The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 5 Spring 1980 |
The Association of Lawyers for the Defence of the Unborn
M. N. M. BELL, M.A.(Cantab.) Chairman
T. G. A. BOWLES, M.A.(Cantab.) Hon. Secretary
40 BEDFORD STREET
LONDON
WC2E 9EN
Spring 1980
Number 5
News and Comment
Progress Report
Membership & Organisation
With a membership of well over 560 lawyers, A.L.D.U. continues to grow at amazing speed, and to gain increasing support, not only in this country but all over the world.
Lawyers have so far written to enrol as members from the following countries:- Antigua, Australia, Canada, Holland, Hongkong, Ireland, Italy, Malaysia, New Zealand, Spain Switzerland and the U.S.A.. We strongly urge all these overseas members to set up Associations in their own countries. We promise them as much free literature as they need to achieve it.
With more than 100 members who are students or articled clerks, it seemed appropriate to hold a meeting at which they could formulate their own views as to how to advance the aims of the Association. This took place in London on the 2nd February, 1980. As a result a student subcommittee was set up, which has set itself the formidable task of reaching all the students in the U.K. Any student members who are interested in helping with this work are invited to write to the secretary of the sub-committee, Mr. Peter Kelly of 73 Ottways Lane, Ashtead, Surrey.
Annual General Meeting
All members are warmly invited to attend the second Annual General Meeting of the Association, which will begin at 2 p.m. on Saturday 10th May 1980. The meeting will be held at the Charing Cross Hotel, Charing Cross, London.
Unlike many organisations, this Association does not regard annual meetings as a time for listening to self-congratulatory speeches. The purpose of the meeting will be to report on what we have done during the past year, to discuss how we can achieve our objectives more effectively, and to make plans for the coming year. If any member wishes to speak on a particular point, would he please give our secretary as much notice as possible, so that the relevant item can be included in the agenda, which will be available at the meeting. As the elected officers of the Association were elected for a three year term at the last A.G.M., there will be no elections.
Meeting in Manchester
On 17th October 1979 the Association held an open meeting in the Law Faculty Building at Manchester University which was attended by more than 50 lawyers. After a short opening address by the Chairman of this Association, a talk illustrated with slides was given by Dr. J. M. McLean B.Sc., the Senior Lecturer in Embryology at the University. The subject of his talk was the development of the unborn child and he conclusively proved that such development is a continuous process from the moment of conception. At no stage could it be said "before this moment the child was not a live human being." The audience was left with the inescapable conclusion that the embryo, the foetus and the child are one and the same person.
This conclusion was directly relevant to the talk given by the final speaker Mr. Gerard Wright Q.C. He began by pointing out that an abortion must necessarily involve the crime of child destruction from the time that the child was capable of being born alive. This was by no means the same thing as being viable.
He then referred to the case of Paton -v- B.P.A.S. ([1978] 3 W.L.R. at 687). He suggested that a father who wished to bring an injunction to prevent the mother of their child from having an abortion could do so on the ground of trying to prevent an illegal act. The act alleged would either be child destruction if the child was capable of being born alive, or procuring a miscarriage if the doctors were not acting in good faith.
He then dealt with the question of locus standi. Gouriet -v-Union of Post Office Workers ([1978] A.C. 435) had shown that a member of the public could not bring such proceedings but a father was in a special position. He quoted numerous instances where the law recognised this. For example the Guardianship of Minors Act 1961 gave the father a special position. The Affiliation Proceedings Act 1957 gave a woman with a child in utero a right to sue, thereby implying a liability on the part of the father. The old form of bastardy proceedings were brought for the benefit of the child, not the mother.
The Fatal Accidents Act 1959 provided that a potential dependant could be illegitimate. This meant that the father of a bastard child had a contingent benefit - he had a special position in relation to a claim, which members of the public in general did not have.
