You Can't Always Get What You Want: A Gewirthian Model of Rational Autonomy in Abortion

The law regulating the availability of abortion is problematic both legally and morally. It is dogmatic in its requirements of women and doctors and ignorant of would-be fathers. Practically, its usage is liberal - with s1(1)(a) Abortion Act 1967 treated as a ‘catch all’ ground - it allows abortion on demand. Yet this is not reflected in the ‘law’. Against this outdated legislation I propose a model of autonomy which seeks to tether our moral concerns with a new legal approach to abortion. I do so by maintaining that a legal conception of autonomy is derivable from the categorical imperative resulting from Gewirth’s argument to the Principle of Generic Consistency: Act in accordance with the generic rights of your recipients as well as of yourself. This model of Gewirthian Rational Autonomy, I suggest, provides a guide for both public and private notions of autonomy and how our autonomous interests can be balanced across social structures in order to legitimately empower choice. I claim, ultimately, that relevant rights in the context of abortion are derivable from this model.

Rights, Rationality and Reproduction: Balancing Interests in the Abortion Debate

As medical technology has advanced, so too have our attitudes towards the level of control we can or should expect to have over our procreative capacities. This creates a multidimensional problem for the law and family planning services in terms of access to services – whether to avoid conception or terminate a pregnancy – and the negligent provision of these services. These developments go to the heart of our perception of autonomy. Unsurprisingly, these matters also raise a moral dilemma for the law. Distinctively, discourse in this area is dominated by assertions of subjective moral value; in relation to life, to personal choice and to notions of the archetypal family. Against this, I stress that a model of objective morality can answer these challenging questions and resolve the inherent problems of legal regulation. Therefore, I argue that notions of autonomy must be based on a rational, action-based understanding of what it means to be a ‘moral agent’. I claim that from this we might support a legal standard, based on objective rational morality, which can frame our constitutional norms and our conception of justice in these contentious areas. This paper claims that the current regulation of abortion is outdated and requires radical reform. It proposes a scheme that would shift the choice towards the mother (and the father), remove the unnecessarily broad disability ground and involve doctors having a role of counsel (rather than gatekeeper).

You Should Never Look a Gift Horse in the Mouth: One-Size-Fits-All Compensation in Wrongful Conception

This article reconsiders the House of Lords decision in Rees v. Darlington Memorial Hospital NHS Trust (2003) and the decision to award a conventional award of £15,000 in all cases of failed sterilisation resulting in the birth of an unwanted child. In so doing, it briefly recites the history of the Wrongful Conception action and the unique facts of Rees. It then goes on the consider the implications of two fundamental aspects of the judgment. Firstly, it looks at the 'conventional award' itself and considers the reasoning behind the award and the effect that it has on our understanding of (particularly women's) reproductive autonomy. Secondly, it analyses the rather 'unique' judgment of Lord Scott and his decision to evaluate these cases using the possessory analogy of an unwanted foal; particular focus is given to the notion of parental 'choice' in these cases and whether mitigation (i.e. abortion or adoption) can ever be considered "reasonable".