The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 2 Summer 1979 |
M. N. M. BELL, M.A.(Cantab.) Chairman
T. G. A. BOWLES, M.A.(Cantab.) Hon. Secretary
40 BEDFORD STREET
LONDON
WC2E 9EN
Summer 1979
Number 2
News and Comment
Progress Report
I am pleased to report that our Association continues to grow in strength almost daily, and now has more than 300 members. This includes about 250 Solicitors and 40 Barristers, as well as Academic Lawyers, and Lawyers in business and other occupations. Legal Executives, Articled Clerks and Law Students. We therefore represent a very wide spectrum of lawyers in the country, and are well entitled to claim to speak with the traditional voice of the profession on this issue. There is no comparable organisation of lawyers which supports the killing of unborn children, and indeed one would not expect this, since there is no justification for such action which would satisfy a lawyer.
Education of the profession
One of the main aims of our Association is to influence the thinking of members of our own profession, and the means used to do this during the past year have been various. An advertisement has been placed each month in the Solicitors' Journal, and the New Law Journal. It is difficult to judge the results of advertising as a separate item, but there can be no doubt that the repeated presentation of our logical arguments must influence the thinking of those who read them.
Also a number of our members have written letters to the Professional Press, and in particular a brisk correspondence has been carried on in the Law Society's Gazette. A great deal of emotion and indignation has appeared from the pens of those who think that abortion is justified, to which many of our members have replied with reasoned argument.
Distribution of our literature
Our pamphlet "Justice for the Unborn Child" has been very widely distributed, both by our members and other people. 9,000 copies have been printed, of which about 3,000 are left undistributed. We are still very far from achieving our objective of ensuring that every lawyer reads the pamphlet, and members are asked to make a real effort to write to all friends and acquaintances in our profession sending them a copy. Copies are available free to members on request from our Secretary. Six of our members in Bournemouth sent a copy to each of 225 Solicitors practising in that town, with a short letter recommending it to them. Our membership in Bournemouth was doubled as a result. It is suggested that this method could usefully be adopted in other towns where there are several members.
Reaction to our first Newsletter
Our first Newsletter, of which 3,000 copies have been printed, has also proved popular with non-members, because of the statement of the Law relating to abortion set out in its inner two pages. This provides a clarification of the Law, which cannot be found elsewhere, and we have received numerous congratulations on it, both from members and others. It is also significant that although the statement of the Law contained therein differs quite widely from that found in some text books, nobody has suggested that it is incorrect. In fact, a Question was tabled in the House of Lords on 6th March drawing the attention of the Secretary of State for Social Services to the remarks in our Newsletter, to which the Written Answer was that he did not intend to take any action as a result of it. One can only assume that, although he was unable to fault it on legal grounds, he still felt strong enough politically to ignore our statement that the Law is being very widely disregarded by his Department.
Pressure on the authorities to act
Our Secretary has in fact during the year written to the Director of Public Prosecutions drawing his attention to the numerous illegalities which go unpunished in this branch of the Law. He is also writing to the Department of Health and Social Security, drawing their attention to the way in which the requirements of the Act are ignored or misunderstood by doctors.
This Association has only been in existence for one year, and we have every intention of continuing to bring pressure on the appropriate authorities to enforce the Law, for as long as these efforts are needed.
Our Secretary has also written to a number of Members of Parliament, and to many other people in positions of influence, about our Association and our objectives. However there is no reason why this aspect of our work should be the exclusive concern of our Secretary, and we do urge members to make more effort in this direction. If every member would write to his or her M.P., asking that the Law as it stands should be enforced, a request to which there could be no reasonable objection, there is no doubt that a very significant impact would be made on the thinking of the Government.
