For some, the respect for human life leads them to believe that even contraception should be regarded as ethically unacceptable. Others consider that human life and

therefore respect for its sanctity begins only at birth.


How does the law in England and Wales treat the unborn?


Would you advocate any change?




“ It is equally as heinous intentionally to kill a human being in existence at fertilization, as to kill a larger pre-born child” (Nellie Gray)

Was commentator Nellie Gray correct? Some describe abortion as an evil of society-as murder against the most innocent of all, the unborn. Others describe it as merely another operation with no more moral implications than most others. Whatever the law, this emotive issue creates a divide that is unlikely to change. Should the mother have supreme jurisdiction over what happens to her body? What about when her body contains a separate life? Whose interests should be followed-the mothers or the childs?


Abortion is currently legal but lies within certain restrictions. The current legal status appeases both sides of the debate: the ‘Pro Life’ supporters who are against abortion and the ‘Right to choose’ supporters who are in favour of abortion.


The view on abortion has considerably changed over many years’ as has its legality. The first notable legislation on the issue was the Offences Against The Person Act 1861. Section 58 of the Act, provides that it is an offence for a pregnant woman to give herself poison or to unlawfully use an instrument or other means with intent to procure a miscarriage. Section 59 of the Act also provides that it is an offence to knowingly aid an abortion. The view at the time and even over a century later was very strongly pro-life. In 1968 in R V Price, a doctor was convicted for attempting to give an abortion to a patient who despite his belief was not actually pregnant.


This legislation still left gaps in the control over life. Whilst it controlled the rights of the foetus, rights of a born baby were controlled by the criminal law. However, there was no law protecting the baby whilst it was being born. This was solved by the Infant Life (Preservation) Act 1929. Section 1 provides-


(1)…any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction…


(2) For the purposes of this Act, evidence that a woman had at the material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at the time pregnant of a child capable of being born alive


However, it should be noticed that the morality of the issue of abortion has considerably changed over time. In 1938 in R V Bourne a doctor was acquitted of performing an abortion on a 14-year-old girl who had been raped. The court decided that the term “for the purpose of preserving the life of the mother” could be understood as including the mental health of the mother that was at threat. The burden of proof was then on the prosecution to prove that the abortion had not been carried out in good faith. Though the morality of this judgment may have been justified, the reasoning was flawed. I do not believe that Parliament at the time of the 1929 Act intended the provision to include the mental health of the mother. In this case, the boundaries of Judicial Interpretation were stretched a little too far to cater for the judges’ personal view. The court usurped Parliament because legislation had fallen behind widespread opinions on the issue.


The major milestone for the supporters of the ‘Right to choose’ camp has been the 1967 Abortion Act. This legislation made abortion legal under certain criteria. The Act was amended by the Human Fertilisation and Embryology Act 1990, s 1(1) which provided that a registered G.P could terminate a pregnancy if two doctors agreed that one of the following applied-


-the pregnancy had not exceeded 24 weeks (note that this was reduced from the 28 weeks in the 1929 Act) and continuing it would involve greater risk to the mother than ending it


-continuing the pregnancy would give grave permanent injury, whether physical or mental to the mother.


-continuing the pregnancy would involve greater risk to the mothers life than ending it would and


-the child if born would likely suffer from great physical or mental abnormalities giving it a negligible quality of life.


This legislation throws up many moral and legal questions. Firstly the qualification of 24 weeks not having been met cannot be certain. Doctors can only estimate the time of conception. If they are wrong by a few days, one person may qualify whilst another does not despite being of the same gestation period.


The Mothers mental future mental health in the event of a child being born has to be questioned. Whilst pregnant a woman may wish to abort the child, as it is unwanted. Maybe it was as a result of failed contraception or even rape. However, once the child is born a mother has established a moral bond with the child. Her mentality may then change. Doctors are trained in medicine but not as fortune-tellers and therefore should not be able to play God.


If the mother is likely to suffer mentally by raising a child, the option of adoption is always open. The mother would then not have to suffer from raising a child, but only from carrying it. To save a life as the foetus should normally be perceived to be, is worth the indignity of having to carry a child for nine months. In the event of serious mental scarring of childbirth, such as by carrying a baby conceived by rape, the mothers’ interests are rightly considered priority. In those circumstances abortion is rightly permitted.


Any permanent physical injury to the mother should be qualified as extremely serious for abortion to be acceptable. For example if aborting a foetus will only save the mother from a minor injury, the termination should not be allowed.


It is only right for a child to be aborted on grounds of its promise of quality of life being low, when it is obvious that its quality will be extremely low. This should be in the child’s best interests. The current legislation would allow for a child being born with a broken limb to be aborted. If, however a born child had a broken leg or arm, it would not be considered appropriate for the child to be killed because of it. The law manages to disrespect the unborn easily because we cannot see the unborn. This is only a reason for abortion when the quality of life would be so low that euthanasia is deemed acceptable for a born child with the same disability. Again, this allows doctors to play God in deciding what quality of life is worth living. This is subjective, not objective and should not be decided so freely by doctors.


On a whole, the 1967 Abortion Act is very vague and allows for very loose interpretation. It is so vague that abortion can be granted to almost anybody who asks for it. The sanctity of life is not closely enough adhered to. The foetus is given no rights-


“The foetus cannot, in English Law, in my view, have any rights of its own, at least until it is born and has a separate existence from its mother” (Sir George Baker, Paton V Trustees of BPAS 1978)


A key issue surrounding Abortion is when it is that the foetus becomes a person. To kill a person is murder whilst to kill a foetus is not. Does the foetus become a person at birth or at some point before?


