Abortion: Intro: 1. 2. Has always been an issue up for debate and has huge political significance in the States There’s always two sides where abortion is seen as the murder of the most innocent and vulnerable human beings and another side is about women’s equality and it’s a fundamental human right where human’s rights is also women’s right and they should make decisions on abortion and fertility not by the state Body: What is abortion? 1. 2. 3. 4. 5. One of the most controversial issues of our time and it’s a simple routine and frequently performed operation Argued by several commentators stated in Hansard that abortion has become too readily available, women are treating babies like bad teeth to be jerked out because they are suffering To others, abortion is fundamental human rights that is an essential aspect of the move towards greater equality between men and women To force a woman to go through pregnancy against her wishes would be the most profound violation of her body and autonomy Forms of abortion including: abortion pill, vacuum aspiration abortion, evacuation and curettage, intact dilation and extraction also known as partial birth abortion. The current law on abortion: 1. Seen as criminal offence although Abortion Act 1967 provide extensive defence to any criminal charge Women being with child who intent to procure her own miscarriage Offence can be committed by the pregnant woman or by someone else Under s58 a woman must be pregnant to be guilty of the full offence (but can be guilty of conspiracy to commit the offence if she mistakenly believes she is pregnant and acts to procure a miscarriage R v Whitchurch (1890) A person other than the pregnant woman commits the full offence regardless of whether the woman is pregnant or not provided that they DO something with poison, instrument, noxious thing or other means with INTENT to procure a miscarriage. 2. Offences against the Person Act 1861, s 59 No need to show woman is pregnant R v Ahmed: husband brought wife who speaks little English to a clinic for abortion without her consent. Clinic found out and refused to carry out. His conviction was overturned on appeal because he’s not supplying or procure the supply of anything. The offence of child destruction was created to close the lacuna that existed where the foetus was killed in the course of birth. Before the Infant Life (Preservation) Act 1929, in such an instance there was no criminal liability as a miscarriage was not procured contrary to s58 as birth had already started and yet the foetus was killed in utero and thus was not born alive and so there was no homicide liability. 3. Infant Life (Preservation) Act 1929, s1 where 1. Punishment for child destruction. (1)Subject as hereinafter in this subsection provided, 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, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2)For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive. - These offences can be committed by anyone - Presumption can be rebutted if the more than 28weeks baby is not capable of being born alive. - ‘Capable of being born alive’ defined in Rance v Mid-Downs Health Authority as ‘breathing and living by its breathing through its own lungs alone without deriving any of its power of living from its mother. - The maximum sentence for a woman who intentionally procures her own miscarriage is life imprisonment and anyone who assists her could be imprisoned for up to five years. - It is generally accepted that ‘viability’ is around 24 weeks (the time at which a foetus is capable of life independent of the woman, that is, is sufficiently developed to be able to survive, with medical care, if born). The point of viability is dependent upon medical knowledge and technology. The embryo is called a foetus from about the eighth week of pregnancy. Foetuses are now viable below that age and there were suggestion to lower the time limit but it failed. - only ground that has a time limit (24 weeks) and is often called the ‘social ground.’ As the Abortion Act 1967 (as amended) provides a defence to s58 OAPA 1861 and s1 ILPA 1929, the other grounds can be used as a defence to criminal liability arising from the performance of an abortion at any point up until birth When a miscarriage was procured after the 28th week of pregnancy, liability could arise under s58 OAPA 1861 or s1 ILPA 29 Example case where woman abort on full terms (more than 24 weeks): R v Sarah Louise Catt [2013] o Facts: o D pleaded to administering poison with intent to procure a miscarriage. D was married with two young children. o Her pregnancy was almost at full term when the baby was aborted. The facts show clearly that she had made a deliberate choice. It appears that she was having an extra-marital affair and thought that this man was the father and she concealed the pregnancy from her husband. o The sentencing remarks inform us that there was a psychiatric report which indicated that she did not suffer from any mental disorder. The judge did not see a need for a report from a psychologist but he does not explain why. There is no doubting the seriousness of all of this. o The Abortion Act 1967 offered her no defence. On 17 September 2012 was sentenced to 8 years' imprisonment. By leave of the single judge she challenges the length of her sentence. Benefit of Enacting Abortion Act 1967: Illegal ‘back-street’ abortions were, however, rife (estimated at about 100 000 per year before the 1967 Act): often expensive, unsafe procedures that were performed by the non-medically qualified in unsanitary conditions. The Abortion Act 1967 (AA67) was enacted to address the practical problem of unsafe abortions and bring the termination of pregnancy within medical control. As the then Lord Chief Justice commented in R v Scrimaglia (1971) ‘one of the objects, as everyone knows, of the new Act was to try to get rid of the backstreet insanitary operations.’ The Abortion Act 1967 was enacted to remove fetters on the medical profession and allow them to perform an abortion in the best interests of a patient without fear of criminal prosecution Nonetheless, still an extent as to whether abortion is allowed Defences on abortion: Common law defence: 1. R v Bourne: Defence of necessity exist for doctors Case involved a well-known surgeon who performed an abortion without charge on a girl who was aged 14 and had been violently raped. Doctor gave evidence that he only performed the operation only after being persuaded that the girl was pregnant as a result of rape and she would become mentally wreck if she would have to go through the procedure Judgement: Macnaughten J concluded that if the jury is persuaded that the doctor performed the operation in good faith in order to save the girl’s life the it was entitled to acquit him. Also, if the probable pregnancy is going to result in her being mentally or physical wrecked, then abortion can be carried out to preserve her life This judgment left the law unclear on how the phrase in order to save the woman’s life was to be interpreted However, the defence by common law are less of importance now as it would not be wider than Abortion Act 1967 the requirement in s58 that a person must act ‘unlawfully’ meant that a person could procure a miscarriage lawfully by acting in good faith for the purpose only of preserving the life of the pregnant woman. NOTE the expansive interpretation of ‘life’ It was held lawful to carry out an abortion not only