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When Rights arent the Right Thing

Kaitlin Dryburgh- 26th May 2023

Just a heads-up : This article discusses pregnancy loss.

“I don’t live anymore, I exist”. Those are the words of Laura Gallazzi, who lost her baby during an extremely graphic and traumatising childbirth. Losing a child is one of the worst things that can happen to a person and many people just like like Laura who have experienced this loss believe that their lives will never be the same again.

After such a traumatic childbirth which was unfortunately led by an inexperienced doctor who without question made the wrong decision in the moment, Laura went on to look for justice for her poor son who was a victim of this devastatingly poor decision making. Yet, Laura came up against a huge barrier as legally her son doesn’t share the rights as her, as he never took a breath. Legal proceedings couldn’t be brought forward, neither could a fatal accident enquiry because he never became a separate person with his own legal rights. Laura believes that all babies over 24 weeks should have legal rights, be classed as their own person and be entitled to any legal investigation to ensure no criminal or negligent acts have taken place that impacted on their life.

For the many who have gone through a similar situation to be told that your baby wasn’t legally a person must be like getting punched in the stomach. As a parent, standing up for your child and protecting their interests will be second nature, so Laura isn’t alone in calling on the Scottish Government to change their legal definitions and many have supported her petition which will most likely hit the 10,000 signatures by the end of the week.

There are many campaigners and individuals all over Scotland, the UK and the world who are asking for the rights of any unborn child to be raised, to that of your average person on the street.

Perhaps to some that would seem a very reasonable request, but it could be a very dangerous route for Scotland to go down, a route that is extremely complicated and restrictive for women.

It’s not hard to see what the ramifications for women could be, just looking at countries such as the USA and how the slow unravelling of Roe v Wade has started to harm women. Or countries in South America who have some of the toughest punishments for women suspected of undertaking an abortion, even though they protest it was a natural pregnancy loss.

The overturning of Roe v Wade was perhaps the final straw in what has been a campaign lead by the Republicans to roll back women’s access and right to have an abortion in the US. So in the years leading up to the 2022 supreme court ruling that there is no constitutional right to an abortion things were already getting harder, with Trump at the helm it became much easier for strong Republican states to move the dial closer to criminalising abortion. However since 2022, states such as Missouri and Kentucky have quickly begin to change legal definitions so that life is recognised at fertilization, to increase the rights of foetuses by using terms and wording that begins to separate their reliance on the mothers body but instead recognises them as their own being. Just this week South Carolina made all abortions illegal over six weeks, which in reality most women don’t really know they’re pregnant at that stage, so really it’s a blanket ban without actually saying so. These states recognise the rights of the unborn child.

The last five years or so shows an increasingly worrying trend of women in the US being prosecuted for either having a stillbirth or miscarriage. In some cases authorities believe that the women had actually had an illegal abortion or in others women were charged with the manslaughter of their baby having suffered with drug addiction through-out the pregnancy. Such was the story of Oklahoma women Brittney Poolaw who was sentenced to four years in prison for killing her child when an autopsy found methamphetamine in the foetus, having been a frequent drug user. Although it was determined that it was a contributing factor there was no absolute indication that the baby died from this. Then there’s Latice Fisher who although claimed to have a stillbirth was charged for second-degree murder after investigators found that she had searched for abortion pills online, however there was limited evidence to suggest that she had actually purchased them. The most worrying element of these cases are that these women were charged with manslaughter and murder, the law recognised that the legal rights of the baby and didn’t acknowledge the women’s autonomy over her own body. In Scotland consuming abortion pills that haven’ been prescribed by a register medical professional would also be considered illegal, however as it stands you would only be prosecuted for that (highly unlikely) and not murder. However, who’s to say that wouldn’t happen if we were to acknowledge the legal rights of an unborn child.

El Salvador represents one of the most extreme cases of abortion outlaw, where one woman in particular was sentenced to 30 years in prison having been accused of murdering her baby even though she carried a very much wanted pregnancy to full term. Her daughter was stillborn and she was found guilty of murder. After she was released she began to tell her story and started to campaign for women to gain more rights than they currently do in El Salvador.

We don’t even have to go to El Salvador to see how having a miscarriage or stillbirth can produce speculation. Numbers in England and Wales show that there has been several cases over the past decade or so of women being investigated, some even being subjected to a year of investigations just to be told that there wasn’t sufficient evidence to suggest it was any more than a pregnancy loss.  Although abortion is a devolved matter in Scotland, we share similar abortion laws and regulations to England and Wales. Although we would want to stop “illegal” abortions from happening, the reasons shouldn’t be to criminalise but instead make sure that the safe routes are even more accessible and everyone has the support they need, after all this is a health issues not a criminal one.

This is without question a sensitive subject, and it’s impossible not to sympathise with the likes of Laura Galazzi who doesn’t have the aim to give the state more control of women’s bodies but approaches this discussion with a completely different viewpoint. However, to recognise the rights of an unborn child removes the rights of women and I really don’t believe there’s anyway of avoiding that fact, and like many I don’t believe there should be a compromise. By proceeding with the conversation alone, we look to stigmatise abortion, and criminalise pregnancy loss. If we were to proceed with an acknowledgment of legal rights at 24 weeks we would intrude on medical practitioners work and their ability to prioritise care rather than have to assess the legalities of a pregnancy loss. In places like the US where abortions were once accessible the reversal of Roe V Wade happened slowly, and for Scotland to begin to change legal definitions in this subject may have knock-on effects.

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