#1760 - The Legal Status Of The Foetus And Abortion Ethics - Medical Law

The legal status of the Foetus and Abortion Ethics

The law and the foetus

• The foetus is not a person, but this doesn’t mean it’s nothing

  • Paton

    • Baker P

      • The foetus cannot, in English law, have any right of its own at least until born and has a separate existence from the mother

  • AG ref (3/1994): D stabbed V, a pregnant woman, injuring her and her foetus. The child was born but shortly afterwards died. The man was charged with murder, although the HoL emphasised this could only be of a human being. The killing of a foetus was not murder until it was born and subsequently died.

    • Lord Mustil

      • The emotional bond between M and unborn child is of a very special kind – but it was one of bond, not identity

        • M and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. M’s leg was part of the mother, her foetus was not.

      • The foetus does not for the purposes of the law of homicide or violent crime have any relevant type of personality,

        • But is an organism sui generis lacking at this stage the entire range of characteristics both of the mother and the complete human being it will later become

          • The fact that it is not a “person” does not make it an adjunct of the mother. It is a unique organism

      • Does have some interests protected – not like M’s arm or leg.

  • In UK, OAPA 1861 offences –offences acknowledge that foetus not a person, but certainly something of value –

    • M herself cannot procure miscarriage herself – not a matter of choice

• The foetus’ rights cannot be used a tiebreaker between two adults, and can’t be subject to warship before birth

  • Evans v Amicus: E and J had been married, and had fertilised embryos together before E became infertile from cancer treatment. However, they later separated and J wanted the embryos destroyed. E could not have children through any other means, and stated that thought both E and J’s rights conflicted, the foetus itself had rights.

    • Thorpe LJ

      • Prior to the moment of birth, domestic law has repeatedly stated that the foetus does not have independent rights or existence.

        • Art 2 protects the right to life, but no Convention jurisprudence extends that right to an embryo

          • Much less one which at the material time is non-viable.

    • Herring: Thorpe LJ perhaps a little quick to deal with the issue

      • While the foetus is clearly established as not having rights which trump those of the autonomy of the mother (Confirmed in St George’s NHS Trust – W has right to refuse C-Sec, even if foetus will die otherwise)

        • This does not mean that the foetus has no rights at all.

  • Re F – pregnant woman took drugs and lots of alcohol during pregnancy. LA wanted to make foetus a ward of the court

    • Court = nope. Foetus can’t be a ward, would infringe right of mother

• The view of the ECHR

  • Vo v France –Doctor’s negligence led to termination as he got the wrong patient and attempted to remove a contraceptive coil which wasn’t actually there. It was held that doing this was not a crime within French law.

    • ECtHR (maj)

      • French law does not violate the foetus’ rights under Art 2, but we won’t make a clear ruling on the status of the foetus under the ECHR

        • It isn’t a person, but open question whether foetus can claim some version of Art 2 rights

          • However, these would always be subject to M’s rights.

      • When life begins comes within a margin of appreciation, which each State must decide for itself

        • It would be reasonable to either protect or not protect the foetus in some way

        • The potentiality of the foetus, which is agreed in most states, says it is worthy of some protection under human dignity

          • But there’s no need to provide criminal law sanctions if it is protected adequately under civil law.

    • Judge Reese (dis)

      • Perfectly possible to hold that foetus protected under Art 2

        • Could be a different case where M harms her foetus and a 3P does

        • Civil law protection is inadequate

    • Judge Mularoni (dis):

      • If the foetus has no rights, then there would be no need to regulate abortion and restrict it

        • The fact that all signatories have such legislation shows a consensus that the foetus has some kind of rights.

• 3P distinction?

  • Mason: English law is inconsistent –

    • We will protect foetus that are badly injured but are able to be born alive and then die

    • But we won’t protect foetus’ which are so badly injured, they die in the womb

  • O’Donovan: The decision of the ECHR and English law is too concerned with avoiding interference with abortion law

    • The case is one where W’s bodily integrity is interfered with, as this is a wanted pregnancy

      • Therefore, such a wrong against W should be recognised in the law.

Abortion Ethics

What is the status of the foetus?

