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The Legal Status Of The Foetus And Abortion Ethics Notes

Updated The Legal Status Of The Foetus And Abortion Ethics 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).

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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...

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