The English fetus and the right to life

European Journal of Health Law

Volumn 11, Issue 4, 2004, Pages 347-364

  Scott, Rosamund ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ABORTION; HEALTH CARE PERSONNEL; HEALTH CARE POLICY; HUMAN; HUMAN RIGHTS; LAW; LEGAL ASPECT; MEDICAL LITERATURE; MOTHER FETUS RELATIONSHIP; PRENATAL DIAGNOSIS; REVIEW; RISK ASSESSMENT;

EID: 23144454915     PISSN: 09290273     EISSN: None     Source Type: Journal    
DOI: 10.1163/1571809043418324     Document Type: Review

References (71)

1. See e.g. Re M.B. (Adult: Refusal of Medical Treatment) 8 Med. L.R. 217 [1997].
2. Judgment of 8 July 2004, Application no.53924/00.
3. The point is also true of Commonwealth case law.
4. [1993] Q.B. 204.
5. Notably Watt v. Rama, a decision of the Supreme Court of Victoria, [1972] V.R. 353.
6. The means by which the Court of Appeal and the Commonwealth authorities upon which it draws achieve Lamont J.s' "natural justice" for the child born with injuries suffered at the hands of another's negligence whilst in the womb are notoriously problematic. For instance, as Andrew Grubb has observed regarding another Commonwealth approach, the law of negligence is intended to compensate plaintiffs made worse by another's negligent conduct, yet in such cases "[t]he plaintiff, as a legal person has never been injured". A. Grubb, "Commentary: Pre-Natal and Pre-Conception Injury: X. and Y. v. Pal and Others", 1 Med. L. Rev. (1993) 119, 119, my emphasis.
7. Paton v. B.P.A.S. [1979] Q.B. 276; Re F (in utero) [1988] 2 All E.R. 193.
8. [1993] Q.B. at 226.
9. Third-party liability for prenatal harm and the contrasting maternal-fetal relationship are discussed in detail in R. Scott, Rights, Duties and the Body: Law and Ethics of the Maternal-Fetal Conflict (Oxford: Hart Publishing, 2002) Ch.6.
10. (1981) 3 E.H.R.R. 408.
11. Such as "[i]n defence of any person from unlawful violence". (1981) 3 E.H.R.R. 408. Paras 8 and 9.
12. Ibid. para. 16.
13. Ibid. para. 17.
14. Ibid. para. 19. This was stressed by Staughton L.J. in Re F (in utero) [1988] 2 All E.R. at 201. The point is reminiscent of the Stallman court's emphasis on the intimate physical connection between a fetus and a pregnant woman. For a recent case of a father seeking to prevent an abortion, this time in Scotland, see Kelly v. Kelly, 1997 S.L.T. 896.
15. (1981) 3 E.H.R.R. 408, para. 20.
16. Ibid. para. 22, my emphasis.
17. nd edn) 43. They also note, however, the lack of consensus amongst Member States of the Council of Europe on the moral and legal issues surrounding abortion.
18. rd edn), 301.
19. Supra n.2. Separate Opinion of Judge Costa, joined by Judge Traja, para. 13.
20. I b i d.
21. Ibid. para. 46.
22. Ibid. para. 81.
23. Ibid. para. 80.
24. Ibid. citing Brüggemann and Scheuten v. Germany (1978), (1981) 3 E.H.R.R. 244, my emphasis.
25. Ibid. para. 82.
26. Ibid. para. 84.
27. A. Grubb, "Commentary, Attorney-General's Reference (No.3 of 1994)", 307.
28. See also the discussion in J. Seymour, Childbirth and the Law (Oxford: O.U.P., 2000) 199ff.
29. Supra n.2, para. 85.
30. I b i d.
31. I b i d.
32. Ibid. para. 77, my emphasis.
33. Ibid. para. 87. This was criticised by Judge Ress (dissenting), who states: "As this case illustrates, the embryo and the mother, as two separate 'human beings', need separate protection." Para. 4. He gives no explanation of why this should be the case and I do not see how the facts support this.
