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Law Notes Medical Law Notes

Abortion Notes

Updated Abortion Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest...

The following is a more accessible plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

  • 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

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

  2. 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

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

  2. 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

  1. 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!

  1. 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

  1. Mid Ground – even if doesn’t begin @ conception, has moral value on acc of symbolic status as representing the beginning of human life...

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