Abortion: the viability test is dead but it won’t lie down

In a blog post here five months ago (and at greater length in reply to some of the comments on it, especially here) I argued that the point in a pregnancy at which the foetus becomes theoretically able to survive outside the womb — the moment of 'viability' — should not, logically or ethically, determine the point at which it should be made illegal to abort the foetus if the mother needs or wants to end the pregnancy.  Polly Toynbee and Zoe Williams among other media commentators, and the great majority of those commenting on my earlier blog post, agree that the viability test is fallacious, but also that it's extremely dangerous:  since medical science will no doubt find ways to enable a foetus to survive at an ever earlier stage of its development, and eventually achieve survivability for a fertilised egg at the moment of conception, the inevitable consequence of the viability test will be a complete ban on abortion at any time — which the Roman Catholics and some others freely acknowledge is their objective, and their reason for strongly supporting the viability test even though it's actually incompatible with their own doctrinal attitude to abortion.  There's even a clip on YouTube in which assorted Roman Catholic parliamentarians (and possibly others) seek to exploit the viability test (in which they can't logically believe) in order to stir up opposition to any move designed to make abortion easier.

So it's depressing to find that the viability test is apparently still accepted without question both by the Tory leader of the opposition, David Cameron, and by the Labour minister responsible for public health questions, Dawn Primarolo.  Last week I submitted to the Observer a letter which attempted to summarise the arguments (today's Observer unaccountably fails to publish it):

Robin McKie and Gaby Hinsliff, in their article about embryos and abortion (This couple want a deaf child, 9 March), like the Public Health Minister Dawn Primarolo, implicitly accept the proposition that abortion should not be allowed once the foetus becomes theoretically viable outside the womb.  But this is a fallacious and dangerous test.  The viability test is fallacious because our growing ability to keep a foetus alive outside the womb has no logical or ethical connection to whether a woman should be required to keep it alive inside her womb.  Whether a foetus is yet a person cannot possibly depend on the state of incubation technology. The viability test is dangerous for those of us who believe in a woman's right to choose because progress in medicine will cause the point of viability to recede, eventually back to the time of conception, at which point the viability test becomes a total ban on abortion.  The Roman Catholics are creditably honest about working towards this for their own doctrinaire reasons, but those who respect a woman's right to control over her own body, and who believe that her rights should take priority over any theoretical rights of a foetus which is not yet a person, should beware of letting the argument slip onto this treacherous ground.  Viability does not a person make.

Yours sincerely
Brian Barder

Here is David Cameron on the subject, reported in an article by the Guardian's Andrew Sparrow, senior political correspondent, on 25 February 2008:

David Cameron, the Conservative leader, today called for the legal time limit at which abortions are allowed to be carried out to be cut. He said that the current limit – 24 weeks – was no longer acceptable because of medical advances allowing some babies to survive outside the womb at that age.  

MPs campaigning to lower the limit want to force a vote on the issue when they debate the human fertilisation and embryology bill.  The government has so far not accepted the case for change, but it is expected that there will be a vote on a backbench amendment to the bill as it goes through the Commons over the next few weeks.  Cameron told the Daily Mail: "I would like to see a reduction in the current limit, as it is clear that, due to medical advancement, many babies are surviving at 24 weeks.  If there is an opportunity in the human fertilisation and embryology bill, I will be voting to bring this limit down from 24 weeks. This must, however, remain a conscience issue and a free vote."

Some campaigners want the limit reduced to 20 weeks, although Cameron's aides stressed that at this stage he was not committing himself to any specific lower time limit. … When abortion was first legalised in 1967, abortions were allowed up to 28 weeks. In 1990 MPs voted to cut the limit to 24 weeks. In 2006, 1,262 abortions were carried out at 22 weeks or later. Around 194,000 abortions were carried out altogether.

And the Hinsliff article cited in my abortive (oops) letter to the Observer makes clear the position of the government, also based on viability:

Tory backbencher and former nurse Nadine Dorries is to table an amendment to the bill which would reduce the upper limit for abortions in Britain from 24 to 20 weeks: David Cameron has pledged to support it. Dorries argues there is evidence that babies above this age are sentient – capable of feeling pain – although the scientific evidence is hotly contested.

