#3532 - Abortion - Medical Law

• Abortion v Contraception – implantation (fertilised egg moves into & attaches itself to the womb) (R (John Smeaton) v Sec of State for Health

Legal Status of Foetus

• Not a person but not nothing either

• AG Ref (No3 of 1999) – D stabbed a pregnant woman, baby born but died = manslaughter; foetus not a part of mother – relationship special but one of bond and not identity. Foetus = a sui generis organism

• No interests warranting legal protection

• Can’t be made a ward of court(ReF (in utero))

• No rights capable of being protected by others(e.g. father can’t seek injunction to prevent abortion in his name)

• Embryo isn’t a person+ has no rights under ECHR

• Evans v Amicus – woman not allowed to use b/f’s frozen eggs after they’ve divorced w/out his consent, although otherwise infertile. She had a right under Art 8 to reproduce to be balanced against b/f’s right not to. HFE Authority has a reasonable approach to balancing these – not contrary to ECHR b/c legal certainty & need for public confidence in reproductive services justified it.

• Vo v France – French law by not providing for offence of unintentional destruction of foetus wasn’t contrary ti Art 2 ECHR (right to life) but no clear ruling on legal status of foetus

Abortion Law

• A crim. offence unless Abortion Act 1967 provides a defence

• Offences

1. S58 OAPA 1861 – administering drugs/using instruments to procure abortion

• can be committed by pregnant woman/someone else w/intent to procure miscarriage

2. s59 OAPA 1861 – supply of drugs, substances, instruments for unlawful abortion

3. s1 Infant Life Preservation Act 1929 – any person w/intent to destroy life of child capable of being born (28 weeks, unless proven otherwise) by a wilful act causing him to die b/f he exists independent of his mother

• Defence

• Necessity – available to doc charged w/carrying out or procuring miscarriage + requires that probable consequence of pregnancy was to make woman a physical or mental wreck

• Legal Abortion – 4 Requirements

1. Done under authority of registered med practitioner

2. In NHS hospital/approved place

3. 2 med practitioners agree on statutory grounds in s1(1)(a) permitting abortion

• Can be 2 different grounds

1. Risk to mental & physical health of the woman/her existing kids

• unless pregnancy post 24 weeks

2. Doc in good faith believes there’s risk of grave permanent injury

3. Substantial risk child would suffer physical/mental abnormalities as seriously handicapped

• No time limit

• Serious handicap = assisted/dependent performance

• Jepson v CC of West Mercia Police– abortion performed by doc b/c foetus suffered from left clip justified b/c no evidence that doc hadn’t formed a view in good faith that child would be seriously handicapped

• Must notify relevant authorities of grounds + method used

• Emergency Abortion (s1(4)) – one doc + doesn’t need to be in approved place

• Conscientious objection by doc/staff (s4)

• Injunctions by TPs to prevent abortion

• Rare – difficult to get standing, whether claiming in own right or on behalf of foetus

• Challenge brought by AG or CPS + could follow up w/JR

• Paton v Trustees of BPAS – father couldn’t obtain injunction to prevent abortion + couldn’t claim on behalf of foetus b/c not a legal person & had no standing

• Incompetent Ps

1. Adults

• If it’s in P’s best interests, can abort w/out court order

• Unless med opinion is divided or family strongly opposed

2. Minors

• Under 16 – doc can abort w/out parents’ consent if P:

1. Gillick competent

2. consented

3. in her best interests

• R (Axon) – mother had no right under HRA 1998 to be informed of daughter’s decision to seek abortion – strong right to confidentiality + public interests concerns re access for youths to docs

• Gillick competent + no consent – doc can abort if

1. Someone w/parental resp. consents

2. In P’s best interests

• Or court order ...

• Assessment of 1967 Act

• Medicalised model – doc’s judgment is key to legality + v. difficult to show illegality b/c must show doc didn’t think grounds were made out!

• Sheldon: if law seeks to protect/entrench any rights, it’s not those of the woman or foetus but of the doctor instead

• Act didn’t liberalize but established a more rigorous system of med control over woman’s fertility (Sheldon)

• Benefit: doesn’t allow men to challenge legality

• Act is surprisingly loose - decisions made in private + no requirement to notify + v. ltd grounds for challenging

• In practice - very few obstacles for woman wanting an abortion b/f 24 weeks

• Elected/forced C sections

1. Competent P – can’t be compelled even if risk to life exists

2. Incompetent P – can be compelled if it’s in her best interests

• St George’s Healthcare Trust v S– above

• Winnipeg v G– glue sniffer case

• Scott: a woman who elects to carry foetus to term isn’t @ the same time undertaking to do whatever is required to protect him/ensure he’s born alive, notwithstanding her moral duty to do so. She can’t be expected to make extraordinary sacrifices.