when the woman faced imminent death but also when the pregnancy was likely to make her ‘a physical and mental wreck’ Macnaughten J. It was also held that a medical practitioner can use their experience to predict that life will be in danger from the pregnancy and act to prevent this without waiting for life to be in immediate danger. Mr Bourne acquitted by jury Statutory defence: The Abortion Act 1967 adopts a moderate position by valuing the foetus and not permitting it to be aborted without restriction, yet not valuing the foetus as much as the life and health of the mother The Abortion Act 1967 does not give the woman a ‘right’ to an abortion and instead puts the medical profession, rather than the pregnant woman or the foetus, at the heart of the abortion decision Provided a doctor acts in good faith, their decision to permit an abortion is unchallengeable where no third party, such as the ‘father’ or anyone acting on behalf of the foetus, has any right to be consulted about or to prevent an abortion Sets out the circumstances where abortion is legal 4 general requirements (s1): o - - - A. Abortions must be carried out under authority of a registered medical practitioner. Only require the doctor to decide on the grounds and method and be on call for the treatment throughout the procedure, other healthcare professionals like nurses can carry out the abortion o Only in NHS hospitals and approved places o Two medical practitioners must agree o All abortions must be notified to the relevant authorities But this Abortion Act does not in its face provide a right to abortion, need to have 2 doctors to satisfied of the grounds. Act does not recognise that because a woman has chosen to have an abortion, her choice must be respected. o A woman may request one but it is for the doctor to decide whether one should be performed or not: the medical profession controls access to abortions (this is consistent with the legal rule that there is no right to demand any particular medical treatment R (Burke) v GMC [2004]) Focus more on the opinions of the doctors, not necessary to show that one of the statutory grounds have actually been made out, sufficient that the doctors were of the opinion that it did, so if doctor in good faith mistaken the grounds, not guilty. Abortion is seen as a medical decision. Not for non-medical person to challenge the decision. Only if it’s bad faith or an obvious attempt to perpetrate a criminal offence Difficult to show that it’s illegal o Conviction was upheld in R v Smith in which doctor carried out private abortion in which he had not carried out any internal examination and not inquired her personal information or situation. Held that there was no good faith in forming the opinion that the termination was justified on the grounds Scarman LJ quoted with approval the summing up of the trial judge: ‘If two doctors genuinely form an opinion in each case that they deal with that the risk of continuance is more than the risk of termination, it does not matter whether they are right or wrong in that view. If they form that opinion genuinely and in good faith, that in fact comes within the Act, and there is no guilt attached to it.’ Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 o ‘[I]t would be a bold judge ... who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence.’ Sir George Baker P See Abortion Act 1967 s1 for statutory grounds for an abortion o Not exceeded 24 week and continuance will lead to risk greater than if the pregnancy was terminated o Prevent grave permanent injury o Risk to the life of the pregnant woman o Substantial risk that if the child is born, will suffer from physical or mental abnormalities S1(a) Risk to physical or mental health of pregnant woman Mental health: recognised medical conditions like depression Meaning of risks: unclear on likely or just a possibility, decide on court S1(2) take into account of woman’s actual or foreseeable environment: So if the woman is a teenager with limited support also suggested that abortion will be permitted on the basis of the sex of the foetus if it cause cultural or serious harm which lead to adverse impact on her mental health. (Controversial) Health of women’s existing child would be taken into account if the birth of the baby would affect the physical or mental health of the existing child (eg. Severely disabled child who needs continuous care). Mother’s stepchildren or any child living with her Statistically, a pregnancy and childbirth poses more risk of injury than an abortion, so a termination of pregnancy will usually always pose less risk to the woman’s physical health than a continuance of the pregnancy, thus satisfying this ground The Royal College of Obstetricians and Gynaecologists adopt the World Health Organisation definition of health as ‘a state of physical and mental well-being, not merely an absence of disease or infirmity’. Therefore, an abortion can be justified as necessary to promote a woman’s mental well-being rather in order to prevent her from suffering physical or mental harm Is the limit of 24 weeks for an abortion under s1(1)(a) appropriate? o An earlier time limit relies upon slickness in establishing pregnancy, deciding to have an abortion and making arrangements for this to happen that is an ideal scenario but not always achievable in reality o The rationale for the 'time limit' being set at 24 weeks is that this is the point at which a fetus becomes 'viable': that is, capable of surviving outside of the womb. Why is the point of viability considered important in the Abortion Act 1967? Other countries have different limits (France – on request until 12 weeks) and abortions can take place until birth in certain circumstances. It is, therefore, a political B. decision where to draw the line. Tying it to a medical point hides its constructed nature. Why do we disallow abortions after 24 weeks for social reasons but allow them before? If the child is not aborted, then it will develop to the point of viability o Tying the limit for abortions for social reasons to the point of viability means that logically the limit should be set earlier as medical advances mean younger foetuses can exist outside body of woman. S1(b) Grave Permanent Injury Harm must be grave, permanent and an injury Significantly harder to prove and shows that abortion can happen after 24 weeks after pregnancy commences Not necessary to prevent injury but in good faith believe that it would C. S1(c) Risk to life Not necessary that continuing the pregnancy would lead to death but it might and abortion would reduce the risks to the pregnant woman’s life D. s1(d)Abnormalities (controversial) no time limit, abortion at any time explained on 2 bases: o if the child will suffer appalling handicaps, it would better not to be born o raising a severely disabled child will impose heavy burdens on parents that they should not be compelled to take on them must have substantial risk and the handicap must be serious but substantial meaning have been disputed. Gillian Douglas suggested that in considering if the risk is substantial, consideration can be given to the severity of the disability faced. Others contended that it would be strange if the meaning of substantial will be affected by the nature of the disability Royal College of Obstetricians and Gynaecologists (RCOG) suggested that whether a risk is substantial depends on factors such as the nature and the timing of diagnosis and likelihood