Our financial position
The financial position of the Association remains satisfactory. We do not have a subscription, because our Committee felt that most Lawyers are in a position to donate fairly generously to the causes which they support. And indeed many members have sent generous donations. One member sends £30 nearly every month. However, some others have so far sent nothing. To meet the expenses of our publications and advertising, we need an income of about £10 per member per year. If any member would like to make a donation, please send it to our Treasurer, Miss G. Hanley, 3 Woodfield, St. Helens Crescent, Norbury, London, SW16 4LD.
Editors' Note :—
We are delighted to be able to include in this newsletter an article by one of our members, Mr. Gerard Wright, Q.C..B.A., B.C.L., which carries forward our aim of opposing any erosion in the protection which the Law affords to the unborn child.
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Paton v British Pregnancy Advisory Service Trustees and Another *: The Next Step
*Reported at 1978 3 W.L.R. 687
Last May Mr. William Paton sought an injunction to restrain the B.P.A.S. Trustees, and his own wife, from aborting a child, his child, which his wife was then expecting. His application failed and thereafter the life of yet another innocent victim of the Abortion Act 1967 was destroyed. Does the decision of the President, Sir George Baker, preclude any further attempt to restrain an expectant mother from undergoing an abortion? The purpose of this article is to suggest another approach to the problem which Mr. Paton faced, and to provoke discussion and research with a view to developing an effective legal argument which can be used next time an attempt is made to restrain a proposed abortion.
The Ratio Decidendi of Paton's Case
Baker P. decided (see p. 690D) that Mr. Paton could succeed only if he had a right as a husband to restrain his wife from obtaining an abortion. It is therefore implicit in the decision that the prospects of success of an expectant but unmarried father, or of a mere member of the public unrelated to the expected child, would have been even less than Mr. Paton's. Baker P. concluded (see p. 691H) that as a husband Mr. Paton had no legal right enforceable in law or in equity to stop either his wife from having the abortion or the doctors from carrying out the abortion. His application was therefore refused.
Others may disagree, but it is accepted for the purposes of this article that the decision of Baker P. was correct and is legally unassailable.
Bona Fides of the doctors concerned
At the hearing before Baker P. it was conceded (see p. 691G) that the doctors whom Mrs. Paton had consulted were acting in good faith. Would it have made any difference to the decision if it had been possible to challenge their bona fides and to contend that a criminal breach of the provisions of the Abortion Act 1967 was about to be committed? It is submitted that this would have made no difference to the decision for Gouriet v Union of Post Office Workers (1978 A.C. 435) decides that no ordinary member of the public has the right (save with the assistance of the Attorney-General ex relatione) to bring civil proceedings to restrain threatened criminal acts. As the decision of Baker P. effectively equated Mr. Paton's status with that of an ordinary member of the public, it is apparent that the bona fides of the doctors could never have been a triable issue in the case.
A different approach
Mr. Paton sought to base his claim upon his supposed right as a husband, and possibly upon his supposed right as an expectant father. His claim was therefore entirely personal to himself based upon his personal status and, as such, it failed. As mentioned above, Gouriet's case debars any other member of the public from taking proceedings in his own right, and it is thought unlikely that an Attorney-General would lend his aid to proceedings unless an absolutely blatant and clearly provable abuse of the law were contemplated. Does this mean that no proceedings are possible to prevent an abortion?
Baker P. said (at p. 689F): "The foetus cannot in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother." However despite this obiter dictum (for such it must be) it is submitted that a claim made on behalf of the unborn child, the "nasciturus" as it is sometimes called, would stand a very much better chance of success than did Mr. Paton's personal claim as husband and father-to-be. The arguments in favour of a claim so framed are outlined below.
General
In recent years abortion legislation has been passed in many countries. It has been passed because the general public does not regard a foetus, at least in its early stages of development, as a person, as human, or even as living. Consequently many who would agonise over "putting down" a household pet would regard the killing of a living foetus with far less compunction; they think of the foetus as an inanimate blob of jelly.
Legal thought has been largely conditioned by a similar ignorance of modern embryology. Hence the wholly artificial distinctions made in the past in criminal law between a woman who had "quickened" and one who had not, between a child carrying on its being without the help of its mother's circulation, and a child which merely breathed, and so on.
