Whose interests and whose rights in the ‘morning-after pill’ debate?

 

Following the judicial protest of the Women’s Rights Foundation, several have been arguing in favour of the legalisation, licensing, importation and distribution of the morning-after pill on three grounds.

First, it is claimed that this legal initiative is a step in the right direction since it intends to protect women’s autonomy in making decisions over their own body and their reproductive health, and that any limitation or prohibition of women’s autonomy is a breach of their rights. Moreover, it has been reported that the Health and Civil Rights Ministries are treating the matter as a civil rights issue since it is claimed that a lack of access to the emergency contraceptive pills is discriminatory.

Secondly, it is argued that this issue has important social justice implications. Ensuring women’s rights to reproductive choice enhances their social, economic and political contribution to, and participation, in their immediate and broader society. In a liberal and democratic society which supports woman’s emancipation, any form of injustice or restriction of their freedom of choice should be eliminated. 

Thirdly, it is claimed that the morning-after pill is not abortifacient. Because its exclusive mode of mechanism is to prevent ovulation, sperm capacitation, or fertilisation, then there is no zygote or embryo that would need to be morally and legally considered. Paradoxically, however, to bolster their arguments, advocates of the emergency contraceptive pill argue that the life of a human being begins after its successful implantation in the uterus. Consequently, even if a chemical or mechanical device makes the uterus lining less hospitable to the arrival of the human embryo from the fallopian tube, there would not be an abortion since before implantation the human embryo does not warrant respect and protection.

However, scientific facts prove that a genetically unique individual human being comes into existence at the very beginning of fertilization, not after implantation in the womb. The human embryo is a human being which deserves respect and protection when it is in a petri dish in the IVF/ET process, when it is in the fallopian tube during its migration to the uterus, and when it is later embedded in the uterus. The Embryo Protection Act of 2012 protects the dignity of the human embryo from the very beginning of fertilization in the petri dish at the laboratory. That fertilization, not implantation, marks the beginning of the biological existence of a human being is confirmed not only by scientific evidence but also by the European Court of Justice in its ruling in the case Oliver Brüstle v Greenpeace e.V. This judgement makes it clear that any human ovum must, as soon as fertilised, be regarded as a “human embryo” if that fertilisation is such as to commence the process of development of a human being.

More scientific facts are required to clarify the mode of action of the various types of morning-after pills. The ethical nature of these different chemical products depends on whether they function as contraceptives by preventing ovulation or fertilization, or whether in certain cases they could also have an anti-implantation effect. This second mode of mechanism is the bone of ethical contention since in the latter case a human being would be prevented from developing and therefore effectively aborted. Scientific integrity and transparency are essential to distinguish the mechanism of one product from the other. Labelling all emergency contraceptive pills simply as an extension of contraception does not seem to reflect the complexity and scientific uncertainties of the different chemical product involved. The mode of action of the various products of morning-after pills available on the market cannot be determined only on the basis of what industry states, but also by what independent scientific researchers publish in evidence-based, peer-reviewed literature.

The arguments from the perspectives of discrimination, civil rights and social justice are seen in a new light once the crucial issues concerning the scientific truth about the beginning of life of a human being and the multiple and complex modus operandi of the emergency contraceptive pills are clarified. Fostering a ‘culture of dignity’ in which every citizen is included and recognized for his/her uniqueness is to be welcomed and supported. In their statement, the local Bishops have already insisted that they strongly support any attempt to defend the dignity of women, their empowerment in society and their legitimate rights. 

Human rights are to be understood as claims that human beings have in relation to each other – claims that imply corresponding duties. Mutual recognition between human beings and their belonging together in a society are fundamental in a ‘culture of dignity’. In the context of the emergency contraceptive pill debate, the reciprocal relationship implied in human rights is absent since the interests and rights of possible venerable human beings during their first days of existence are disregarded. Defending women against discrimination by inflicting another form of discrimination against a fragile and defenceless human being is not legally and ethically correct.

Moreover, justice means giving everyone his or her due. The obligation holds even more strongly in the case of protection of the weakest members of society. The claim that lack of access to the emergency contraceptive pill puts women at a disadvantage cannot be defended without also considering whether the rights of others – in this case the most vulnerable before their implantation in the uterus – are being infringed. Social justice also demands the unconditional protection and respect of the right to life of human embryo during all stages of its existence.

If the government is to license the importation and distribution of specific emergency contraceptive pills, it is morally and legally bound to ensure that it is scientifically proved that the specific medicinal product chosen does not prevent implantation of the human embryo. Moreover, the government and healthcare professionals have the moral responsibility to give full information about the mode of action of any medicinal product in order to empower the client to make free and informed decisions. Lastly, healthcare professionals must continue to have the right to conscientious objection. No undue pressure should be exerted on them to prescribe or dispense medicinal products which in their conscience they assess as a serious threat to the right to life of a human being.

 

Rev. Professor Emmanuel Agius is the Dean of the Faculty of Theology at the University of Malta and a member of the European Group of Ethics in Science and New Technologies (European Commission)