of it occurring. Unclear whether pregnant woman’s views that it would be serious matters RCOG gives guidance of what is seriously handicapped: o Assisted performance: need of helping hand, only with some assistance from another o Dependant performance: complete dependence on the presence of another person, only when someone is with hi/her most of the time RCOG suggested factors to be considered: suffering that would be experienced, probability of living alone and self-supportive as adult etc. But argument that the term is too broad by Kennedy and Grubb This ground had been relied upon to justify the abortion of children suffering from cleft palate but RCOG refuses to give guidance as there are differing interpretations and it should be dealt on a case by case basis as it is not possible to always predict the seriousness BMA suggested that in dealing whther this ground is satisfied, doctors should consider the probability of effective treatment, child’s potential for self awareness and ability to communicate with others, suffering that would be experienced by the child when born or the people caring for the child The Royal College of Obstetricians and Gynaecologists suggest doctors take account of the following factors: o the probability of effective treatment; o the child’s probable degree of self-awareness and ability to communicate with others; o the suffering that would be experienced; o the extent to which the child might be dependent upon others (in the long term) Jepson v The Chief Constable of West Mercia Police Constabulary [2003] EWHC 3318 o FACTS: Reverend Joanna Jepson asked for a judicial review of the decision not to prosecute a doctor who performed a late abortion (after 24 weeks) on a foetus on grounds that it suffered from a cleft palate, a fairly minor abnormality that can be easily repaired surgically. o HELD: Jackson J granted leave to apply for judicial review. A further police investigation was carried out but the CPS declined to prosecute on grounds that the doctor had acted in good faith. E. S1(4) Emergency Abortions (special rules) 1. Two medical practitioners’ opinion not needed in emergency to save the life or prevent grave permanent injury 2. Covers medical emergency and abortion must be carried out immediately Termination can be carried out by one doctor and abortion need not to be carried out in an approved place F. Patients who lack capacity Abortions can be performed on adult patients who lack capacity provided it is in their best interests Re SS (An Adult: Medical Treatment)[2002] 1 FLR 445. Unlike sterilisations of patients who lack capacity, there is no need to seek court approval. A patient who is 16-17 years old can consent to an abortion. A child under 16 years can consent to an abortion if they are considered Gillick competent. The parents need not be informed. An abortion can be carried out on a younger child with the consent of a parent or court (Re B (wardship; abortion) [1991] 2 FLR 426) Ways to protect professionals who refused to participate in abortion due to various reasons: 1. s4 of 1967 Act states that if someone has a conscientious objection to abortion, they are not under legal duty to participate in any treatment authorised 2. Nonetheless, there’s still limitations: a. Not affect doctor’s duties to carry out abortion that is necessary to save life, prevent permanent injury or at risk of serious injury. Doctor’s conscience will not be a defence b. Does not remove doctor duty to advise, should refer to other practitioner if have contentious objection c. Does not affect duty to those who have had abortion 3. Janaway v Salford Area health Authority: where the applicant was a secretary at health centre and she refuses to type a letter referring the patient to a consultant for possible abortion as she is a roman catholic. She was disciplined and employment was terminated. She applied for judicial review to quash the decision and that she was entitled to refuse participation in typing work if it was connected to abortion since she could’ve been an accessory in procuring abortion. The court has dismissed her application held that the words ‘in any treatment under the act’ meaning to those who actually takes part in the treatment 4. MacKay v Essex AHA [1982] Griffiths LJ medical profession under a duty to advise pregnant woman of ‘her right to have an abortion and the pros and cons of doing so’ Is there a way for others besides medical professionals to interfere with your abortion? (Foetus status in court) If someone wants to seek an injunction to prevent someone from abortion, it is not possible Seen in several cases: a. Paton v Trustees of the British Pregnancy Advisory Services Where a husband sought an injunction to prevent wife from carrying out an abortion without his consent Sir George Baker held that father have no right to such an injunction since 1967 Act did not even require prior notice or father to be consulted before an abortion. However, did not rule out that an abortion would not take place if the doctor carry out in bad faith The father argued that even if he had no standing as the father, he could intervene on behalf of the foetus but this argument failed because the foetus was said to have no legal standing in the eyes of the law b. C v S Man sought to prevent abortion of partner Followed Paton case, Sir John Donaldson state that even if abortion was illegal that the doctor was acting in bad faith, the matter should be left to attorney general or director of public prosecutions ECtHR held that not only he had no right to prevent, but neither did a father have even a right to be notified that an abortion is going to be performed Even if failure to notify amount to an interference under ECHR Article 8(1), it can be justified under Article 8(2) as it is necessary to protect the rights of mother c. Jepson v The Chief Constable of West Mercia Police Constabulary A curate learned that abortion is going to be carried out on the basis of disability and this serious disability is that the foetus is suffering from cleft lip. She notified CPS but they decided not to prosecute so she sought a judicial review, It was held that there was no evidence that the doctors had not formed the ground on good faith with the view that the chid would be seriously handicapped d. Re F (in utero) [1988] – mother with mental problems; absconded from residential care; threat to her foetus: foetus cannot be made ward of court until birth). e. Vo v France [2004] – foetus has no right to life under article 2 ECHR Shows that it’s highly unlikely someone would have a standing as father or for foetus to object the performance of abortion. Any challenge on legality should be brought by CPS or Attorney General which they can sought for judicial review to challenge. (argued that if wish to encourage father in playing a larger role in contraception and raising of a child, should include their interest while making a decision on abortion, can give a role in counselling process) Discussion of abortion law in UK (Doctors have main power to decide/ controversy) 1. 2. 3. 4. 