It is possible that a claim made on behalf of a nasciturus would be greatly assisted by a body of expert medical evidence directed to demonstrating that a nasciturus differs little from a recently born and living baby. Such evidence would tend to clothe the nasciturus with the "personality" which, in the uninformed minds of many, it lacks.
However, the real basis of a claim on behalf of a nasciturus is not that it is a "person" with the kind of "personality" which a layman understands, but that it has a "legal personality" capable and worthy of being protected by the law.
The Concept of Legal Personality
A legal person is something which the law regards as being, capable of rights or duties. It is very much a technical concept, for a human being may lack legal personality as did the slave under Roman Law or the "outlaw" in medieval times. Conversely a legal personality may not be human at all and may be a limited company or even (see Pramatha Nath Mullick v Pradyumma Kumar Mullick 1925 L.R. 52 Ind. App. 548) a Hindu idol.
Whether a particular "thing", to use a neutral term, should be invested with legal personality and regarded as capable of rights or duties is perhaps a policy decision. The burden of this article is to suggest that, effectively, such a policy decision has already been made, and that a nasciturus is already sufficiently recognised by the law as a legal personality as to be capable of having an action brought on its behalf to protect it from being aborted. This proposition will be considered under the headings: 1. Criminal Law; 2. Property Law; and 3. Tort.
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1. Criminal Law
Since at least the days of Coke abortion has been a crime. This fact does not of itself invest the foetus with legal personality, but it does demonstrate a concern, both at Common Law and by statutes (not insignificantly entitled "Offences against the Person" Acts), for the protection of the unborn foetus.
A particularly important case is R v Shephard (1919 2 KB 125) where a Defendant was convicted (his appeal being dismissed) of inciting to murder, the facts being that he had incited a woman to kill her unborn child whenever it should be born. As one can only murder a human being (which certainly has legal personality) the decision implies a legal personality in the unborn foetus. Though comparatively old this decision was cited with approval in R v McDonough (1962 47 C.A.R. 37).
2. Property Law
Many of the cases in this sphere turn upon the construction of documents and involve the legal fiction of treating the unborn foetus as a living child within the meaning of such testamentary phrases as: "such child or children ... as should be living at the time of his decease" (Doe dem Clarke v Clarke 1795 2 H.B1. 399). The cases however go further than formulating canons of construction based upon a legal fiction and can usefully be summarised by the words of Buller J. in Thellusson v Woodford (4 Ves 227 at 322): "Let us see what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction; and he may have a guardian" (a reference, it is thought, to the guardian who could be appointed under the Tenures Abolition Act 1660). The reference to a guardian is perhaps of particular significance for, ex hypothesi, only a legal person can have a guardian to protect his rights and undertake his duties.
It is submitted that there are clear indications that in this branch of the law a nasciturus has been recognised as having legal personality.
3. Tort
The plain trend of American, Canadian and Australian case law is to grant an action for damages to a child in respect of physical injuries sustained whilst it was an unborn foetus, a nasciturus. It is confidently predicted that, if a similar claim were brought in this country, it would succeed. Save for the Thalidomide cases which were compromised, no like claim is known to have been made, but the trend of jurisprudential thought is such that, assuming cause and effect can be satisfactorily proved, a claim is almost certain to succeed.
Such claims however are by living, born, children even though they are made in respect of injuries inflicted whilst the claimant was unborn. It is submitted however that if the living child can sustain an action in respect of pre-natal injury it should follow logically that in a "quia timet" action proceedings can be brought on behalf of the unborn child to prevent it from suffering injury — or death.
