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THE FETUS; ABORTION; INFANTICIDE
1. The Status of the Fetus
Attorney-General's Reference (No 3 of 1994)  AC 245: D stabbed pregnant woman in the abdomen. She went into labour 16 days later and gave birth to a grossly deformed child who later died. He was then charged with murder and convicted by the House on a charge of manslaughter. o Lord Mustill: Fetus and mother have a relationship of bond but not identity; they are two distinct organisms living symbiotically; it is a unique organism which is neither separate from nor an adjunct of the mother. o Lord Hope: It is not sensible to say that a fetus can never be harmed as anything dangerous which happens to it may be carried forward into the life which follows; when born is within the scope of the mens rea.
Evans v Amicus  EWCA Civ 727: Couple consented to the freezing of embryos whilst F underwent treatment for cancer. When the treatment was over the couple split- M wrote to the clinic to say that they should be destroyed. F applied for legal proceedings to stop that happening as it was her only chance of having a child. Claim on the basis of statutory construction and in the alternative, the Human Rights Act. o Thorpe & Sedley LJ:
? Once mutuality is required at the point where treatment services are being provided the requirement of continuing consent is inescapable; effect of F's withdrawal is that must be destroyed.
? To dilute the requirement in the interests of proportionality would create new difficulties of arbitrariness and inconsistency. Sympathy is not enough to make the Act disproportionate. o Arden LJ:
? For many purposes, the viability of a foetus is taken as the benchmark for determining the legal status of a child. Do not have any scientific detail and so proceeds on the basis that while an embryo has the potential to become a person it is not itself that person: further changes must take place; therefore rejects the argument that an embryo has a qualified right to life under Article 2.
? Also holds that the interference with the Article 8 rights of M is justified in the present case.
? Further rejected argument that estoppel could be used as thought contrary to public policy to do so.
Evans v UK (2006) 43 E.H.R.R. 21,  1 FLR 1990: On the issue in the above case as to whether an embryo has a right to life and whether UK law had infringed this right. Also query as to infringement of Article 8. o In the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that states should enjoy in this sphere; English approach is acceptable. o Also thought that margin of appreciation applied in the Article 8 context; thought significant that there was the possibility for a substantial lapse of time and therefore thought right that the UK had legislated.
Vo v France  2 FCR 577: Following medical negligence A suffered injury to her amniotic sac, which necessitated the termination of her pregnancy. The foetus was between 20 and 24 weeks at termination. The doctor was charged with causing unintentional injury but was acquitted on the grounds that the foetus was not, at that stage, a human person. o Once again noted margin of appreciation; but chose to inconclusively rule that an unborn child is not a person directly protected by Article 2; even if it were its interests would be limited by those of the mother. o However, may be exceptional cases where safeguards are extended to the unborn child; issue would be answered by weighing up rights vis-a-vis the mother or father in relation to the unborn child. o Convention is a living instrument.
Re F (in utero)  Fam 122: LA was concerned that a pregnant gypsy would neither take sufficient care nor seek medical attention for the well-being of the child at the time of birth and thereafter. Might have been mental.LA needed an order of the court authorising them to find the mother and to ensure that she attended hospital for the birth of the child. They applied ex parte for leave to issue a summons making the foetus a ward of court. o There is no jurisdiction to make an unborn child a ward of court; it has no independent existence. o If the law is to be extended in this manner, then it is for Parliament to decide whether such controls can be imposed and, if so, subject to what conditions in light of the impact upon individual liberty.
J. Herring, (2011) 'The Loneliness Of Status: The Legal And Moral Significance Of Birth': Argues that legal rights and duties should not flow from individual status, but from the relationship. o Just as with the definition of death lawyers seem tempted to fudge the question and leave it to medical experts. o Notes that in family law now many rights and responsibilities of parents stem from a particular relationship with the child rather than as their status as parents. o Following are problems in seeing fetal status individualistically:
? Ignores biological reality of interconnection between fetus and the pregnant woman;
1 Fails to capture the circumstances in which the fetus came into being; Identity comes more from relationships than any inherent characteristics; Downgrades the weight attached to the interests of the woman;
* Should consider emotional and physical reality of the choices that a woman makes;
* Should recognise that pregnancy creates responsibilities because of the relationships. Relational approach explains the significance the law attaches to birth:
? The pain, interconnection and invasion which occur during pregnancy which should play a significant role in determining legal and moral responses to actions are dramatically changed at birth.
? Birth ends the blurring of identity which pregnancy can cause.
? It is important to see pregnancy in the wider social context; the nature and obligations of society and others who surround the woman are changed by birth. A new set of expectations and norms arise.
? Care by people other than the pregnant woman becomes feasible e.g. court, family, strangers.
? The enormity of the birthing process itself changes the relationship between the parties. Thus, the significance of birth lies not in the change of capacities, but in the dramatic relational impact it has. Women's relationships with their foetuses differ greatly; a relational approach can capture this well. Should not talk in language of viability and right, but connection, ecstasy and despair.?o
o o o
Abortion Act 1967 Abortion Regulations 1991, SI 1991/499
Paton v BPAS  QB 276: H brought an action for an injunction to restrain the wife from having an abortion. o Judge noted that whilst the case concerned moral issues the task was to apply the law free of emotion. o Fetus cannot have a right to life until born and in separate existence from mother; this permeates English law and is also the stance adopted in other jurisdictions. o A court would ever grant an injunction to stop sterilisation or vasectomy. Personal family relationships in marriage cannot be enforced by the order of a court. Husband cannot by law stop his wife by injunction from having what is now accepted to be a lawful abortion within the terms of the Abortion Act 1967.
Jepson v CC West Mercia  EWHC 3318: Challenge was brought by a person on the basis that an abortion had been carried out after 24 weeks, the reason being that the fetus had a cleft lip. The applicant considered that it could not amount to a serious handicap within s1(1)(d) of the Abortion Act and that the abortion must have been unlawful. o The Claimant was given leave to bring the judicial review application as the judges believed that it raised serious issues of law and public importance. o In the face of the application the CPS decided to reopen the case but concluded that there was no evidence that the doctors concerned had not formed in good faith the view that the child would be seriously handicapped.
Janaway v Salford  AC 537: A was employed by R as a medical secretary. She was asked to type a letter from a GP referring a patient with a view to a possible termination. She refused to do so, stating that she was entitled to exercise the right of conscientious objection set out in section 4(1) of the Act. She was dismissed. o Participate should be read as natural meaning; did not think that secretary really participated in abortion. o Clear that Parliament intended to limit the scope by making it clear that must be linked to the treatment, rather than saying that the right of objection extends to anything authorised within the scope of the Act.
R (Axon) v Secretary of State for Health  EWHC 37 [in tutorial 1]: Mother sought review of guidance which said that young people could be provided with confidential treatment on matters of sexual health. Wanted assurance that she would be consulted in the event that her daughters sought treatment. o If the medical professional was entitled or obliged to tell a parent sexual matters that the young person had told the doctor in confidence in these circumstances then it would follow that the Gillick case was wrongly decided. o The very basis and nature of the information which a doctor or a medical professional receives relating to the sexual and reproductive health of any patient of whatever age deserves the highest degree of confidentiality and this factor undermines the existence of a limitation on the duty of disclosure. o Any interference with a parent's rights under article 8(1) would be justified under article 8(2) as being in accordance with the law and necessary in a democratic society for the protection of health or for the protection of the rights of others and was proportionate. o The guidelines are not to be regarded as a licence for doctors to disregard the wishes of parents but must be strictly observed and, if they are not, the medical professional concerned can expect to be disciplined.
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