5. One of theme of abortion in UK is the medicalised model of abortion where judgement of doctor is key. As Sheldon put it, if the law tries to entrench or protect the rights of the woman, it is not but those of the doctor. The Act does not even require the woman to consent to the abortion which in contrast of other countries, abortion is seen as a private matter for the woman alone. One benefit coming out of this is that it has produced an obstacle for men seeking to challenge the legality of an abortion as it’s a matter for medical experts. Nonetheless, there’s criticisms to such idea that the Act is actually a benign fiction as in truth, a woman who wants an abortion at least in the first three months will get one. By far the most common ground for abortion is s1(1)(a): the risk to physical or mental health. In 2012, 99% of abortion are carried out on this ground which led to claims that in effect abortion is ‘on demand’ 6. 7. 8. The Abortion Act 1967 arguably allows abortion on demand in the early stages of pregnancy but does not secure it for women: terminations must be approved by doctors. The reasons why a woman may want an abortion are judged by the medical profession. Some reasons are more socially acceptable than others. Even though a desire to abort a foetus because it is the ‘wrong’ sex may be allowable under ground s1(1)(a), it is likely that the doctor will be more willing to agree to perform an abortion for reasons such as the economic or career disruption a baby would cause. Some doctors argued that there’s always greater risks in carrying a foetus to term than to terminate the pregnancy. This is debatable in court but if the court did accept this argument, it is to suggest that abortion is legal for every woman in the first 24 week of preganancy English law does not recognise a right to abortion on demand, still need to find a doctor who is willing to comply with her wishes Laws of Abortion in Other States: Northern Ireland: The Abortion Act does NOT apply in Northern Ireland The Supreme Court heard evidence on 24 October 2017 that law in Northern Ireland contravenes articles 3, 8 and 14 of the ECHR in failing to provide an exception to the prohibition on the termination of pregnancy in Northern Ireland in cases of serious malformation of the unborn child/foetus or pregnancy as a result of rape or incest. The decision of the court is awaited. In 2015 the Belfast High Court ruled that Northern Ireland abortion law breached women’s rights, but that ruling was overturned by the Court of Appeal in June 2017. Northern Ireland is the only part of the UK where abortion in almost all cases is illegal. The termination of pregnancy is available in Northern Ireland’s hospitals only if it is necessary to preserve a woman’s life. This includes where there is a risk of a serious and adverse effect on her physical or mental health which is long term or permanent. An amendment by the Labour MP Stella Creasy to allow Northern Irish women access to NHS-funded abortions in England was passed by Westminster in early 2017. In October 2017, the Scottish first minister, Nicola Sturgeon, confirmed that regulations allowing Scottish health boards to provide abortion services to women from Northern Ireland would come into force at the beginning of November 2017. Scotland: The law in Scotland: Abortion law was devolved to Holyrood as part of the Scotland Act 2016. The SNP has reaffirmed its commitment to current legal protections and to maintaining time limits in line with the rest of the UK . However, on 26 October 2017 Scotland became the first part of the UK to allow women to take the abortion pill in their own homes. Announcing the decision to make the drug misoprostol available for home administration, the Scottish government’s public health minister, Aileen Campbell, said: “Abortion can be an emotive subject. However, I am proud this government is working hard to ensure women are always able to access clinically safe services. “Scotland is now the only part of the UK to offer women the opportunity to take misoprostol at home when this is clinically appropriate, a decision that allows women to be in control of their treatment and as comfortable as possible during this procedure.” Should there be abortion & Controversial Issues with abortion law? Issues: Status of foetus 1. In English law, it’s clear that foetus is not seen as a legal person until it’s born 2. Baker P stated that foetus cannot in English law have any right of its own until its born and have separated existence from the mother 3. In A-G Reference No.3, HOL rejected a claim from COA where it’s said that foetus is seen as part of the mother like a limb. Lord Mustill stated that foetus is an unique organism yet its still unclear of what it is 4. Foetus is not a person, only at the point of birth but once the child is born, it can sue for the injuries suffered from when he was a foetus 5. Foetus is protected under s58 and 69 OAPA 1861 and Abortion Act 1967, have interests protected under the court 6. Foetus have no rights that can be enforced by others, also cannot bring proceedings in the name of the foetus (Paton case) 7. Not part of mother but it’s not nothing as it’s not lifeless and is certainly human 8. Cases dealing with foetuses: a. Evans v Amicus Healthcare Ltd: Where COA deals with a dispute of what to do with the frozen embryo created using gametes of the couple and the man wanted it to be destroyed but the woman wanted to keep it. Woman argue that the rights of the embryo should be taken into account but Lord Justice Thorpe stated that the English law had repeatedly held that foetus prior to birth have no independent rights or interests and this is not inconsistent with ECHR Article 2 protects the right of life where no Convention jurisprudence extends right to embryo. b. A-G Reference (No 3 of 1994) where a man stabbed a pregnant woman injuring the foetus and the mother. The child was born but later dies after living a short while. The man was charged for murder. HOL held that murder must be the killing of a person so killing foetus is not murder but when it is born alive, it is a person. So this man has killed a person. Nonetheless not guilty of murder for lack of intent. Lord Mustill rejected COA view that foetus was part of mother like a limb as the mother and foetus are two distinct organisms living symbiotically but not a single organism with two aspects. Foetus is seen as a unique organism. 9. Failure of the Court to make a determinative ruling on the status of foetus has led Ken Mason to criticised that the English law is problematic to produce a result that murder of foetus is not charged as murder or manslaughter but if it’s born alive but then dies it is charge as such. 10. Katherine O’Donovan criticise that the decision for being overly concerned with the interface with abortion law. 11. No one is able to act on behalf of the foetus because it is clear that the foetus has no legal standing until born alive when it has an existence separate from its mother 12. If a late abortion takes place and the foetus does not die in utero but is born alive, the doctor performing the procedure could technically be guilty of murder if the child then dies once born. Once the foetus has been born alive, then a person who takes steps to harm it will be potentially guilty of homicide. Issue 2: Abortion ethics in determining whether to legalised abortion (pro-life and pro-choice with foetus status) 1. The abortion dilemma The question of whether or not abortion should be permitted by law and in what circumstances is a very sensitive issue which often polarises into a stand-off between those who claim to be ‘pro-life’ (arguing for the foetus’s ‘right to life’ and opposing abortion in all or most situations) and those that claim to be ‘pro-choice’ (arguing for the woman’s ’right to choose’ an abortion in all or most situations). Despite the intense debate about the morality of abortion, the Abortion Act 1967 permits abortions in certain circumstances for purely practical reasons: abortions will take place regardless of criminal prohibition but illegality drives them ‘underground’ making them expensive, unsafe and outside medical control. 