Abortion: Τhe Legal Voyage of the Unwanted Child

Abortion: Τhe Legal Voyage of the Unwanted Child

Fereniki Panagopoulou-Koutnatzi (University of Piraeus and Peloponnese, Greece)
DOI: 10.4018/978-1-4666-8153-8.ch008
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Abstract

This chapter describes the ethical and deontological adventures of the unborn child with regard to abortion. According to Sumerian law, if a man strikes a free-born woman causing her to lose her unborn child, he must pay ten shekels1 of silver as a fine for her loss, whereas if a man deliberately strikes the wife of a free-born citizen causing her to lose her unborn child, he must pay a fine of one-third of a mina of silver. Nowadays, one should underline that every human being at the very beginning of life and even before birth treads a long and adventurous road filled with moral dilemmas and legal repercussions. The fact that this refers to the life of every person-to-be is not under question in this treatise. Likewise, the authors assume that every human is the bearer of human dignity.
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Historically, traversing the ethical and deontological adventures of the unborn child with regard to abortion, the first known reference to the induced termination of a pregnancy is in a law of the Sumerians (The Code of Hammurabi and other Codes of Mesopotamia, 1982, p. 37), circa 1800 BC. According to Sumerian law, if a man strikes a free-born (not a slave) woman causing her to lose her unborn child, he must pay ten shekels2 of silver as a fine for her loss, whereas if a man deliberately strikes the wife of a free-born citizen causing her to lose her unborn child, he must pay a fine of one-third of a mina of silver3. This law contains no mention of voluntary termination of a pregnancy.

Accordingly, the Code of Hammurabi deals only with the matter of the involuntary termination of pregnancy in articles 209 et seq., providing that “If a man strike a free-born woman so that she loses her unborn child, he shall pay ten shekels for her loss.” Article 210 of the Code states that if this woman subsequently dies from the assault, then the offender’s daughter shall be put to death. If the same act is carried out against the daughter of an ordinary citizen the offender must pay just five shekels (article 211), whereas if a maid-servant of a man is stricken and miscarries for that reason, the penalty is two shekels of silver (article 213). If this strike causes the death of the daughter of a citizen or of a maid-servant, then the offender must pay half a mina or one-third of a mina respectively. In view of the above, it is evident that the various penalties vary according to the social status of the victim and, as such, the level of condemnation for the act of abortion is determined according the social class of the pregnant woman’s father (Symeonidou-Kastanidou, Abortion, 1987, p. 17).

The first reference to abortion related to a woman’s volition, appears in the laws of the middle Assyrian period (1501–1218 B.C.): article 54 of the Assyrian Law Code provides that if a pregnant woman willingly causes the abortion of a foetus, then she will be put to death by impalement and she will not be buried, even if her death occurs because of the abortion itself.

An express reference to abortion is absent from ancient Egyptian laws. However, according to Diodoros Sikeliotis (A, 77, 7), infanticide was not treated as stringently as homicide as parents who killed their offspring were ordered to hold their dead child in their arms for three days and three nights, as lawmakers considered it unfair for parents to take away the life of a child that they created.

The Oath of Hippocrates (460–357 B.C.) expressly prohibits abortions. “I swear by Apollo the physician, and Aesculapius, and Health, and All-heal, and all the gods and goddesses, that, according to my ability and judgment, I will keep this Oath ... I will give no deadly medicine to any one if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce an abortion («ουδέ γυναικί πεσσόν φθόριον δώσω»).

The philosophers Plato and Aristotle are the earliest Greeks to discuss the state’s control of reproductive practices. Plato (427–347 B.C.), in discussing the role of women in his influential book on justice and political theory, The Republic (~380 BC) recommended abortions for women who became pregnant after the age of forty (Symeonidou-Kastanidou, 1987, endnote 43 et seq). In fact, Plato recommended both abortion and infanticide when deemed to be “necessary”. The principle that “[t]he helpful is fair and the harmful foul” (Plato, The Republic, V, 457 B) is the basis upon which Plato’s philosophy regarding birth control and abortion rests.

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