Dorries first thought there was no chance of changing the law but is now more confident: 'I only have to walk through the House of Commons and MPs say: "I am with you on 20 weeks, I don't want to go any lower, don't want to ban abortion, but I'm with you."' … The Commons debate will concentrate on viability, the age at which a baby is considered to have a good chance of survival outside the womb. Public Health Minister Dawn Primarolo, who will steer the bill in the Commons, will tell MPs the medical consensus remains that babies cannot be considered viable below 24 weeks, which should remain the legal limit.  'The care of premature babies is clearly improving but it hasn't improved to the point where you can move the point of viability,' she told The Observer. 'There just is a certain time limit when things like lungs are formed. Clearly if the science changes we would have to make that clear to Parliament, but it hasn't.'

But a change in "the science" can't affect the argument, which is a moral and philosophical one, not a matter for scientists or biologists. 

It's depressing that people who should know better cling so tenaciously to their acceptance of the discredited viability test and refuse to recognise where it will eventually — probably quite soon — lead them, and us.  Presumably our brave political leaders of both parties are terrorised by the thought of the deafening screams from the anti-abortion lobby if they were to announce that they were abandoning the viability test and recognising the right of a pregnant woman to terminate her pregnancy at any point in it.  Or perhaps they simply don't understand and can't see either the fallacy or the danger in relying on viability.  If not for heaven's sake, then for that of thousands of women, wake up!


4 Responses

  1. Jed says:

    "So it's depressing to find that the viability test …"

    Strange choice of wording there. If this is what you consider "depressing" as opposed to the reality of abortion (the baby's pain and the corresponding coarsening effect on society) your head must be a rather sad and twisted place.

    Brian writes:  It's curious that so many of those opposed to all forms of abortion resort so readily to personal abuse (and in some extreme cases to murder!) in lieu of reasoned argument — and that so many of them can't see the difference between a foetus and a baby. 

  2. Giovanni says:

    Hi there,

    i was googling precisely to check what was the different views on viability being the point on where abortion should ultimately be banned and i found this article.

    I’d like you to please answer some question for the sake of understanding your thought on abortion fully:

    what is the point, in your opinion, at which it should be illegal to abort the foetus if the mother needs or wants to end the pregnancy? if viability is not acceptable what is the right moment then? at Birth?

    you don’t agree on basing the choice at wich point the fetus shoul be considered “human” based on scientific facts. Which  moral or philosophical fact or argument helps us point out when is a fetus a human person?

    Some thoughts on what i just read:

    “Presumably our brave political leaders of both parties are terrorised by the thought of the deafening screams from the anti-abortion lobby if they were to announce that they were abandoning the viability test and recognising the right of a pregnant woman to terminate her pregnancy at any point in it.  Or perhaps they simply don’t understand and can’t see either the fallacy or the danger in relying on viability.  If not for heaven’s sake, then for that of thousands of women”

    I always thought the lobby was on the abortion clinics associations side that earn millions of pounds with their activities opposed to the unpaid activists that fight for what they believe in, and this is something everybody has to admit while you agree with them or not. At the most you could say that the Church (wich is not the only one against abortion) has a purpose but no economic gain whatsoever.
    I don’t see any fallacy in relying on viability. This is an arbitrary choice but still one that can be defended and justified. you can agree with it or not (i don’t for instance) but you can try to understand it. To believe that we earn the “title” of humans at birth, that is hard to defend or justify. Why is then a 28 weeks premature baby human and a 36 weeks fetus not?

    Last: you talk about thousands of woman’s sake. Bare in mind that for someone against abortion and that consider every fetus aborted a suppressed human being they count the victims by the million.

    Hope you can find the time to answer to my question and maybe continue this debate.

    Thank you.