2. Two groups of people: a. Those who emphasises with a ‘woman’s right to choose’ whether or not to terminate pregnancy is her right as it’s a fundamental aspect of personal freedom to decide (Pro-choicers) b. Those who emphasised a right to life of the unborn child to whom abortion is tantamount to murder (Pro-life) 3. This is an area of law in which it should be distinguished between what is moral and what should be illegal. Hence, it is a perfectly respectable view to believe that abortion is always seen as immoral but court leave the choice up to the individual. For pro-lifers: Focus on the status of the foetus where it is viewed as a person There’s a distinction of whether the foetus is human and saying that it’s a person i. For foetus is a person from moment of conception: The foetus is a person from the moment of conception is usually a view taken by those who opposed and from a religious perspective 3 arguments: a. claimed that foetus is a person at the point of conception b. because we don’t know when life begins so the safest assumption is that life begins at conception c. if argued at the point of conception, claimed that foetus is not a person, nonetheless has the potential to be a person so should be treated in the same way as a person At the point of conception (sperm enters the ovum), genetic make-up of a person is complete apart from growing ad developing, there is nothing to add or taken away in the genetic terms from the person. It is seen as one of us since it’s the same physical organism that will develop into a person a. Rebut: i. corpse is also the same human organism that the live person was but you wouldn’t give the same moral status to a corpse and a live person ii. only person when developed primitive streak which is 14 days after conception iii. it is not the genetic identity that creates a personal identity but psychological wholeness and because adults have no psychological links with the foetuses that they were, cannot be regarded as the same people. 1. This reply would be rejected by many supporters of conception as it exaggerates the importance of our psychological wholeness to our identity, mentally ill person may lack psychological wholeness but still a person. Christopher Kaczor stated that embryo should be treated as a member of Homo Sapiens rather than a heap of cells as contrast to skin cells were its just merely parts of human being unable to develop towards maturity in ii. human species. Human embryo is a complete organism whose cells work together in a coordinated effort of self-development to maturity. If all humans are persons then embryo should be persons. i. Rebut: personhood is generated from capacity to do and experience something rather than genetic constitution ii. Also its noted that very early embryo is seen being identical with placenta or amniotic sac since majority of cells in early development of embryo goes to the formation of those. So it cannot be said that conception is when embryo becomes a complete organism No exact and clear time as when the foetus’s personhood begins. Koop questioned when will it be right to kill a new born baby whether it’s a minute before or after that the child is born Conception gives the clearest point as to when to draw the line i. Rebut: should not assume that theres a need to be a clear moment as to when life begins just like day and night as there’s times where we’re unsure of has the day ended or started. ii. Conception is not exactly a bright line as conception and fertilisation takes place over a period of time where it might be as difficult to pinpoint the moment where conception process begins iii. Whether it is sensible to draw the distinction between the sperm and egg seconds before fertilisation and conceptus produced afterwards iv. If personhood starts at conception, many forms of contraception is immoral especially those that operate after conception like contraceptive pill. v. Only 15% of fertilised egg survived, means many people die after a few days 1. Children in developed countries where mortality rate are more than 90% does not have higher moral status than those of lower mortality rate Even accept that at conception, not a person but has potential to become a person so must respect the foetus not for what it is but what it has potential to become. a. By killing foetuses, depriving them of their future lives so treat foetuses as person b. The greater the likelihood the foetus will become a person, the greater vale that it has so less value attaches to a conceptus but much more value just prior its born i. Rebut: you don’t treat someone who has potential to be something as if she has acquired it such as someone who’s dying as if they’re dead. ii. Cannot deprived someone of a future if they have no awareness Better to treat a non-person as a person than to treat a person as a non-person to play it safe since we don’t know when exactly foetus becomes a person i. Rebut: Thompson has argued that given the lack of consensus on the status of the foetus, law should prefer liberty of a woman going into unwanted pregnancy to prevent lost of anatomy *For foetus becomes person at viability: Moment at which the foetus becomes capable of existing independently of the mother with appropriate medical support so if prematurely born, capable of living Significance of viability result from 2 arguments: a. At viability foetus becomes a person b. At viability, mother entitled to withdraw her support of the foetus without killing it Important as it marks the transition from being a dependant human being entity of another to one with independent life i. Rebut: Uncertainty: difficult to know when can a foetus survive outside of the mother ii. Period differs in each country iii. Also a foetus of 26-week may survive in a developed country with modern medical equipment but not those with limiting medical facilities. Should not depend on where the mother is staying iv. Being completely independent is impossible until is several age older For Pro choice: Reject the argument that foetus has any rights until birth and argue that what is important is the right of autonomy of the woman Women’s right to autonomy or bodily integrity i. Jarvis Thomson’s violinist view Gave hypothetical example: where one wakes up in the morning with a famous unconscious violinist which found to have fatal kidney ailment and you’re the only one that has the right blood type to help. You were kidnap and his circulatory system was plugged into yours to extract poisons with your kidney if he’s unplugged he’ll die but in 9 months he will be recovered and safely unplugged from you. One can make the sacrifice and remain plugged in but is not something legally compelled to do as you’ve given a choice to unplugged yourself. Thomson stated that if you’re agree with this scenario, abortion is likewise permissible. Thomson says, abortion does not violate the fetus's legitimate right to life, but merely deprives the fetus of something—the non-consensual use of the pregnant woman's body and life-support functions—to which it has no right. Thus, by choosing to terminate her pregnancy, Thomson concludes that a pregnant woman does not normally violate the fetus's right to life, but merely withdraws its use of her own body, which usually causes the fetus to die which is the same as you unplugged from the violinist where you do not violate his right to life but merely deprive him of something—the use of your body—to which he has no right i. Rebut: Since the person was kidnapped and being forced so this view will only be suitable to justify abortion in rape. Unconvincing in other cases Suggested another situation where one willingly open window but does not give burglar right to enter and remained. She tries to show that woman who has consented to sex cannot be taken to have accepted to be pregnant i. Rebut: argued that womb is natural place for foetus to be cannot be seen similar to intruder who is responsible fore their own doings but foetus is not responsible to be in the womb ii. Woman has known that using contraceptive is not 100% reliable so it means that she has undertaken the risks of being pregnant. 