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The Legal Status Of The Foetus And Abortion Ethics Notes

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The legal status of the Foetus and Abortion Ethics The law and the foetus

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The foetus is not a person, but this doesn't mean it's nothing o Paton
? Baker P

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

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

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

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Does have some interests protected - not like M's arm or leg. o 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

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

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Prior to the moment of birth, domestic law has repeatedly stated that the foetus does not have independent rights or existence. o 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 nonviable.
? Herring: Thorpe LJ perhaps a little quick to deal with the issue

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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 CSec, even if foetus will die otherwise)

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o 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)

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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 o 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.

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When life begins comes within a margin of appreciation, which each State must decide for itself o It would be reasonable to either protect or not protect the foetus in some way o 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)

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Perfectly possible to hold that foetus protected under Art 2 o Could be a different case where M harms her foetus and a 3P does o Civil law protection is inadequate
? Judge Mularoni (dis):

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

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

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