34. Ibid. para. 90. Note here that the English criminal case of Attorney-General's Reference (No.3) of 1994), [1997] 3 All E.R. 936, which concerned the criminal liability of a man who stabbed his pregnant girlfriend, of course concerned the intentional infliction of injury. In this case, Lord Mustill rejected "the reasoning which assumes that since (in the eyes of English law) the foetus does not have the attributes which make it a 'person' it must be an adjunct of the mother. Eschewing all religious and political debate I would say that the foetus is neither. It is a unique organism." Ibid. 943.
35. Ibid. para. 91. Further, that an administrative law action was statute-barred was considered reasonable, since the right of access to courts is not absolute.para. 92. She did not timely avail herself of this route, through which she could have established the doctor's negligence and claimed compensation. Ibid. para. 94. This aspect was criticised by Judge Ress (dissenting), who notes that criminal law has an important deterrent role. Ibid. para. 1. The same might be argued, however, of the law of tort.
36. Ibid. para. 95
37. Ibid. Separate opinion of Mr Rozakis, joined by Mr Caflisch, Mr Fischbach, Mr Lorenzen and Mrs Thomassen; (b) separate opinion of Mr Costa, joined by Mr Traja; (c) dissenting opinion of Mr Ress; (d) dissenting opinion of Mrs Mularoni joined by Mrs Strážnická.
38. Ibid. Separate opinion of Judge Costa, joined by Judge Traja, para. 10. See also the dissenting opinion of Judge Ress, para. 4.
39. Ibid. See e.g. the dissenting opinion of Judge Ress, para. 4. See also the dissenting opinion of Judge Mularoni, joined by Judge Stráž nická.
40. Ibid. para 17.
41. Ibid. No paragraph numbering is given in this judgment.
42. The relevant portion of s.1(1) of the Abortion Act 1967, as amended by the Human Fertilisation and Embryology Act 1990, reads: "Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith - (a) that the pregnancy has not exceeded twenty-four weeks and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminate; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped".
43. 120 L.Ed.2d 674 (1992) and 35 L.Ed.2d 147 (1973) respectively. For discussion see R. Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (London: Harper Collins, 1993). Writing on abortion and the decision in Casey, Dworkin has distinguished between the State's "derivative" interest in the fetus, which applies in the abortion context from viability onwards as the fetus acquires interests in its own right, and the State's "detached" interest, developed in Casey, in encouraging responsible decisions which are duly respectful of the value of fetal life, e.g. at 11, 24, 169-70.
44. In Casey, supra n.42, the Court upheld certain restrictions on abortion: it also found "reasonable" certain regulations during the second trimester of pregnancy, namely the mandatory provision of literature on the risks of and alternatives to abortion, a twenty-four hour waiting period before the operation and limits on its availability to minors. In contrast, the Court struck out an obligation that married women seek the formal consent of their partners. In fact it is disputable whether the restrictions which the Court upheld do not in fact create an undue burden on a woman's abortion right.
45. For instance, the dissenting Judge Ress observes: "Even if it is assumed that the ordinary meaning of human life in Article 2 of the Convention is not entirely clear and can be interpreted in different ways, the obligation to protect human life requires more extensive protection, particularly in view of the techniques available for genetic manipulation and the unlimited production of embryos for various purposes. The manner in which Article 2 is interpreted must evolve in accordance with these developments and constraints and confront the real dangers now facing human life. Any restriction on such a dynamic interpretation must take into account the relationship between the life of a person who has been born and the unborn life, which means that protecting the foetus to the mother's detriment would be unacceptable." Para. 5. The dissenting opinion of Judge Mularoni, joined by Judge Stráž nická, observes: "[S]ince the 1950s, considerable advances have been made in science, biology and medicine, including at the prenatal stage. The political community is engaged at both national and international level in trying to identify the most suitable means of protecting, even prenatally, human rights and the dignity of the human being against certain biological and medical applications. I consider that it is not possible to ignore the major debate that has taken place within national parliaments in recent years on the subject of bioethics and the desirability of introducing or reforming legislation on medically assisted procreation and prenatal diagnosis, in order to reinforce guarantees, prohibit techniques such as the reproductive cloning of human beings and provide a strict framework for techniques with a proven medical interest." And later the opinion continues: "[A]s with other Convention provisions, Article 2 must be interpreted in an evolutive manner so that the great dangers currently facing human life can be confronted. This is made necessary by the potential that exists for genetic manipulation and the risk that scientific results will be used for a purpose that undermines the dignity and identity of the human being."