1. Argued: you cannot give away bodily integrity in advance ii. Self-defence Abortion an act of self-defence Women defending herself against pain, injuries and bodily intrusions accompanied by pregnancies Bodily integrity and liberty violated by foetus implanting itself onto the mother without her consent i. Killing in self-defence is only justified to avoid threat of death or severe injury, questioned whether effects of pregnancy are sufficiently grave to justify a killing ii. During abortion, usually harm is imminent and foetus is not posing unjust threat iii. Overriding rights of women Right to privacy: abortion should be private issue of mwoman and if it involves any moral social or personal issues should be for her to secede not others i. Rebut: if state don’t interfere, hard to ensure that there are proper abortion facilities. Also, abortion is not a lifestyle choice but concerns intimately with the body of women. Should not be underplay. Right to bodily integrity: pregnancy seen as bodily invasion of the woman. Woman should like others have the right to control whatever happens to her body and abortion is central part of this right. Right of equality: abortion plays a role in tackling the disadvantages women face as compared to men. As stated by the founder of planned parenthood, no woman can call herself free until she can consciously choose whether to be a mother as their freedom and life choices are limited when bearing children as compared to men. Controversial 3: Abortion and disability (Proposal to change current law) 1. Does it mean that those with disability don’t deserve to live? 2. In the past was justified by eugenics grounds, now society rejects eugenics arguments 3. In the past, practiced eugenics publicly but now privately. Although currently it does not prevent the birth of disabled people directly but encourage expectant mothers to undergo tests for foetal abnormality and making abortion readily available for serious disability once found, shows that eugenics still in effect. 4. Once test reveals abnormalities, tendency to terminate 5. A person’s body is not the problem but it is the society’s failure to provide properly for disabled people. Research showed that parents are more worried of the social stigma attached than the impact of their limitations 6. Jackson argues that disability should not be a legitimate reason for choosing between people but foetus does not have legal personality so rules prohibiting discrimination does not apply. Also disability makes life less satisfying without believing that the person with disability is less valuable. 7. Abortion decision should simply be regarded as a mother’s choice without attaching any social or political statement on it. 8. A Bill introduced by a severely disabled Peer to end disability-selective abortion received its Second Reading in the House of Lords, with near unanimous support from Peers in February 2017. 9. Lord Shinkwin’s Abortion (Disability Equality) Bill will now proceed to the Committee Stage. 10. If successful, the Bill will remove section 1(1)(d) from the 1967 Abortion Act, which allows for abortion on the grounds of disability up-to-birth. In the UK, disability-selective abortions are currently available right up to the moment of birth whereas in most cases, ‘healthy’ babies cannot be aborted beyond 24 weeks. 11. The net effect of this Bill would be that the 24-week time limit would apply to all babies regardless of disability, as a woman would still be able to obtain an abortion on other grounds detailed in the 1967 Act. 12. Speaking at the debate, Lord Shinkwin said: “From this disabled person’s perspective, there is a stark anomaly, an inconsistency in the law, whereby discrimination on grounds of disability is both prohibited in law after birth yet, confusingly, actually enshrined in law at the very point at which the discrimination begins, at source, before birth.” “I would be better off dead because of serious handicap, to use the outdated terminology of the Act. I regard my Private Member’s Bill as a modest, reasonable and logical correction of that anomaly in the law to bring it into line with the thrust and spirit of existing disability discrimination and equality legislation.” “I am your equal. I will not be defined by my disability.” 13. Speaking at the debate, Baroness Stroud, said: “In some ways even more troubling, however, is that disability, which is a protected characteristic in UK law, should be a basis for abortion at all. Lest anyone should be tempted to think that one can be discriminatory in a confined abortion context and not have it spill out into life beyond the womb[.]” The basic argument about abortion for disability reflects current debate about abortion generally. Those who support the right of a woman to opt for abortion because of a diagnosis of fetal abnormality or disability are often supporters of the right to choose in general: Women are capable of making informed choices if they have up to date and accurate facts and support from well-trained professionals, educators, friends, partners and families. Whatever the reason for the abortion she is probably the best judge of her own circumstances and capacity. Women who choose to end pregnancies because of potential disability can be acting out of compassion, knowing that they do not have the ability to care for a child with special needs. There is no guarantee that an adoptive family could be found for a seriously disabled child. Many people who support women’s right to abortion because of potential disability are active supporters of rights for people with disabilities and say that the two positions are completely compatible. Arguments opposing abortion for disability Many of those who oppose abortion for disability also oppose the rights of women to choose abortion in general: Every fetus is a sacred human life and it is morally wrong to end that life. The stage of development of the fetus or its state of health are not relevant as all fetuses should be equally valued. It is always better to continue with the pregnancy and put the baby up for adoption than to end the pregnancy. Some people who are not opposed to abortion in general are uncomfortable that the law allows for abortion for disability later in pregnancy than for other reasons. Controversial 4: Should abortion be decriminalised? (Reform) 1. In reality, criminalising only do a little to stop abortion, only send the treatment underground 2. It was argued that Latin America has one of the world’s strictest abortion laws but also one of the highest abortion rates 3. Black-market/ backstreet abortions likely to endanger women’s lives and increase exploitation Watt argues by pro-life that if abortion is illegal meant that only a few hundred abortions are carried out then it would be worthwhile even if it meant that some women are dying due to illegal abortions The British Medical Association has called for abortion to be decriminalised in England and Wales ‘Whatever one’s view about the principle of the decriminalisation of abortion, there are some issues on which there appears to be a broad consensus. The following principles would need to be protected in any law or regulation that replaces the current legislative framework. 