| Popis: |
This thesis will examine the legal, ethical, moral and theoretical issues relating to abortion in the United States and Australia. The legal standing of prenatal human beings (also referred to as a foetus(es) or an unborn child(ren)) in New York as a victim of homicide has gradually changed over time. That is, legal standing has been, and is, contingent upon different factors that have changed (‘Contingent Factor’). Historically, the Contingent Factor was not based upon the mother’s1 consent however, now it is; although, foetal victimhood should not depend on whether the mother has consented to have an abortion or not. When s 125.00 of the New York Penal Law (1965) (‘Act’) was enforced, which can be traced to an 1869 enactment, neither the mother’s consent to procure an abortion nor the foetus’ status of personhood or species membership was taken into consideration in determining foetal victimhood. However, the decision in Roe v Wade (1973) – despite being recently overturned – in conjunction with the Act’s repeal by the Reproductive Health Act (2019) and the introduction of the Unborn Victims of Violence Act (2004); unborn children are no longer considered victims of homicide in abortion cases and the Contingent Factor now hinges upon mother’s consent, a position with which I disagree. If the foetus’ personhood status or species membership were not determining factors that provided them with victimhood, then establishing foetal personhood and species membership are not necessary conditions for providing unborn children with victimhood in an abortion. Though they may be sufficient conditions, they are not necessary. Therefore, the debate surrounding the topic of abortion should be focused upon the following proposition - a foetus’ legal standing as a victim of homicide is contingent upon the mother’s will. This should not be the case. With this shift of the Contingent Factor, the application of Visa Kurki’s new Bundle Theory of legal personhood on foetuses may shape how we view foetal legal personhood in the abortion debate. This thesis will be the first of its kind to apply this theory to prenatal human beings as it relates to victimhood and abortion. I term my new theory - Foetal Bundle Theory. Foetal Bundle Theory entails natural law propositions about the designation of foetal victimhood which imply it should not be grounded in the will of the mother. Given the premise that an unborn child is a human being from the moment of conception, in conjunction with Foetal Bundle Theory, this thesis argues that non-therapeutic abortions should not be permitted even on the grounds of incest and rape. Therefore, only therapeutic abortions should be permitted for the mother’s life is at risk. |
