#10039 - Legal Status Of The Foetus - Medical Law and Ethics

THE LEGAL STATUS OF THE FOETUS

CURRENT LAW

1. Burton v Islington Baker P - English law is clear that foetus is not a person until it is born and ‘has a separate existence from the mother’

2. FOETUS HAS NO RIGHTS

1. Evans v Amicus – Thorpe LJ: foetus doesn’t have any independent rights/interests

2. Re F: foetus can’t be made ward of court (so can’t be under court’s legal protection), it should be for Parliament to decide otherwise

3. St George’s v A (CA) – woman at 35 weeks pregnant told she needed a caesarean but demanded the baby be born naturally, even though risk to baby and mother as a result. Declaration was given that the caesarean was permissible, however, after the birth judicial review held that this was unlawful

3. BUT FOETUS IS NOT NOTHING:

1. St George’s v S - Judge LJ stated that 36 week year old is, ‘not nothing: it is not lifeless and is certainly human’

2. AG’s Reference (No 3 of 1994) – HL – where D stabbed pregnant woman – Lord Mustill foetus was a unique organism which is neither separate from nor an adjunct of the mother

4. ECtHR – UP TO STATES TO DECIDE

1. Vo v France – French case, due to mix-up, doctor pierced patient’s amniotic sac, making a therapeutic abortion necessary – Case brought before ECtHR but majority refused to make a clear ruling on the status of the foetus – so foetus does not currently have a right to life under Art 2

2. A, B, C v Ireland – Grand Chamber confirmed Vo stating that as there was ‘no European scientific or legal definition of the beginning of life’ the question fell to States’ margin of appreciation

3. Mason (2005) – court’s failure ‘long journey to the pub with no beer’

5. R(Smeaton) – line between contraception and abortion is before and after implantation, respectively (as opposed to pre + post conception)

GENERAL OPENING REMARKS

1. Topic important as it impacts on whether Abortions should be permissible. If the foetus is held to be distinct legal person with rights that should be recognised by court, this impacts on a woman’s right to bodily integrity

2. Also impacts on debates about dying. John Burgess (2010) – tries to suggest there should be some consistent factor for point of death and point life begins

3. Have to address various stages proposed

4. Herring (2012) – there is a general agreement that the foetus is living and human, the debate really is whether the foetus should be regarded as a person

GENERAL FACTS

1. conception > fertilisation (up to 24 hours) > implantation > primitive streak (around 14 days after conception) > viability > birth (normally around 38 weeks)

MOST POPULAR STAGES PROPOSED

1. CONCEPTION

1. Genetic Argument

• Beckwith (2007) – entire genetic make-up of a person at this point BUT Reiman (2007) – corpse has same genetic make-up as person but we do not attach the same moral status to a corpse as person

• Kaczor (2011) – foetus is a whole completed organism at conception, not just a collection of human cells BUT Stretton (2008) – most cells for placenta and amniotic sac at this point

• Religion – most religions take birth as it’s at this point, although Judaism in line with current law (ie. not until birth that a foetus becomes a person)

2. Potential

• This argument is used most commonly for conception, but Nobbs (2007) using it suggest that the further along more respect as greater potential

• Marquis (2006) – foetus has potential for personhood BUT

• Savulescu (2002) – taking the potentiality argument to logical limits = refrain from sex is bad

3. Demarcation Point

• Koop (1978) – no other clear point in time to say that a foetus’ personhood begins BUT

• R (Smeaton) v Secretary of State for Health – Professor Brown quoted most fertisiled eggs die so Herring (2012) – ‘rather odd’ that most people die

2. VIABILITY

1. Lee et al (2005) – they note this as the crucial moment when foetus is capable of surviving independently (roughly 22 weeks in the UK) BUT

2. Cave (2004) – difficult to know whether foetus could survive

3. Watt (2002) – should moral status depend on geography?

4. arguably this point is acknowledge by s1(1)(a) Abortion Act 1967 up to 24 weeks

3. BIRTH

1. Charles Foster (2009) – should journey of a few cms make moral difference BUT

2. Herring (2011) – birth marks fundamental change in relationship of mother and foetus

3. Norrie (2000) – law often uses arbitrary points (18^th birthday)

4. MENTAL STATE – SENTIENCE or AFTER BIRTH

1. Sentience at around 20-24 weeks although debated

2. Fletcher (1979) – personhood essential features are viability, consciousness and self-determination

3. John Harris (1998) – sentience: moral status when in possession of features which make adults individually morally more important than sheeps and goats,

4. Harris (1999) – after birth: when baby has rationality and self-consciousness which newborn babies lack

5. Unascertainable though?

6. Maclean (1993) – could make infanticide (intentional killing of babies) permissible so should be rejected

7. Feder Kittay (2005) – dangerous to have category that could exclude some due to mental illness

8. ME: arguments relying on mental state justifying our personhood could lead to justification for seeing mentally impaired as less than people

OTHER STAGES PROPOSED

1. 14 DAYS

1. where primitive streak appears

2. McMahon (2002) – embryo becomes distinct entity at this point

2. QUICKENING – ie. mother feels foetus moving inside her

3. HUMAN APPEARANCE

1. Kirklin (2004) – much made of photos of foetus waving and smiling

2. Wolf – if foetus is wanted it’s a charming, REM dreaming little being whose profile is compared to parents. If unwanted, they are mere uterine amterial

GRADUALIST VIEW

1. Feinberg (1992) – move away from having to locate a point in time when foetus becomes a person

2. BMA (2004) - older the foetus, more respect due to it

3. Scott (2002) – this view takes account of relationship view and considers the moral quality of the pregnant woman’s actions

4. Mackenzie – more in line with mother’s perspective

PROPERTY MODEL

1. Mary Ford (2005) – foetus is property of the mother

2. Herris (2012) – but few women would think this way

RELATIONSHIP VIEW

1. Herring (2011)

1. legal rights and duties should flow from relationships, not individual status

2. This explains birth, as the change in relation

3. Language of viability and right is misleading

4. Serves to downgrade mother – Annas (1986): mother is not simply a foetal container

5. Failure to acknowledge relationship ignores biological interconnection

2. Dawn Johnsen (1986) – allowing woman and foetus to be recognised separately only allows state to control woman’s behaviour during pregnancy

3. Herring – however problem with this view is that it doesn’t point to either view in the debate.

PLAYING IT SAFE

1. Brazier

• doubt means favour life ANALOGY:

• if a building is about to be destroyed and someone thinks they see a person inside do we stop? SIMILAR TO

2. Beckwith (2007) – shooting range analogy BUT

3. Thompson (1995) – favour liberty

VIOLINIST

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