Abortion (Ethics)

• Main schools of thought

1. Pro life – right to life of unborn child

2. Pro choice – woman’s right to choose (choice = fundamental aspect of human freedom)

3. Dworkin’shuman/natural investment mid view - both value sacredness of life but disagree on which aspects: natural investment or human investment (including matters of input & added value)

• When is foetus a person?

1. At conception

1. For

1. Entire genetic makeup is complete/ apart from growing, nothing will be added/taken away thereon

2. Don’t know for sure when life begins so safest to assume it’s at conception

• NB: Assumes there’s a clear point @ which personhood begins

• NB: Conception isn’t the bright line it’s claimed to be – it occurs over time!

2. Against

1. Usual fate of fertilised egg is to die – means majority of people die within first few days

2. Means IVF + many other forms of contraception are immoral

3. Mid Ground – even if doesn’t begin @ conception, has moral value on acc of symbolic status as representing the beginning of human life & deserving respect as a result

• Harris: embryo isn’t in itself of value, even if you think it represents something valuable

2. Viability – uncertain/could depend on geographical location & available resources

3. Sentience – BD means death so brain activity makes a start of life

4. Birth

5. After birth – not a person until a rational & conscious being

• Means disabled people aren’t people & infanticide isn’t a crime!

6. Gradualist view – the older the foetus, the greater respect is due

• Foetus human organism person

• Argument based on relevant characteristics – no focal point @ which becomes a person

• why stop @birth? Why can’t say 15 years old teenager is worth more than 3 month old baby? What’s so special about birth that gradualist development should stop?

• highly individualistic + ignores biological reality (no line defining change b/w foetus & person) + elevates viability, consciousness etc. privileging intellectual values over others

• no weight attached to the role of woman in creation and sustenance

• It’s not how pregnancy is experienced – instead, it is experienced as a relationship not a separate affair of two sets of rights of mother and foetus

7. Relationship view – status can’t be considered in isolation of the woman since she isn’t a foetal container

1. For

1. Foetus isn’t merely “in her” as an inanimate object – it’s “of her” and hers more than anyone else’s b/c it’s her creation, resp. and it’s alive b/c she made it come alive (Dworkin)

2. Emphasis on shared needs & interdependence + relationship characterised by connectedness, mutuality & reciprocity (Seymour)

2. Against

1. Doesn’t point to either direction in the debate! (Herring)

3. Herring’s version

1. Need to look at relationship b/w woman & foetus + what rights and responsibilities it generates; i.e. rights flowing from relationship. Status is irrelevant – it’s not who they are as isolated individuals.

1. Allows law’s response to wanted pregnancy to be different from unwanted one

2. Argues for Liberal abortion law – huge burdens are expected of a woman on current laws

3. Explains the significance of birth – at time of birth, there is a fundamental relationship shift and rights and obligations expected thereafter become different

2. Criticism:

1. It’s presented as a relationship but the only voice we can hear is the woman’s voice – the foetus has no representation, so it is unbalanced

2. Should you then allow abortion even shortly before birth? H: if we compare this to other areas of law, it doesn’t compel people to carry burdens of such nature (legal point not a moral one)

8. Property model – foetus is mother’s property

• Explains why law should protect foetus against TP’s interference (Ford) + doesn’t lead to conclusion that it has no interests (as property, it has value & interests warranting legal protection)

• May not accord w/how women view pregnancy

9. Foetus’ potential as a person – the greater likelihood of it becoming a person, the greater value it has (a form of gradualist view)(Nobbs)

• But where to draw the line? i.e. can say refraining from sex = depriving someone of future!

• It’s a human being w/potential not a potential human being (Finnis)

10. Depends on whether foetus is wanted

• Wolf: so what will it be – wanted foetuses are charming, complex, REM dreaming little beings whose profile in the sonogram looks like Daddy but unwanted are mere uterine material?

• Justifications for Abortion

1. Woman’s right to choose

• 2 views

1. Foetus has no rights/interests until birth

2. Foetus has rights to be treated as a person which are trumped by woman’s rights to...