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28 May 1997

Abortion - whose rights?

Carrie Clarke considers the issues raised in recent the Scottish abortion case

The attempt by James Kelly to prevent his wife Lynne from having an abortion has finally come to an end. Kelly has at last given up asserting that the termination would be unlawful, saying he can no longer see any point in forcing his estranged wife to have a child she doesn't want.

Although the case is now over; it has raised issues that are sure to re-emerge as part of the abortion debate. Firstly that cases such as this are 'difficult issues' and the law as it stands does not give clear guidance on the matter - hence the possibility of a week-long legal wrangle. Second that perhaps men should have at least some say in abortion decision-making and not be excluded from deciding about the future of their child.

One point made by Mr Kelly's lawyers in the Scottish case was whether Lynne Kelly's request for a termination was legal. Did she simply have the right to end the pregnancy? In posing this question, the problems with the abortion law as it now stands were indeed brought to light. Lawyers could debate the legality of Lynne Kelly's request to terminate her pregnancy precisely because the law as it stands gives her no right to do so.

Abortion in Scotland, like in England, is regulated by the 1967 Abortion Act. Under this Act, a pregnancy can be legally terminated as long as two doctors agree that the woman meets one of four grounds for termination specified in the Act - grounds which revolve around the physical and mental health of the woman. The most commonly used ground is that continuing the pregnancy would constitute a greater threat to the physical or mental health of the woman than ending the pregnancy. That means a woman can get an abortion if two doctors agree that termination is better for her health than carrying the pregnancy to term It is on this ground that the majority of abortions take place.

In presenting termination of pregnancy as a 'health' issue that requires the authority of doctors, rather than the woman concerned, to make it legal the possibility of dispute over the matter is raised. In this sense abortion law is a grey area, because the law places qualifications on a woman's right to terminate pregnancy. The only way to resolve this problem, and make the issue an easier one for lawyers to resolve, is to give women the right to abortion. If the law placed decision-making in women's hands, and allowed the pregnant woman alone the ability to decide whether she wanted to have the child or end the pregnancy, cases like this would not be possible.

The other issue at stake in the Kelly case was whether men should have some 'rights' in abortion cases. While abortion has conventionally been widely regarded as a 'women's issue', the social context for the discussion today has created a situation where men's views about pregnancy are taken more seriously. While the Edinburgh court refused to grant James Kelly any 'rights' in determining the outcome of his wife's pregnancy, much of the media debate concerned itself with the extent to which fathers should be allowed more of a say.

It is understandable that many questioned the idea that abortion is a matter only the woman would be concerned about. After all society is now demanding that 'errant fathers' face up to their responsibilities, that men take their role as a parent seriously and ditch the out-dated, 'macho' idea that their duty is as the breadwinner. Men are now expected to be present at the birth of their child, and boys are to be given parenting classes to teach them how to look after children when they are barely out of nappies themselves. It is an inevitable consequence of this shift in society's expectations of men that 'father's rights' in abortion decisions are seen as a more legitimate cause.

Whatever we might think of men being asked to take on what was traditionally seen as the 'woman's role', the abortion issue remains straightforward. There can be no equality between men and women when it comes to the experience of pregnancy. It is only the woman who will go through pregnancy and face the prospect of giving birth to a child. For the time she is pregnant, the implications of the pregnancy are simply and obviously different to those for the father, regardless of what might happen after birth.

Perhaps one of the most interesting aspects of the discussion generated by this case is the extent to which aspirations in relation to pregnancy and child-rearing have shifted. The original reason why those concerned with women's liberation made an issue out of abortion was to establish the possibility for women to express themselves in ways other than through motherhood. The issue at stake was the right to end pregnancy, on the basis that pursuing a career and being active in the public world was something women wanted to do. Being able to end unwanted pregnancy was vital in order to achieve this end. These days men demand the 'right to be a father', and prioritise looking after children with equal passion It says something about our society when parenting has become such an attractive prospect.

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