On Thursday 8th December, the BBC reported a peculiar suit filed in the state of Louisiana, USA. Court documents obtained by the New York post indicate that Emma and Isabella have sued their mother. This sounds normal until you hear the bizarre circumstances under which this suit has been brought.
You see 2 years ago, Sofia Vergara an actress in the popular series Modern family and Nick Loeb, a businessman decided to have their fertilised embryos frozen and kept, apparently to be brought to term later. They went ahead to sign a contract that made it mandatory for the consent of the other to be obtained before the embryos could be used for any purpose by one of them. The relationship hit the rocks and they called it off. Fast forward and the father of the embryos, backed by a number of pro-life bodies wants his embryos (which he has named Emma and Isabella) planted in a surrogate mother and allowed to be born. He argues that they are being denied the opportunity to benefit from a trust created for them. Ms. Vergara wants none of this. So Loeb has brought a suit against his ex on behalf of his embryo
Of course, the first question to come up in ones mind is, do the embryos have the capacity to sue? Interestingly, the law in Louisiana recognises embryos as juristic persons. (It is partly because of such laws that Louisiana is considered a pro-life state) Juristic persons are those with the capacity to sue or be sued. They can be both natural and unnatural. The natural persons are human beings while unnatural ones include companies and body corporates. The unnatural juristic persons are normally involved in civil disputes and not criminal matters.
Most importantly and also the reason why I penned this article, the case resurrects the debate on when a fertilised egg should be considered a human being. In Ohio, Republicans are preparing anti-abortion legislation that would make it illegal to abort, once the embryo has a heartbeat, which is in effect a 6week embryo. To them once the embryo attains a heartbeat, it is deemed a human being. According to the Catholic Church, an embryo is a human being upon conception. The locus classicus in the area of abortion is Roe V Wade. In this case, the US Supreme Court decided that the right to privacy extended to a womans decision to have an abortion. It however tied individual states anti-abortion legislation to the third trimester of pregnancy. The rationale was that the potentiality of human life became stronger over the course of a pregnancy and that a woman has the right to abortion until fetal viability. It went on to define viable as potentially able to live outside the mothers womb, albeit with artificial aid. The third trimester rule was later altered in Planned Parenthood V Casey (1992) where the U.S Supreme Court acknowledged that in light of medical advancements, viability of an unborn baby may be attained at 23 or 24 weeks and sometimes earlier.
In Uganda, the law and public sentiment remain generally anti-abortionist. According to Ministry of Health guidelines of 2008, abortion is only permitted under a few circumstances like where the mothers life is at risk, or where she suffers from HIV or cervical cancer. However under the bill of rights of the 1995 constitution of Uganda, Article 22 provides for the protection of the right to life. Article 22(2) goes on to explicitly state that no person shall have the right to terminate the life of an unborn child. According to the Penal Code, abortion is a felony and it is classified under offences against morality. It is punishable by a prison sentence of seven years for the woman who undergoes abortion and fourteen years for the person who helps to procure the abortion. Therefore, many health service providers who would otherwise perfom safe abortions do not offer this service because there is still a grey area on the circumstances under which abortion is legally permitted.
As a result, the abortions in Uganda are secretive, unsafe and more often than not result into death or infertility. The reason why such laws remain unchanged in our statute books deficient of any revision is because issues like abortion are not a priority. They do not feature anywhere among the campaign manifestos of presidential candidates unlike in the U.S.A where the right to abort was a major point of contention with Donald Trump promising to have Roe V Wade overturned. The appointment of judges of the U.S Supreme Court also depends on their stance towards abortion. In Uganda, the prioritization of poverty eradication and economic transformation has pushed maternal health concerns to the rear. To make matters worse, information and counseling about abortions is widely unavailable. Such roles have largely been abdicated to the civil society and Non-Governmental Organisations.
Some people admit that abortion should be permissible in cases where the pregnancy is as a result of rape, defilement or incest. However, these are not the reasons why women in Uganda have abortions. The grim statistics show it all. According to the Guttmacher Institute, unplanned pregnancy is the root cause of most abortions. More than half of the pregnancies in Uganda are unintended and nearly a third of these end up in abortion. In 2008, the Ministry of Health estimated that abortion-related causes accounted for 26% of maternal mortality. The Centre for Health, Human Rights and Development, a Kampala based research and advocacy organization has reported that 840 girls and women have abortions in Uganda on a daily basis and on average 5 of them result into death translating into more than 1500 deaths annually.
The time is ripe for laws on maternal health to be revised and updated. Both the Millennium Development Goals and now the Sustainable Development Goals not only provide for the eradication of extreme poverty and hunger but also the improvement of maternal health. This underscores the need to balance the efforts towards achieving a better world. We need clearer laws.
In the meantime I will continue to rub my fingers in anticipation, waiting to see whether Emma and Isabella will win the case against their mother. If they do, they will probably be the first human beings born as a result of a court order