Abortion in Themiclesia

Abortion in Themiclesia is a legal, political, and social topic, characterized by social stigma and affected by changing attitudes and developing legal theories. Today, abortions are legal at any point in pregnancy, under the doctrine that a fetus is not a person, but arguments have varied in the past as to the legality of abortions and the rights of parents.

History

Premodern

The legal discourse about abortion in Themiclesia has historically been virtually exclusive of any argument other than family and inheritance law. In no known case controverted before a court of law was a fetus ever treated as a independent entity that exists outside of the family's interest to have a source of productivity or male person's interest to have an heir to his clan name, titles, and property. In this light, most legal scholars concur that to ancient Themiclesian jurists, fetuses were property that belonged to others and not persons capable of humanity. Themiclesian law formerly allowed persons to be property of others, such as slaves were property to their owners but possessed certain personal rights against arbitrary homicide or mutilation, even by their owners. However, fetuses were considered inanimate entities, capable of being of value to others but not capable of personhood.

Most cases controverting the legality of abortion prior to 1800 arise over a male person's "offspring of the body" as his legal heir. Once the heir inherits, his mother had a number of obligations placed as the legal widow of the deceased. For a variety of reasons, pregnant mothers may not wish to undertake these obligations and thus abort the fetus. Traditionally, Themiclesians place much value on continuation of the family line, and any offspring of the body, legitimate or not, had a place as a successor to his male progenitor's family, social, and sometimes political status. Legally speaking, killing a person's established heir was an offence against the person and his family, and the killer could be ordered to pay as much money as will be required to find or rear another suitable heir. For instance, if a farming family had some productive farmland and an heir who was expected to become the proprietor of said land and the main source of agricultural productivity, killing such an heir would indebt the killer to find another suitable (i.e. equally productive) heir to the land or, where it is not possible, to pay for the expense of raising another male child until he could take over from the ageing father; if the land were to fall to waste in the meantime, the killer would have to ensure its previous level of productivity, as though the killed heir was alive, until the new heir was able to be as productive, or at any rate make payment to the same effect.

The controversy then lies in whether a fetus is capable of being an heir to such familial and personal interests and obligations. If the fetus is recognized as heir, then the party that destroyed it would be financially responsible for its replacement. Peripheral to this question frequently were others, such as whether the heir was presumptively or positively established, or whether the pregnant mother was a stranger, legal spouse, concubine, or slave to the male that impregnated her. Unfortunately, judgments were not consistent through history:

• In 244, a civil servant sued his divorced wife for destroying a fetus that he claims is his heir, claiming the expenses of raising and educating a boy to be a civil servant. The judge said that the fetus must be male for this damage to be real, and there is no evidence that the fetus was male. The judgement was for the defendant.
• In 470, a wife was sued by her husband for aborting a fetus he claims is his heir. The wife averred that the child was with her husband's servant, who seduced and had sex with her. The judge said that since the husband could not prove the fetus' parentage, he had no right to sue.
• In 482, a man who bought a slavewomen allowed her to drive a vehicle, but she ran over a boy. Sued at court, judgment was for the family of the boy killed, the slavewomen to be strangled. But during trial she was found pregnant, and the owner of the slavewomen agreed with the grieved party to surrender the slavewomen's future child as compensation for their boy, amongst other goods. However, the man who sold the slavewomen to her current owner claimed that the fetus was his heir and must not be handed over. He argues that the fetus did not belong to the criminal slavewomen but to him instead, and since he had no part in runing over the boy, he should not lose his property to the case at hand. The owner of the slavewomen denied that she was pregnant when he acquired her. This particular case stirred public attention in Kien-k'ang but never reached a conclusion; the slavewomen miscarried and died in prison after six years.
• In 525, a woman from a wealth family married with a considerable dowry into a poorer man's family. One day he caused injury to her fetus and demanded she visit a physician at her own expense. She refused, and eventually the fetus miscarried. The husband brought her family to court, arguing that she had not obeyed him to seek a physician's treatment. Her family argued that the husband was not willing to pay for the treatment and had demanded her to use her dowry for treatment, which she was not obliged to do. Judgment was for the wife's family. The husband appealed to the Council of Lords that he had a legal interest to have an heir that was damnified by his wife's refusal to see a physician. The Council affirmed the court below that the man's own property was smaller than his wife's, so the principal legal interest to have an heir belonged to the wife, since her dowry would pass to her son upon her death.
• In 531, a man bought what he and the seller thought was a slavewomen and copulated with her with the intention of producing a child as a secondary heir. The slavewomen actually turned out to be a slave sold by the government as a concubine of a convicted prisoner. However, the conviction was overturned soon after the copulation, and the slavewomen was restored to freedom. The man clandestinely negotiated with the slavewomen to conceal her from her former master and disguise her as his former, deceased spouse, meaning the fetus conceived as a secondary heir would be elevated to a primary heir, displacing his current spouse's infant. This was possible since a former spouse's child automatically was preferred as heir. For the slavewomen, she agreed because her former master was violent. The wife's brothers found out about this deception and brought the slavewomen to court, and the slavewomen's former owner came forth to reclaim her. The former owner was persuaded to disclaim her by a monetary payment. The court, however, ordered that the fetus must be destroyed as a tool used to defraud the spouse's family's legal interest in having their offspring, via the spouse, inherit the man's estate, as well as disrupting a union of two clans.

