LEGAL STATUS OF AN UNBORN CHILD

Legal status of the unborn child

An unborn child has no legal personality
Paton v BPAS 1979
In England & Wales the unborn child has no right, no right at all, until birth
Once born alive it can apply retrospective rights for criminal or civil wrong
Civil Law
Well established rule of civil law that an unborn child shall be deemed to be born whenever its interests require it.
A gift to a class of children living on a particular date is held to benefit a child in the womb (en ventre sa mere) at that date but later born alive within that class

Yunghanns v Candoora No 19 Pty Ltd (No.1) (1999-2000) 2 I.T.E.L.R. 589
The primary beneficiaries of a trust were Y's children that were either alive at the date of the trust's creation or born in the future. Y had fallen out with his children had remarried and his second wife was pregnant.
The unborn child was a person for the purpose of proceedings where a right that was for its benefit was in issue and in circumstances where it could institute proceedings regarding that right if it survived birth

Congenital Disability (Civil Liability) Act 1976
Allows for the child to sue in negligence if harmed in the womb and born handicapped
e.g. assisted conception s1(1) excludes the mother on public policy grounds s2 however does allow a woman to be liable if driving when pregnant due to third party insurance requirement under UK law
Criminal law
Provides some sanctions against conduct directed at foetus.
Abortion
No legal definition
Douglas G (1993) Reproduction and the Law
Any treatment to terminate pregnancy
Offences
Offences Against the Person Act 1861
s.58 - Every woman being with child who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing ….or unlawfully use any instrument or other means …and whosoever, with intent to procure the miscarriage of any woman whether she be or not be with child shall unlawfully administer to her any poison or other noxious thing ….or unlawfully use any instrument or other means … shall be guilty of a felony

S.59 - Whosoever shall unlawfully supply or procure any poison or other noxious thing or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman whether she be or be not with child shall be guilty of a misdemeanour
Offences
Infant Life (Preservation) Act 1929
s.1(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 a felony … child destruction. …no person shall be found guilty of an offence … unless the act which caused the death was not done in good faith for the purpose only of preserving the life of the mother.

S1(2)- For the purpose of the 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

R. v McDonald [2002] NI 54
Man received 22 years imprisonment for attempted murder rape and child destruction after stabbing his ex partner with the intention of killing her and her unborn baby

Rance v Mid-Downs HA [1991] 1 All E.R. 801
R, the parents of a child born with spina bifida, claimed damages for negligence in the carrying out of a scan.
The scan was carried out when the mother was twenty five and a half weeks pregnant but she was not notified of the suspicion of spina bifida indicated.
She claimed she would have asked for the pregnancy to be terminated if she had known.
MDHA claimed there was no negligence and in any event an abortion would have been illegal.
The issue was whether the child was a child "capable of being born alive" in terms of s.1 of the 1929 Act, had the abortion taken place between the 27th and 28th week of his mother's pregnancy.

Held: The phrase in s.1 of the 1929 Act denoted that the child was capable of existing as a live child after birth with no connection to his mother.
On the evidence it was stated that the child would have been able to breathe unaided for two or three hours after birth.
Thus, the child was capable of being born alive and the abortion, had it taken place would not have been unlawful in terms of the 1967 Act.

Defences - at common law
R v Bourne [1939]
Mr Bourne an eminent surgeon performed an abortion on a fourteen year old girl who had been made pregnant as the result of a violent rape.
Mr Bourne argued in his defence that he had performed the operation because of the serious risk to the health of the mother if the pregnancy were to continue

In his summing up the judge focussed on the word unlawful in s.58 of the Offences Against the Person Act 1861
The mischief of the word was to highlight that there were lawful reasons for procuring a miscarriage
The jury decided that one of these reasons was to prevent serious injury to the woman and acquitted Mr Bourne
Defences - statutory defence
Abortion Act 1967 (as amended by s37 Human Fertilisation and Embryology Act 1990)
s.1(1) .. A person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion formed in good faith

that the pregnancy has not exceeded its twenty fourth week and that the continuance of the pregnancy would involve risk greater that if the pregnancy were terminated injury to the physical or mental health of the pregnant woman or any existing children of her family or that the termination of the pregnancy is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman (Codification of Bourne) that the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped

