In Britain, as in Europe generally, abortion law has not been made by judges proclaiming glistening, hard-edged rights that cannot be compromised. Rather, abortion law has been made by lawmakers -- imagine that -- seeking to accommodate clashing sensibilities. That is one reason why British law is less extreme than America's essentially unlimited right to abortion on demand.
In Britain, after the 24th week of pregnancy -- "viability," when the child presumably can live outside the womb -- an abortion is permitted only when "there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped." But in 2001 an unborn 28-week-old child was aborted because new techniques for detecting fetal abnormalities indicated that the child had a cleft lip and palate.
An Anglican curate, a 28-year-old woman who was born with a congenital defect of the jaw, tried to get a court to consider this a case of "unlawful killing." She noted that far from being substantially handicapped, she is enjoying life -- as is, by the way, her brother, who has Down syndrome, a genetic defect involving varying degrees of mental retardation. Prosecutors eventually refused to file charges, relying in part on guidance by the Royal College of Obstetricians and Gynecologists that stated there is "no precise definition of serious handicap."
But the prosecutors' refusal goes far toward supplying a definition. The refusal implies that any abnormality can qualify as a serious handicap because seriousness is determined not by its impact on the disabled person's life chances but by the parents' reluctance to be inconvenienced by it. How else is one to understand abortion as an alternative to surgery that corrects cleft lips and palates?
In Britain, more babies with Down syndrome are aborted than are allowed to be born. In America, more than 80 percent of the babies diagnosed prenatally with Down syndrome are aborted. This is dismaying to, among others, the American Association of People with Disabilities, whose premise is that "disability is a natural part of the human experience."
The AAPD worries that increasingly sophisticated prenatal genetic testing technologies will mean that parents who are told their expected babies are less than perfect "will experience pressures to terminate their pregnancies from medical professionals and insurers." The worry is not groundless.
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