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Legal Status Of The Foetus Notes

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THE LEGAL STATUS OF THE FOETUS

CURRENT LAW a) 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' b) FOETUS HAS NO RIGHTS i) Evans v Amicus - Thorpe LJ: foetus doesn't have any independent ii)

rights/interests Re F: foetus can't be made ward of court (so can't be under court's

iii)

legal protection), it should be for Parliament to decide otherwise 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 c) BUT FOETUS IS NOT NOTHING: i) St George's v S - Judge LJ stated that 36 week year old is, 'not ii)

nothing: it is not lifeless and is certainly human' 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 d) ECtHR - UP TO STATES TO DECIDE i) 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 ii)

Art 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'

iii)

the question fell to States' margin of appreciation Mason (2005) - court's failure 'long journey to the pub with no beer'

1 e) R(Smeaton) - line between contraception and abortion is before and after implantation, respectively (as opposed to pre + post conception)

GENERAL OPENING REMARKS a) 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 b) 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 c) Have to address various stages proposed d) 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 a) conception > fertilisation (up to 24 hours) > implantation > primitive streak (around 14 days after conception) > viability > birth (normally around 38 weeks)

MOST POPULAR STAGES PROPOSED a) CONCEPTION i) 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 corpseas 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

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