1. Abortion must only be permitted in cases where the woman gives informed consent, or in cases where the woman lacks capacity and an abortion is determined to be in her best interests. 2. Health professionals must have a statutory right to conscientiously object to participating in abortion. 3. There should be a central collection of abortion data (subject to agreed appropriate confidentiality protections) to ensure future services are fit for purpose. 4. There must be clarity about what is, and what is not, lawfully permitted, so that health professionals are clear about the scope of their clinical discretion. 5. There should be robust clinical governance in settings where abortion care is provided. 6. There should be the continuation of some degree of regulation and the setting of professional standards in the provision of abortion services.’ Arguments: - - It’s patronising to women o Under the 1967 abortion act, which provided exemptions from prosecution under the oapa but did not decriminalise abortion, a woman cannot decide for herself to have an abortion. This decision has to be made on her behalf, by two doctors. This paternalistic approach sits at odds with every other clinical procedure. In the 21st century, a woman who ends her own pregnancy without the permission of 2 doctors can be "kept in penal servitude for life”. It’s out-of-date o The 1861 offences against the person act (oapa), which criminalises abortion, is a victorian piece of legislation that fossilises values well out of step with those cherished in britain today. It discriminates against women o The criminalisation of abortion makes a mockery of the equal status that is accorded to women in any other area of life, and represents discrimination against women. o Without the ability to control their fertility, women would have not achieved the level of educational and workplace equality that younger generations can rightly take for granted. Abortion cannot solve all the problems of sexual equality; but without the ability to exercise reproductive choice, women have no hope of planning their own life course. It is entirely - - - - - - - inappropriate that a procedure which has underpinned such enormous and beneficial social change should sit within criminal law. It is at odds with fundamental legal principles o The fact that abortion remains within criminal law sits at odds with other legal principles of bodily autonomy. A pregnant woman cannot be compelled to undergo any intervention against her wishes, even if her fetus may die as a result. a mother cannot be forced to donate a kidney to a dying child, but she can be compelled to sustain a fetus against her will. The punishment is entirely disproportionate o A young woman who takes abortion pills bought online could be sent to prison for 12 years. A doctor who provides safe abortion care to a woman who requests it without the approval of his or her colleague could be sent to prison for 12 years. If we do not believe these people should be imprisoned we should not accept a law which stipulates that they should. Public opinion has changed since the 1960s o The 1967 act was also developed in a context where public opinion was far more ambivalent about abortion than it is today. Two thirds of people today say that abortion should be allowed according to a woman's choice, compared to 37% in 1983. Abortion in britain today is a fact of life o There are around 200,000 abortions a year. One in three women will have an abortion in their lifetime. Sexual health policy supports the provision of abortion, and 98% of abortions are funded by the nhs. T prevents best clinical practice o The fact that unlike any other medical procedure and for no clinical reason whatsoever 2 doctors must authorise every request for an abortion inevitably causes needless delays. Women undergoing miscarriage treatment are able to take the pills they need to pass an early pregnancy in the comfort of their own home. o The law prevents women undergoing early abortion from doing this. Abortion procedures today are safe and straightforward, and do not need to be performed by doctors. However the law currently denies nurses and midwives a larger role in the provision of care. T puts doctors off caring for women o One of the aims of the abortion act was to protect doctors from prosecution when performing legal abortions. But misinterpretations of the law leave doctors exposed to the ‘chilling effect’ of smear campaigns and challenges by opponents of abortion. This impacts seriously upon women’s care, with doctors more reluctant to provide it over fears of prosecution. Removing it from the criminal law will not increase abortions o Other jurisdictions, in australia and canada, have successfully removed abortion from the criminal statute, in order to regulate it with laws more appropriate to a mainstream healthcare procedure. o This has not caused an increase in the rates of abortion, or the proportion which take place at later gestations, and has provided a more constructive platform to consider how abortion can best be provided in the 21st century. Controversial 5: Point of viability (see pro-life as well) Some MPs have argued that this should be reduced to 20 weeks or below. Advocates and opponents of the change have pointed to scientific evidence about the viability of infants born extremely prematurely at 22, 23 and 24 weeks. The rationale for the 'time limit' being set at 24 weeks is that this is the point at which a fetus becomes 'viable': that is, capable of surviving outside of the womb. One thing that is clear from the recent debates is that viability is not clear-cut. There is no single point in time at which we can say that fetuses become ‘viable’. No matter where we draw the line, it would be absurd to think that fetuses at one moment were not viable, but that the next day they gain viability. This is partly because there is variation between fetuses in maturity and strength moral status grounds: When we think about why we should not kill someone, the reasons that we might think important include the fact that they do not want us to do it, that we will deprive them of future life, and that the process of killing them will cause them to suffer. but insofar as they apply to a fetus, they apply equally to a fetus at 20 weeks (who is clearly not viable), or to a fetus at 30 weeks (who is clearly viable). It often takes several weeks for such women to have repeat scans, and receive specialist advice on the likelihood of their infant having serious problems. Not all women in such cases choose to terminate their