46. [1998] 3 All E.R. 673, 687.
47. [1997] 3 All E.R. 936, discussed in supra n.33.
48. S. Fovargue and J. Miolá, "Policing Pregnancy: Implications of the Attorney-General's Reference (No.3 of 1994)", 6 Med. L. Rev. (1998) 265, 288.
49. [1997] 3 All E.R. 936 at 943.
50. [2003] EWHC 3318.
51. Although the claimant, Miss Jepson, succeeded in obtaining leave for judicial review, the hearing has been suspended pending police investigation into the abortion and may never take place. "Cleft lip abortion to be investigated", The Guardian, 17 April 2004. "Curate postpones cleft palate late abortion action", Daily Telegraph, 9 May 2004. Moreover, given the high standard of proof in criminal proceedings it is possible that a prosecution either will not be pursued, or would be unsuccessful if it were.
52. For discussion of this point, see R. Scott, "Prenatal Screening, Autonomy and Reasons: The Relationship between the Law of Abortion and Wrongful Birth", (2003) Med. L. Rev. 265, 312.
53. Supra n.44 and text.
54. On the link between interests and sentience, see B. Steinbock, Life Before Birth (New York: Oxford University Press, 1992) 24, n.24.
55. On the notion of interests, see J. Feinberg, Harm to Others (New York: Oxford University Press, 1984) 34: "In general, a person has a stake in X... when he stands to gain or lose depending on the nature or condition of X."
56. See C. Williams, P. Alderson and B. Farsides, "'Drawing the Line' in Prenatal Screening and Testing: Health Practitioners' Discussions", (2002) 4(1) Health, Risk and Society 61, 73, for discussion of the value of this.
57. For specific consideration of the information provided in relation to Down's syndrome, see C. Williams, P. Alderson and B. Farsides, "What Constitutes 'Balanced Information in the Practitioners' Portrayals of Down's Syndrome?", (2002) 18 Midwifery 230.
58. T. Shakespeare has addressed the inadequacies of current counseling services, observing that "[d]ecisions about screening should be based on good information: rather than evaluating screening programmes in terms of those who undergo tests and terminations, programmes should be evaluated in terms of the proportion of people who were empowered to make an informed choice". "'Losing the Plot?' Medical and Activist Discourses of Contemporary Genetics and Disability", (1999) 21:5 Sociology of Health and Illness 669, 685.
59. For a detailed discussion of the ways in which information-giving in this context should be developed, see B. Bowles Biesecker and L. Hamby, "What Difference the Disability Community Arguments Should Make for the Delivery of Prenatal Genetic Information", in E. Parens and A. Asch (eds), Prenatal Testing and Disability Rights (Washington, DC: Georgetown University Press, 2000) 340.
60. For discussion see R. Scott, supra n.51.
61. P. Alderson, "Prenatal Counselling and Images of Disability", in D. Dickenson (ed.), Ethical Issues in Maternal-Fetal Medicine (Cambridge: Cambridge University Press, 2002) 195, 203.
62. In favour of the social model see T. Shakespeare, "Choices and Rights: Eugenics, Genetics and Disability Equality", (1998) 13/5 Disability and Society 665, 665
63. (citing M. Oliver, The Politics of Disablement (Basingstoke: Macmillan, 1990)).
64. In favour of the medical model see J. Harris, "Is There a Coherent Social Conception of Disability?", (2000) 26 J.M.E. 95, 99.