Moreover one may take the matter further, for there is one reported decision in which proceedings were brought on behalf of an unborn child and in which judgement was given (in its favour) before it was born. This is The George and Richard (1871 L.R. 3 Adm. & Eec. 466) where Sir Robert Phillimore said: "I am of opinion that the proctor for the unborn child has a right to claim in this suit" (brought under the Fatal Accidents Act 1866). Pursuant to this judgement a decree was drawn as follows: "... and he reserved to the infant en ventre sa mere of the said Elizabeth Noyes if born in due time to prefer its claim for damages before the Registrar . . . ".
It is submitted that our law of Tort, and in particular The George and Richard, the authority of which has never been doubted, plainly supports the proposition that proceedings can be brought on behalf of a nasciturus to protect its interests.
A difficulty
In the Property Law Cases referred to, and in Tort (even in The George and Richard), the success of the proceedings is ultimately dependent upon the nasciturus being born and surviving. In contrast, in the proceedings contemplated the survival of the foetus is dependent upon the success of the action. It is submitted however that this difference is not of any logical significance and that in principle English law already sufficiently recognises the legal personality of a nasciturus to justify proceedings on its behalf to protect it from abortion.
Bona Fides
Paton's case equated Mr. Paton with an ordinary member of the public, and Gouriet's case decided that an ordinary member of the public, with no special interest other than as a member of the public, has no right to bring civil proceedings on his own account to restrain a proposed criminal act. However an unborn foetus plainly has a special interest in being born, and in being born uninjured, and it is submitted that it has, at the very least, sufficient legal personality to justify proceedings being brought on its behalf to prevent its being unlawfully aborted.
If therefore one accepts, as a lawyer one must, that some abortions can be lawfully carried out under the provisions of the Abortion Act 1967, it is submitted that it is still possible (as it was not in Paton's case) for a guardian or next friend (whose nature and status may require some research) to challenge on behalf of the unborn foetus, the nasciturus, the legality of a proposed abortion. This means that, in a proper case, the decisions and bona fides of the certificating doctors can be called in question and challenged.
Conclusion
The views expressed in this article are entirely personal to their author. They have been much influenced and assisted, however, by an article by Professor Winfield in 8 Cambridge Law Journal and by the pioneer work of Professor Lasok (a member of ALDU) in the Law Journal of February 15th 1963 and in the Symposium "Fundamental Rights" published by Sweet and Maxwell in 1973. It is hoped that these views will provoke study and discussion and the writer would be most grateful to receive criticisms of what he has written and the views and ideas and suggestions of other members of ALDU.
1979 A.G.M.
Our Annual General Meeting took place on the 5th May, and was attended by Lawyers from all over the country. A constitution for our Association was approved, which is available to members from our Secretary on request. The Chairman and Secretary were re-elected, Mr. Robin Haig was elected Vice-Chairman, and Miss Gabrielle Hanley Treasurer. A report on some of the other matters dealt with at the A.G.M. will appear in our next Newsletter.
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A Reply to our Critics
Since this Association was set up in May 1978, a number of Lawyers have put forward reasons, both in the legal press and in letters to us, as to why they consider that our stand for justice for the unborn child is unjustified. In most cases these arguments have been based on sincerely-held misunderstandings of the facts. We hope that these critics will be open to reasoned argument, and we would like to answer here a few of the criticisms which have been put forward.
The child is alive
The first and most common criticism is that the unborn child should not have the same legal rights as the born child, because he or she is different not only in degree but in kind. Such objections come from Lawyers who are usually not fully informed about the findings of modern science in this field. They would probably find it helpful to read the booklet published by the British Medical Association entitled "How your Life Began".* On page 11 of this booklet it states "Life begins at conception". There are no medical differences of opinion about this, or about the fact that the heart starts to beat only about one month later, and that this heart beat can be detected. After two months the brain waves can be monitored, and after only 10 weeks from conception the child can be seen to be moving his arms, sucking his thumb and doing the other things which a born baby does. At this stage the child is complete even down to his own set of finger prints. Most abortions take place after this stage is reached.
*A "Family Doctor" publication available from most chemists.