18th and 19th centuries

Starting in the 1700s, foreign notions about abortion, mostly from Casaterra, began to be voiced in Themiclesia. While chattel slavery (私臣妾, sje-gljing-ts′jap) had been abolished for centuries, penal slavery (隸臣妾, rebh-gljing-ts′jap) remained in practice, and advanced thinkers began to advocate for their rights as human beings.  Conservatives, especially in jurisprudence, initially dismissed such assertions as absurd, saying that "slaves may look like persons, but they are not persons." Liberals at court held the view that humanity was not created by laws and consequently should not be arbitrarily defined by them. They disseminated the view that all human beings (biologically) should be evaluated with some degree of equivalence, and this had two complementary directives. For the privileged classes, this meant they should be subject to the same standards, at least sometimes, to the non-privileged; the under-privileged classes should be aided to an equal footing. As far as abortions were concerned, they saw that fetuses developed into infants and conceived of fetuses as even more vulnerable versions of infants, i.e. it was a disadvantaged human being and deserved to be defended.

Some early Liberal jurists compared abortion to homicide and were ready to prosecute pregnant women and doctors offering abortive remedies as such. However, the legal mainstream never accepted the idea that fetuses constituted human beings in criminal cases. Trjang CJ pointed out in 1879 that "as far as what is naturally a human is concerned, it is the court's opinion that fetuses are not naturally human. Regardless of laws and cultural usages, we see that fetuses are incapable of breathing, eating, or drinking. All humans are naturally and animalistically able to do these things without an amniotic sack or umbilical cord. There is nothing "unnatural" about excluding fetuses personhood on these grounds, which are biological." Trjang further said that if fetuses were humans because they might live at some point, then corpses should also be treated as humans, since life can sometimes be restored to them. The Conservative position regained prominence in the mid-19th century arguing that "fetuses as humans" created a slew of anomalies that Liberals couldn't resolve, including whether fetuses were capable of owning property or have other legal interests, or whether the pregnant mother should legally be required to carry and make space for it in her own body. Liberals, on the other hand, insisted that at least the legal anomalies were legal problems and could not change the status of fetuses as humans.

20th century

In 1910, the Conservative position temporarily defeated the Liberal one. To CJ, in the Court of Appeal, ruled that if 1) the fetus was a human being, then it had no legal right to occupy the body of another human being or to seep off nutrients off that other human being, and the fetus should be prosecuted for assault, and 2) if the fetus was not a human being, then it had no legal interest that could be violated. Thus, whether the fetus was considered human or not, there was no case for homicide against either the pregnant mother or the doctor perfomring an abortion. In the absence of statutes criminalizing the act of abortion itself, To CJ declared that the Court of Appeal was unaware of any law that prohibits abortions.

However, the Liberal government passed in 1912 precisely such a law criminalizing abortion, the Prevention of Aborting Embryoes and Fetuses Act, claiming that the abortion of fetuses was against national interest of a kind society, the human emotion of pregnant mothers, and the rights of an unborn fetus. A hefty fine of €50 was imposed on doctors that performed abortive procedures and the pregnant mother that solicited the doctor. The Conservatives levied the Liberal line of "naturalism" against themselves, saying that the "national interest" had nothing to do with natural interests of humanity. Despite the Liberal argument, this law criminalized the act of abortion itself, rather than stating that fetuses had the legal interests of ordinary human beings. The courts were thus unable to maintain the legality of abortions, but it seems the law had little effect. Abortion remained a sensitive and personal issue in Themiclesia, with few with knowledge willing to report and police officers to investigate, and doctors providing this service naturally did not report their patients. As historian J. R. Clark said, "people in a position to report you have no interest to report you." Then, in 1915, the Supreme Court decided that a spy that reported an abortive procedure by taking a picture of it had committed a felony, since he had no right to capture the operation. The defence attorney believed that it could not be "a crime to report a crime", but the court said that "reporting a crime is not an excuse to commit one."

The Prevention of Aborting Embryoes and Fetuses Act was repealed in 1917.

Controversies

Infanticide

As Themiclesia law essentially permitted abortions at any point up to delivery, it became a question when exactly a fetus became a human being. According to tradition, it seems a fetus remained a fetus as long as it was in the pregnant mother's womb, and as soon as it was delivered it became a human being. An argument in 1812 relied on philology to establish this rule—the word for "birth" in Shinasthana is the same as "to live", in an inchoative sense ("to start to live"), so the fetus becomes an infant as soon as it is delivered. After Trjang CJ made his judgment in 1879 fetuses were not humans because they could not breathe, courts have held that a fetus was not a human being as long as it did not start breathing. Foreign observers made note of this and claimed that midwives regularly dashed unwanted newborns on the ground, and this was legal since the fetus had not breathed yet; or if it had, nobody could testify otherwise. This claim seems suspect, since midwives in Themiclesia generally shut all men and women outside of the pregnant mother's family away during delivery, so that their skills would not be observed, and all indeed such claims have been made by men. This belief that Themiclesians dashed infants at birth became a myth in many Casaterran and Columbian countries, despite scholarly skepticism. Most notably, C. R. Nelsen of Camia wrote in 1920, "What are the chances of a pregnant mother deciding to abort her fetus after delivery, having suffered to carry it to term for ten consecutive months?"

See also

• Themiclesia