65. P. Alderson, supra n.56, 207.
66. T. Shakespeare, supra n.54, 670. In "'Losing the Plot?' Medical and Activist Discourses of Contemporary Genetics and Disability", (1999) 21:5 Sociology of Health and Illness 669, 682, he notes the 'failure of the social model of disability to take account of the salience of impairment in the lives of many disabled people'.
67. 120 L.Ed.2d 674 (1992). In reviewing the idea of a framework in which third parties, such as the State, or family members in the case of minors, may themselves "express profound respect for the life of the unborn", (120 L.Ed.2d at 715) both Blackmun and Stevens J.J. were keenly aware of the need to distinguish neutral medical information legitimately related to health on the one hand and information concerned with moral consequences, coupled with the question of persuasion in relation thereto, on the other.
68. On the development of fetal interests, see supra n.53.
69. J. Nelson, "The Meaning of the Act: Reflections on the Expressive Force of Reproductive Decision Making and Policies", in E. Parens and A. Asch (eds), supra n.54, 196, 207.
70. Separate opinion of Judge Costa, joined by Judge Traja.: "Article 2 cannot be conclusively construed as clearly prohibiting all voluntary terminations of pregnancy, if only because a number of Contracting States have ratified the Convention without any apparent problem, despite already possessing legislation permitting voluntary termination in certain circumstances. Even more persuasive when it comes to an evolutive interpretation of Article 2 is the fact that a large number of European countries passed legislation in the 1970s permitting the voluntary termination of pregnancy within a strict framework." Para. 14. This does not necessarily imply, however, that such states deemed that Article 2 was applicable to the fetus. The judgment continues later: "In other words, those who, in the name of women's freedom of choice, defend the principle of voluntary termination of pregnancy might fear that such legislation would indirectly be at risk if Article 2 was found to be applicable." Para. 15. He does not, however, resolve this point within his judgment.
71. th) 193 (concerning the idea of maternal liability for harm to the fetus from glue-sniffing). In England, on potentially harmful maternal conduct, see Re F (in utero) [1988] 2 All E.R. 193. All of these cases recognise the difficulties of granting legal rights to the fetus. Compare, in New Zealand, In the Matter of Baby P (An Unborn Child) [1995] N.Z.F.L.R. 577. In this case, Inglis J., Q.C., granted the Director General of Social Welfare's (D.-G.S.W.'s) application for a declaration that a pregnant 15 year-old girl, who was already under the D.-G.S.W.'s custody, was in need of care and protection, in the interests of the unborn child: the baby's father, to whom the mother was still deeply attached, had previously attacked her and threatened to kidnap and kill the baby. The legal question in point was whether the fetus (which was viable) was a "child" within the meaning of the Children, Young Persons and their Families Act 1989. In granting the declaration, the judge took note of the fetus's viability, coupled with the lack of any legislative intent to restrict the relevant legislation to born children. Taking note of overseas authority with regard to the lack of fetal legal personhood, he noted particularly that the question of the legal status of the fetus need not be conflated with the question of whether the fetus is a human being entitled to the law's protection. In one sense, this is precisely the distinction drawn, for instance, in the United States, between the fetus's lack of legal personality on the one hand and the State's interest in its potential life on the other. Indeed, the law does protect the fetus, notwithstanding that it is not a legal person, in various ways noted in this article. Thus, as Andrew Grubb notes, the judge in the Baby P case is correct "at one level". "Commentary: Unborn Children: 'Persons' and Maternal Conduct: In the Matter of Baby P (An Unborn Child)", 5 Med. L. Rev. (1997) 143, 144. Yet, for the purposes of the relevant legislation in that case, the fetus's lack of legal personhood was critical and hence the judge was wrong to deem that the fetus could be protected in the manner sought. An additional factor influencing Inglis J., Q.C.'s reasoning was that in the instant case there was little, if any conflict between the interests of the mother and the fetus. On the specific and unusual facts of the case, this appears to have been so. However, as Andrew Grubb notes, the difficulty with the case is that it "runs the risk of creating a conflict with the mother's own interests". (Ibid.)