• The foetus is a person from the moment of conception

  • Three different argument about conception

    • 1. The foetus is a person at conception

    • 2. The foetus is not yet a person at conception, but has the potential to be

    • 3. Since we don’t know when life begins, it is safer to assume that it begins at conception

  • Arguments in favour of regarding the foetus as a person from the moment of conception

    • Beckwith: The entire genetic makeup of a person is complete from the moment of conception

      • Finnis: Apart from growing and developing there is nothing that will be added or taken away in genetic terms from a person

      • BUT this may not be true until the “primitive streak” that occurs 14 days after conception

    • Koop: My question to a pro-abortionist friend would be: “would you kill a baby a minute before birth? How about a minute before that? And a minute before that?”

      • There must be a clear point in time when personhood occurs, and conception provides the easiest line for it to be drawn.

      • BUT Stretton: conception is not as bright line as is often assumed.

        • Conception and fertilisation take place over a period of time, and it might be difficult to pinpoint the moment during conception when personhood occurs and when it does not.

        • Also, at early stages of conception, vast majority of cells go to make up the placenta and amniotic sac rather than the later embryo.

  • The foetus has moral claims based on its potentiality

    • Treating the foetus as a person from the moment of conception is that even accepting that at conception a foetus is not a person

      • It has the potential to become a person

      • We must therefore respect the foetus, not for what it is, but for what it has the potential to come

        • You are depriving foetuses of the future lives they would have had.

    • What do we see killing as wrong?

      • Interfering with other’s ability to self-determine? Depriving them of a future?

    • BUT Savulescu:

      • Taking this argument to its logical extreme, not having intercourse is potentially denying someone life and therefore is immoral

    • Nobbs: Greater value, the closer to reaching potential that foetus gets

      • Dworkin: whether abortion is against the interests of the foetus must depend on whether the foetus itself has interests at the time the abortion is performed

        • Not whether interests will develop if no abortion takes place

  • Playing it safe

    • Brazier:

      • Perception of the status of the embryo derives in many cases from the presence or absence of religious belief... the dispute reaches a stalemate

        • The humanity of the embryo is unproven and unproveable, but that acts both ways

        • Just as I cannot prove humanity was divinely created, it cannot be proved that it is not so

      • Therefore, if we don’t know when a foetus becomes a person, is it not better to resolve the dispute in favour of life?

    • BUT Thompson:

      • Restrictive regulation of abortion severely constrains women’s liberty

      • Severe constraints on liberty may not be imposed in the name of considerations that the constrained are not unreasonable in rejecting

      • The many women who reject the claim the foetus has the right to life from the moment of conception are not unreasonable in doing so.

    • Beckwith: Wouldn’t operate a shooting range close to a school if there was a chance of a child being killed

      • Therefore we should not allow abortion if there is a small chance the foetus is a person

      • BUT: not an exact an analogy – those who are prevented from being shot are not causing a severe lack of liberty as a result

    • Brazier:

      • If a building is about to be demolished and somebody sees movement in the building and thinks they might have seen a person, do we send a person into check, despite the building’s state of disrepair?

        • If it was just a few minutes of inconvenience to someone to check, then we’d probably run in and check, UNLESS there was a risk of serious injury

          • Therefore, we would allow abortion perhaps to prevent death or serious injury, but not otherwise

• Foetus becomes a person at fourteen days/ at human appearance

  • The primitive streak appears at 14 days, as this is where it becomes clear whether twins will result or not

    • At this point we have a clear indentified genetic person

    • However, unclear when this primitive streak develops.

  • OR Burgess: Cardio-vascular system begins to develop at 6 weeks, death normally signalled by heart stopping – therefore this point is “killing”

  • OR Penner and Hull: Brain receptors appear at 23 weeks.

• Foetus becomes person at Viability/sentience/birth

  • Viability

    • Lee et al: At viability, the foetus becomes capable of existing independently of the mother (with appropriate medical support) – about 22 weeks

      • At viability the foetus becomes a person

      • At viability M is entitled to withdraw her support (i.e. give birth) but not kill the foetus

    • Problems:

      • Can be difficult to know this

      • Also, will...