The child is human
Even when this is demonstrated to the satisfaction of our opponents, they will still continue to argue, "but the child is not an independent human being". To this argument a leading gynaecologist has replied that he never has come across a case where a creature formed from the egg and sperm of two human beings was anything other than a human being. The same gynaecologist also points out that the child in the weeks before birth is in many respects far more independent than the child in the first weeks after birth, and that in the womb the baby is capable of doing many more things to control his situation than he is in the days and weeks following his birth. Full details of his statement are available from ALDU (price 25p). As for the allegation that until birth the child is only a "part" of the mother, this would involve the proposition that a pregnant mother has two hearts and two brains, which most people would regard as nonsense.
Justice knows no religion
In the last resort, we have been faced with the assertion that up to the moment of birth or some arbitrary moment before birth, the child does not have a "soul". It is of course as easy, or as difficult, to prove that a child has a soul in the womb as it is to prove that he has a soul outside the womb; and it should be remembered that exactly the same assertion was made by those involved in the slave trade when claiming a right to destroy their merchandise. It is always very convenient to state that your opponent does not have a soul, and to put this forward as a ground for justifying you in killing him, but the law should not take account of such pseudo-religious arguments. ALDU bases its position firmly on the latest findings of medical science as to when human life begins, and so should the law.
One law for all before and after birth
If the law recognises the foetus as a child, and he is so recognised in numerous statutes and decisions, then the law cannot consistently allow that child to be killed to relieve suffering, or because he is unwanted, any more than it allows a born child to be killed. One letter appeared in our professional journals saying that if an unborn child interferes with a legal career, that is sufficient justification to kill him. In effect this is claiming a right to kill anyone who gets in my way — a disgraceful claim for anyone to make, particularly a lawyer.
Direct abortion
Another misunderstanding which has led to criticism of our Association is the statement in our literature that we are opposed to all "direct" abortion. People say, "but what about the situation where the mother's life is at risk?" The answer to this is that the words "direct abortion" mean abortion whose purpose, or one of whose purposes, is to kill the unborn child. If the sole purpose of an operation is ''\ save human life, then this Association can have no objection to it, even if, as an undesired and unintentional consequence of that operation, a child dies.
Hard cases make bad law
Another argument of which much has been made, is that our stand does not take account of hard cases, such as (1) rape, (2) deformity of the child, or (3) mothers who are still children themselves. Fundamentally, the view of this Association is that the protection of the criminal law should be extended to all human beings equally. The moment the child leaves the womb none of these defences are available to his murderer. Why should they be available to the killer of the child in utero? The child is the same, only younger.
There are other specific replies to these arguments, of which only a few can be briefly mentioned here, as follows : (1) Rape. This is largely a theoretical objection. Pregnancy following rape is almost unknown. In any event to kill a child because of his father's offence is wholly repugnant to the principles of our legal system. (2) Deformity. There are no accurate means today to ascertain the degree of deformity before birth. As a result many children are being aborted for deformity, who are nearly normal. Many deformed and handicapped people lead very useful and happy lives. To destroy all imperfect people before birth, as the N.H.S. now seems to want to do, is simply Nazi eugenics. (3) This Association has every sympathy with school children, who through bad teaching or bad example are led to experiment with sex, and so become pregnant. But then to teach them that it is permissible and proper to destroy another human being if that other is causing them problems, is to compound one evil with a worse one. This is not compassion. It is corruption.
These are all situations where special help and care is needed for mother and child. Adoption is often an acceptable solution. There are at least ten couples waiting to adopt for every child available for adoption. There are other forms of help available which we do not have room to consider here. But no matter how much more "cost effective" abortion may be as a solution to these problems, it remains fundamentally unjust and inequitable, and so totally unacceptable to a lawyer.
The Association of Lawyers for the Defence of the Unborn accepts the undisputed findings of modern embryology that human life begins at conception. The Association therefore holds that natural justice requires that the unborn child, no matter how young, should enjoy the same full protection of the criminal law as is enjoyed by his or her mother or by any other human being.