“Whether or not abortion should be legal turns on the answer to the question of whether and at what point a foetus is a person. This is a question that cannot be answered logically or empirically” (Paul Campos).


It is argued that the termination of the life of an unborn child is not wrong because that child is not a ‘person’. Being a ‘person’ involves feeling the emotions of a child. It is argued that a foetus cannot experience emotions such as happiness, sadness, excitement and pain. The foetus, though alive has little to no thoughts. This argument is however flawed. A child who was born an hour ago has no more feelings than a child about to be born in an hour. What gives the one a right to be classed as a person whilst the other is not? If a child can be aborted before birth, the child after birth should have no more rights. By that rationale a mother should be able to choose to terminate the life of a newborn baby if the mothers mental health is at risk. That is of course illegal, and rightly so. The law gives a ‘cut off point’ at which termination of life is no longer acceptable. There should be no cut of point at where a life can be terminated.


Therefore it must be determined at which point ‘life’ exists. ‘Personhood’ is merely a buzz-word created by boffins to rationalise the practise of abortion as morally acceptable. When does ‘life’ first start though? Is it when a child is born? To establish when life first exists, we can look at death. It stands to reason that life will be the opposite of death. There are many opinions on when death occurs, but most widely accepted is at the point of brain stem death (Airdale NHS Trust V Bland). Therefore life exists at the point of brain activity (brainwaves) first exists. In an unborn child, this rests at 47 days after conception. Therefore abortion should be legal under any circumstances within the first 47 days and in limited circumstances after that time period. As the information of the gestation period is not an exact science, this would create some problems. However as most women could not have abortions within this time for practical reasons, this presents only a small problem.


It has been suggested that abortion even before this point is morally wrong because it deprives the world of what would have been a life. Some believe that contraceptive methods such as the ‘morning after pill’ and the Intra-uterine device (coil) are acts of abortion at an extremely early stage of a pregnancy. This interpretation is fundamentally flawed. It presupposes the desire to create life as morally correct. Whilst the bible says ‘Go forth and multiply’, the law does not and rightly so. There is as much justification in saying using the pill is abortion as there is in saying not having sex is morally wrong. We are under no obligation, moral or legal to go forth and multiply. Until the unborn child develops brain waves, it is not alive. There is no life to speak of. At that point the foetus deserves no more respect than millions of dormant gametes waiting to one day have a chance of fertilisation.


Now it is established when Abortion is normally justifiable, individual groups have to be addressed. Should the law on abortion be different for children or incompetents? What are the rights of the father as well as the mother and unborn child? In the medical zeitgeist should sperm donor fathers or women carrying other peoples babies have a right? What should happen in situations arising out of medical negligence or malpractice?


Gillick competent children (Gillick V West Norfolk and Wisbech AHA) can rightfully consent to an abortion. However, disputes between Gillick competent children and their parents have to be settled by court under current law. If the correct criteria can be met for an abortion, it should be granted providing the Gillick competent consents. This is despite the wishes of parents. Similarly, if a Gillick competent refuses an abortion, their wishes should be followed despite the wishes of the parents. It is correct that non Gillick competent children should have their parents as proxy’s in the decision whether to terminate the pregnancy. The same criteria should still be followed though to qualify for an abortion.


In the case of incompetent patients, the court decides what the best interests of the patient are. If this can coincide with the best interests of the child, it is a correct approach.


The plight of fathers has been much overlooked in the debate on abortion. Whilst a father cannot claim abortion is necessary to protect his own physical health or life, claims on the child’s quality of life and his own mental health arguably should be viable. Under current legislation the father has no rights whatsoever to insist on an abortion. Claims made by fathers have failed in numerous cases such as Paton V BPAS (subsequently Paton V UK), C V S and Kelly V Kelly. There seems to be a loophole in the law that does not allow a mother to insist on an abortion on the grounds of the mental health of the father. There is no viable reason for this not to be made law. The right of the father to insist on an abortion against the mothers’ wishes are precarious at the least. It could leave claims for trespass and battery and has implications from the Human Rights Act 1998’s right to life without degrading treatment.


Under current legislation, sperm donors do not have a right to insist on an abortion. They are contractually obliged to allow their sperm to help create effectively what would be their child. Because they have no legal claim over the child when born they rightfully have no legal claim over the unborn child.


Woman carrying someone else’s child arguably should have more rights. They develop a bond with the child through carrying it for nine months. This huge sacrifice of their body should give them enough justification to terminate the child’s life under strict criteria. They should have the same rights as a biological mother except termination for the mental health of a partner and the health of the child. Decisions surrounding the health of the child if born should be taken by the biological mother.


If a foetus suffers an injury due to negligence before it is born, it does have a right of action after it is born. This has been law since the enacting of the Congenital Disabilities (Civil Liability) Act 1976. Notably though, mothers cannot be liable except for negligence during driving. There should be no difference whether the child is born or not when the injury is sustained. If the child is a life, it should have the same rights. Therefore injuries sustained by a negligent mother or anybody else should result in liability just as if the child was injured after birth.


The law on abortion undoubtedly needs to be updated. It needs to take account of the interests of fathers and those who carry children for others. It also needs to be much stricter on who is allowed to have an abortion. Abortion has become an easy option for many as the Health service faces abortion on demand. The rights of the foetus should be more closely followed with the event of 47 days deciding on whether abortion should be granted without question or very closely scrutinised.


To prevent the inevitable increase in the number of dangerous back street pregnancies that would come along with the tightening of the abortion ropes, the root cause of the problem would have to be addressed further. Currently, not enough is done to promote safe sex. The need for increased awareness of the risks of unprotected sex is vital.




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