    Brian writes: Thanks for this. I don’t want to sound evasive, but I think I have already answered your questions in what I have written in Ephems, sometimes repeatedly. I think it should be up to the mother to decide whether or not to abort a foetus, at any time in her pregnancy. I see no connection between viability (a fluid term anyway) and an end to the right to terminate. Nor can I attach any meaning to the question when a foetus becomes “a human”. The development of a foetus is a continuum and selecting any specific point on it for such a momentous marker can only be arbitrary. No-one has any difficulty in distinguishing between a foetus in the womb and a baby that has been born. You refer to “the Church” as being “not the only one which is against abortion”, but there are many churches that accept abortion when the alternative is likely to be worse. In any case I don’t accept that the opinions of priests (especially when they are male and not allowed to marry or have children) are entitled to any greater consideration than anyone else’s: in most cases, probably less. By no means all ‘abortion clinics’ work for profit and I don’t think you will win converts by suggesting that those of us who favour women’s choice are driven by the profit motive.

  3. Giovanni says:


    Just one question: what are the fundamental differences between a foetus 5 minutes from birth, and a 5 minutes born baby? Please find the time to answer to this one question. Thank you.

    Is location a more solid argument than viability? It’s implied in your sentence that you think that a mother should have the right to abort at any time right until birth. Why is birth so significant? The problem ultimately, i think, resides in the fact that you can call it “voluntary interruption of pregnancy” instead of abortion but that no one has yet come up with a nice demagogic phrase to replace the term infanticide wich is, in your case, just 5 minutes away.

    Brian writes: This is becoming repetitive. A baby is not a foetus. A foetus is not a baby. A potential human is not the same as an actual human. The claims of the one on the mother and on society are not the same as the claims of the other. An unfertilised egg is a potential human: is it seriously suggested that it has the same claim on the owner of the womb that it temporarily inhabits, and on society at large, as a baby? This is not, repeat not, a question of semantics.

  4. Giovanni says:

    As expected you did not answer my question. Saying that something is or isn’t is not very challenging in a debate based on reason and logic. What would you think if i said: “a toadler is not an adult”. If it is so plain for you that a baby isn’t a foetus and viceversa, please explain to the rest of us, humble mortals, what are, in your opinion, these differences: is it the location of the foetus/baby or is there something more? As long as you avoid to answer this question and hide between self-made sentences i will consider that you are avoiding the subject because you know you cannot ultimately defend your position on this matter. Again to try and understand you: are you suggesting that a foetus 5 minutes prior to birth in his mother’s womb is not a baby, and that a premature born foetus is a baby based on the fact that one’s in and the other’s out of the womb? Please say it loud and try not to laugh.
    Do not use potential human as if it meant possible human. An unfertilised egg is a possible human.  A fertilized egg is a new, unique, distinct human being. I don’t think foetus make any claim on the mother’s or society. This does not exclude them to have the same rights all the other member of the human species (the ones who avoided abortion at least) have or do possess. A lot of innocents and disfavoured humans depend on the defence of their rights made by others. The problem, i guess, is that you don’t want to use science in this debate wich is the same as refusing to use a racket to play tennis. Science is very clear about when a new human being comes to existence: at conception aka fertilization of the egg. From that moment on that same specimen of the human race undergo a very large and complex process that with no added organism of any kind from the outside (except food wich is the only “claim” it makes on the mother) will change form and size. All the name we give this new specimen are arbitrary and simply help us identify all the different stages of development. A baby is more developped than the foetus it was wich is more developped than the embryo it was. One same specimen, one same human. I also like to think it otherwise: every adult human i ever knew, went the exact same path to be here, we all were foetuses and embryos. How can we permit for someone to have so great a power to decide if we live or die? How can we agree that our very life is not ours but belongs entirely to another human? I’d like to remember to everyone that this new life we know regret to have created exists because of a specific act of will.

    Brian writes: Thank you. I think that each of us has set out his position as fully as is likely to be useful, and that no purpose will be served by repeating either. As newspaper editors used to say after a lengthy exchange of contrary views had occupied their organs’ letters pages for long enough, “this correspondence will now cease.”