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.”

should this go here? Or under Thompson?

Some argue that the right to bodily autonomy is absolute and extreme, that a woman should have a right to do whatever she wants to her body or to ingest whatever she wants, regardless of whether or not there is another human body within her womb.

Most people don't accept this view though.

• We have warnings against alcohol consumption for pregnant women
• Thalidomide, or isotretinoin (Accutane)³⁾ – is a drug that is used to treat acne – can cause severe fetal injury and developmental defects

However, people might still make a moral/legal distinction – “Okay, well, I agree it's immoral for a pregnant woman to ingest something she knows will harm her child, but what are you going to do, prosecute her or throw her in jail for having too many glasses of wine? What if she doesn't even know she's pregnant yet?”

Some possible responses:

• There are a ton of different ways distinctions could be made or laws could be crafted
  • First, it's very easy to distinguish between performing a surgical abortion procedure and ingesting something which might cause an abortion as a side effect. So we can immediately set aside surgical abortions as easy to restrict apart from thalidomide
  • Second, let's look for useful references in existing law
    • How do we handle the legal responsibility for ingesting dangerous amounts of alcohol with respect to drivers?
      • Bartenders have a responsibility to cut people off
      • There are regulations around blood-alcohol levels
        • May or may not be relevant, because people know they're driving but may not know they're pregnant
    • How do we handle the legal responsibility for not causing harm to your children?
      • Ingesting some things can be harmful to children when breastfeeding. How does the law handle this?
      • Just because something is harmful doesn't mean it necessarily needs to be illegal, or criminal. For example, with child safety and duty of care after birth, there are point-of-sale restrictions, or regulations (e.g. car seats), or other areas that are just more educational campaigns (e.g. how to avoid SIDS or safe co-sleeping practices)
  • Third, we don't need to have all the answers. We can clearly identify some cases that ought to be illegal (e.g. a surgical abortion), and others that perhaps should not be illegal, and many in between. The pro-life position is that pre-born humans should have human rights too, but there's still a lot of policy work and legal questions and distinctions to be determined. There are lots of options and possibilities.

interesting article on the difference between the “right to refuse”/violinist argument vs. the “sovereign zone” argument + how to counter it in dialogue https://blog.equalrightsinstitute.com/autumn-in-the-sovereign-zone-why-its-my-body-i-can-do-what-i-want-wont-do/