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.