pregnancy, but the decision is one that is often difficult and takes time. If the abortion time-limit is reduced it will impair the ability of such women to make informed and considered decisions. Viability of a fetus should be considered a good cut-off point when thinking about the legal time frame of abortion, because aborting a fetus when it could survive outside of the womb is unethical. Killing a baby after it is born is murder. What the difference between a 9-month old baby inside the uterus and a 9 month old baby outside of the uterus? - Regardless of the stage of birth that the fetus is in, the only time an abortion should be performed is when there is a health or safety risk. Putting a time frame or cut-off point on performing abortions seems to send the message that as long as it is before that time, it should be considered acceptable. Some women are using abortions as a form of birth control and that is simply unacceptable. Abortions should be allowed to be performed but only under the threat of serious risk to the mother or baby, regardless of the stage of birth. - Ending: Suggestion that instead of going through abortion, contraceptives can be used as well as education: 1. Many people claimed that a wide availability of effective contraception has allowed women to have control over their fertility but its always taken for granted. 2. This includes sterilization, condoms, contraceptive pills etc. 3. However (Rebut), i. seen as shortage worldwide but improving conditions in developing countries ii. Also, survey shows that women generally dissatisfied with all the available methods of contraception iii. permanence and degree of invasion mean that it’s hardly ideal and if they want to reverse sterilisation, involves major surgery and not always successful iv. Also there’s still certain unreliability on current popular form of contraception such as condoms where there’s still a chance of getting pregnant v. Showed that in about three-quarters of pregnancies ended in abortion, women were using some form of contraception at the time of conception as stated in the case of R (John Smeaton) v Secretary of State for Health 4. Sadly, contraception has failed to work and has been regarded largely a ‘woman’s responsibility’. 5. Availability of contraception: a. Oral contraceptive pills available only under prescription but condom can get anywhere b. Costs eg. Condoms seen as expensive for young adults where for every 1000 girls under the age 20, more than 50% gets preganant (50.2%) when bought over the counter or supermarkets but contraception if provided under prescription is free c. Only one third of sterilizations carried out privately even though it’s available on the NHS 6. Ineffective sex education and a considerable level of ignorance and misinformation lead to high teenage pregnancy rates. Ex Prime Minister Tony Blair stated that teenage mothers likely to quit education, harder to find a good job and more likely to end up as single parents and bringing u their kids in poverty where they have greater risk of poor health and most likely end up as teenage mothers themselves Is there a Right to Reproduce? 1. 2. 3. 4. 5. Difference between reproductive liberty and reproductive autonomy Reproductive liberty: idea that one’s reproductive choices such as when where with whom should be of private matters which state should not interfere. State should not seek to prevent a woman from reproducing on the grounds that she might be a bad mother. Wrong for state for preventing contraceptive. Seen as a negative concept as prevents state interfering in people’s reproductive choices but does not give people rights to treatment Reproductive autonomy: goes further from the idea of reproductive liberty. Seen as a positive concept where state should interfere as far as practicable assist in infertility where it’s analogous as to a serious disease, NHS has the obligation to treat. Arguments for reproductive liberty or autonomy: a. Harm principle: developed from John Stuart Mill where state should accept any activities as lawful as long as it does not cause harm to others even if its immoral, state should not interfere b. Discrimination: principle of equal treatment that there should be no disadvantage suffered by those who are infertile. It is seen as a disability and the state should do something to reduce the negative impact but couples should not be seen as disabled just because they could not have children. c. Intimate nature: Article 12 ECHR provide a right to marry and to found family. But in Mellor, this Article does not give absolute right to assisted reproductive services but was rejected by Dickson v UK where an infertile couple has access to reproductive services under Article 8 and if there is to be any restriction on Convention rights of prisoners or detainees, that has to be justified in each individual case. In SH v Austria, it was held that use of medically assisted procreation is protected under article 8 but under article 8(2), state may interfere if it is able to provide good reasons. Arguments against for reproductive liberty or autonomy: a. Conservatives may argue that reproductive choices should be contained in the context of marriage, outside of it is irresponsible and does not deserve respect as a right b. If no intention to take responsibility of the offspring, should not be given right to c. Limited claim that men have to such right IS THERE A RIGHT TO REPRODUCE? Reproductive liberty (negative) or reproductive autonomy (positive)? Article 12 of the European Convention on Human Rights recognises the importance of reproduction: Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right. Article 8 also recognises the right to respect for private and family life. Yet there appears to be no right to positive assistance with reproduction: R v SS for the Home Department, ex p Mellor [2001] EWCA Civ 472 Dickson v UK [2007] Application No 44362/04 No absolute right to assisted reproductive services Access to assisted reproductive services often depends upon financial considerations as often not available on the NHS Some would also limit reproductive liberty (for example, denying IVF to lesbian couples or outlawing surrogacy arrangements) Human fertilisation and Embryology Act 1990 (HFE Act) This Act created the Human Fertilisation and Embryology Authority (HFEA) which regulates assisted reproduction services and embryo research. A primary concern is to prevent unethical conduct which may bring this area of medicine into disrepute. It also protects the embryo in vitro, for example, by prohibiting the storage of, and research on, a fertilised embryo beyond 14days from the mixing of the gametes. Embryo selection Is it legal to select an embryo in IVF (in vitro fertilisation) for implantation into the woman on grounds of their genetic makeup? Can you pick the embryo most likely to be: a close match for an ill sibling (a saviour sibling,) or the embryo that will be a girl, or will not have a particular medical condition? Pre-implantation genetic diagnosis (PGD) is permitted if licensed by the HFEA in order to allow couples to select embryos if there is a risk of serious disability. Embryo selection on grounds of sex is not permitted unless there is a risk of a medical condition that relates to sex and so selection is a means to avoid such a disability. The creation of a saviour sibling may be permitted by the HFEA who will consider all the circumstances of the case.
