Friday, May 26, 2017

Is There Such a Thing as an Illegal Pregnancy?

by Dr. Ruwantissa Abeyratne-
A baby is something you carry inside you for nine months, in your arms for three years, and in your heart until your death.”… Anon
( May 25, 2017, Montreal, Sri Lanka Guardian) I was quite bemused to read, in an excellent article on abortion titled The Question of Abortion written by Rev. Father Augustin Fernando in the Daily News that there is such a thing as an illegal pregnancy.  To quote the holy priest: “Irregular and illegal pregnancies occurring outside of marriage could be prevented by sufficient and orderly instruction of adolescents organised well and carried out by capable persons. These instructors could instill the right values to refine the sense of responsibility in young people and to help them to be aware of the possible consequence of irresponsible and impulsive actions especially with regard to thoughtless, spontaneous sexual relations.
All could be instructed to avoid and abstain from indulging in a brief, temporary pleasure that could ruin a whole life. If they understood that sexual relations outside marriage is demeaning the integrity of a union that is to be held chaste and sacred, they would not recklessly indulge in it. It is the uninstructed, ingenuous and naïve persons who subsequently feel like trapped people after having indulged in illicit sexual activity. Even private and secret sexual relations could have public repercussions and unexpected ramifications”.
Father Fernando’s sagacious advice cannot be questioned and I am sure he developed his narrative from a religious context.  However, The Reverend Father ascribes to a pregnancy occurring outside the sanctity of the institution of marriage the burden of illegality which, from a legal and social perspective would not be sustainable.  First of all, one must look at the definitive meaning of “illegal”.  Illegality means the state of being contrary to or forbidden by law, especially criminal law.   The question then arises: “is it contrary to law to be pregnant”?
Technically speaking, pregnancy is the state of carrying a developing embryo or fetus within the female body.  This process is the result of cohabitation between a male and female.  There could be jurisdictions where such cohabitation between unmarried persons would be prohibited by law incurring penal or civil sanctions (for example, it is reported that unmarried mothers have to pay a fine in China and pregnancy out of wedlock is taboo in countries following Sharia Law).  However, it would certainly be unusual to pronounce that the carriage of a developing embryo is per se and per force illegal.
If pregnancy were to be considered illegal, it is inevitable that such a condition would come under some form of sanction.  On the contrary, The Pregnancy Discrimination Act (PDA) of the United States prohibits discrimination based on pregnancy in the context of any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.  The Act goes on to say: “if a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees”. Also, a woman cannot be fired in the civilized world for being pregnant.
These measures of ensuring the dignity of pregnancy – no matter what the circumstances are in its occurrence –  have been adopted for one reason, and that is to recognize the sanctity of human life carried within the womb of the mother.  If it were otherwise, a disturbing conundrum that would emerge both from a social and legal context is that if pregnancy were to be considered illegal, one could argue that the remedy could lie in aborting the fetus.  In the 1973 case of Roe v. Wade  which granted women the right to terminate an unwanted pregnancy, based on an implicit fundamental right to privacy upon  a decision  handed down by the Supreme court of the United States, the following conditions were laid down for an abortion to take place: In the first trimester, the state (that is, any government) could treat abortion only as a medical decision, leaving medical judgment to the woman’s physician; in the second trimester (before viability), the state’s interest was seen as legitimate when it was protecting the health of the mother; after viability of the fetus (the likely ability of the fetus to be able to survive outside and separated from the uterus), the potential of human life could be considered as a legitimate state interest, and the state could choose to “regulate, or even proscribe abortion” as long as the life and health of the mother was protected.
The above notwithstanding and legality aside, pregnancy out of wedlock often leads to social ostracism especially affecting the mother.  The literature of the early nineteenth century brings in a mixed bag, where in certain black communities in the United States, although such a condition was frowned upon, societies came together to look after the unwed mother.   A book that resonated the puritanical social mores of the time was Nathaniel Hawthorn’s The Scarlet Letter   where Hester Prynne, who had an adulterous relationship which results in her pregnancy, is considered a deviant who deserved ostracism, punishment and even violence.  However, it is incontrovertible that the responsibility of a parent, and indeed of society should not be determined by the circumstances of the child’s conception. Psalm 127:3 says: “Behold, children are a heritage from the Lord, they are the fruit of the womb – a reward”.  Also in the Gospel of Mathew (6:14-15) it is said: “For if you forgive others their trespasses, your heavenly Father will also forgive you, but if you do not forgive others their trespasses, neither will your Father forgive your trespasses”.
The bottom line is that pregnancy cannot be associated with the mother’s guilt or innocence or presumption thereof.  Neither can it be held against the perpetrator of rape from a moral perspective (we are not talking legalities here).  The perpetrator is guilty of violating the woman, but pregnancy is essentially and intrinsically linked to the incipient life involved and to that extent cannot be branded either way.  As Pope Francis said: “  All life has inestimable value even the weakest and most vulnerable, the sick, the old, the unborn and the poor, are masterpieces of God’s creation, made in his own image, destined to live forever, and deserving of the utmost reverence and respect.