For a and b account may be taken of the woman’s actual or reasonably foreseeable environment
s.5(1) Abortion Act 1967 states that
No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act
Has the effect of removing the twenty eight week limit for paragraphs b,c,d in s.1(1)
UK now has one of the most liberal abortion laws in Western Europe

s.4 allows a contentious objection to participating in such treatment other than to save life of the mother
Morning after pill not included as it prevents implantation and therefore there is no miscarriage
There are mild doubts over the lawfulness of selective reduction
Abortion for sex selection and selective reduction need to satisfy s1 of the Act
Rights of the Father
Only the woman has the right to seek abortion
She takes the risks
No requirement to notify the father
Father has no right of veto
Paton v Trustees of British Pregnancy Advisory Service 1979
C v S 1987
Reform
20 attempts at reform since 1967
Shifted from protection from back street abortions to protection of unborn child
Mother takes the risks so her interests should outweigh those of the foetus
Note R v Collins and Others Exparte S TLR May 8 1998
Interests of the foetus becomes more compelling as it reaches birth
Some philosophers argue 3rd trimester should be sacrificial stage

Douglas suggests only workable way is showing due respect to both the woman and the foetus
USA Roe v Wade 1973 allows for minimal regulation until third trimester
McLean termination means death should this be?
Baroness Cox attempted to amend the Act by forcing doctor to use all reasonable means to secure a child born alive
Clear that cutting down of delay is important as the dilemma becomes more acute as the foetus matures
Parliament missed the opportunity for improving Sex and Contraceptive Education
Wrongful Life
Does the existence of abortion law place a duty on a doctor to abort a foetus that is likely to be born with a handicap?
Can such a child sue the doctor for damages in wrongful life
McKay v Essex HA 1982

Stephenson LJ
I am ... compelled to hold that neither defendant was under any duty to the child to give the .. mother an opportunity to terminate the child’s life. To impose such a duty would make a further inroad on the sanctity of human life which would be contrary to public policy.
It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child but so much less valuable that it was not worth preserving
These are the consequences of the assumption that a child has the right to be born perfect or not at all
Parents able to recover
For nervous shock and
Negligence
If child damaged
Allin v City & Hackney HA 1996
Mother told child was dead
McFarlane v Tayside HB 1999
Farrell v Avon HA 2002
Father told child was dead
Retrospective Rights
A foetus has no recognisable right at law unless it is born alive
Re Attorney Generals Reference (No 3 1994)
Murder or manslaughter can be committed where unlawful injury is deliberately inflicted either to a child in utero or to a mother carrying a child in utero.

The requisite intent to be proved in the case of murder is an intention to kill or cause really serious bodily injury to the mother, the foetus before birth being viewed as an integral part of the mother.
The fact that the death of the child is caused solely in consequence of injury to the mother rather than as a consequence of injury to the foetus does not negative any liability for murder and manslaughter provided that the jury are satisfied that causation is proved.

R v Tait [1990] CA
Threat to kill unborn child to pregnant woman not a threat to kill a third person within meaning of s16 OPA 1861
Foetus not a third person distinct from its mother

In utero wardship
Re F In Utero
I have considerable sympathy with the local authority in their position on the facts of the instant case, but I am driven to the conclusion that the judge was right and that the court has no jurisdiction to ward an unborn child.
If the courts are to have this jurisdiction in a sensitive situation such as the present, I think that this is a matter for Parliament and not for the courts themselves.
For these reasons, I think that the judge below was wholly correct in the decision refusing jurisdiction to which he came, and it was for these reasons that I agreed that the appeal should be dismissed.