The Tenures Abolition Act 1660 S.8. provided that a father could appoint a guardian for a child en ventre sa mere and could bring proceedings on his behalf. From the rights of a father he then turned to deal with the rights of an unborn child. It was not true to say that such a child had no rights.
Under the Law of Property Act 1925 a life interest could be given to an unborn child. The case of Caller -v- Caller ([1976] 2AER at 754) decided that a child of the family included an unborn child. The Congenital Disabilities (Civil Liability) Act 1976 imposed a duty on the mother to care for the safety of the unborn child, and you cannot be under a duty to someone unless that other person has a correlative right.
He told us how he himself had been concerned with the Thalidomide cases, and these showed that the trend of the common law was to grant a right of action for prenatal injury, and that many foreign legal systems included such a right.
In Thelusson -v- Woodford (4 VES 227 at 322) Buller J. listed the legal rights of the unborn child, that he might be an executor or take on an intestacy, that he might have an injunction or a guardian. An injunction might be brought on his behalf to stop waste.
If proceedings could be brought on behalf of the child to protect his property then why not to protect his life?
The Law Reform (Miscellaneous Provisions) Act 1934 gave a right to claim damages for damage suffered by the deceased. The executor claimed on his behalf. The right crystallised on death. In the child's case the right crystallises on birth. The George & Richard ([1871] L.R.3 Adm. & Exc. 466) recognised the legal personality of the unborn child. He saw no reason why a father could not bring a quia timet action to prevent harm on behalf of the child.
The general feeling of those attending the meeting was that it had been extremely useful and worthwhile, and several new members were enrolled immediately afterwards. It is hoped that further meetings of this kind will be held in other towns during the coming year.
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Abortifacient Actions of Certain So-Called Contraceptives
Written by: Dr. Philip Howard B.A., M.B., B.S.
Mr. Mark Churchill B.Sc.
The scope of this article is to consider only those contraceptives which cause as part of their action the loss of the fertilised ovum. Such contraceptives are the intra-uterine contraceptive device (I.U.C.D. or I.U.D.) and the oral hormonal contraceptives (the "pill").
Introduction
In order for fertilisation to occur there must be both production of the egg (ovum) in the female, and sperm production in the male - the latter process need not be dealt with here. The ovum develops in the ovary during the first half of the menstrual cycle under the influence of hormones released from part of the brain. Simultaneously the lining (endometrium) of the uterus (womb) is stimulated by hormones to grow and thicken so that it would be ready to receive and nourish the ovum (should it be fertilised). Around the mid-point of the menstrual cycle the ovum is released from the ovary (ovulation) and passes into the adjacent Fallopian tube which leads into the uterus.
Concurrent with ovulation, the mucus at the lower end of the uterus (the cervix) is hormonally stimulated to become thinner - this allows easier penetration of the sperms swimming up from the vagina, through the uterus and into the Fallopian tube. If sperm and ovum meet in the Fallopian tube they fuse together (fertilisation or conception). The fertilised ovum then passes into the uterus, dividing on the way to form 6 or 8 identical cells. In the uterus the fertilised ovum can then imbed itself (implantation) into the endometrium. The fertilised ovum can be recognised as being fully human from its very formation — the process of implantation is simply another stage in its further development into an embryo, fetus, and finally baby; implantation simply allows the fertilised ovum to be nourished as it grows. If fertilisation does not occur, the ovum dies and is shed with the endometrium as menstrual blood ('period') at the end of the menstrual cycle. Another cycle may then begin.
Development
The fore-runners of the modern I.U.C.D. had been used for therapeutic purposes since the time of Hippocrates; their contraceptive use has only been developed since around the 1850's. At present about 65 different types have been patented. They are of varying shapes, usually made from synthetic plastics coated with copper.
The "pill" has more recent origins. It was known in the 1920's that release of the egg or ovum (ovulation) could be inhibited by giving oestrogen and progesterone hormones. However it was not until the 1950's when synthetic derivatives of these hormones became commercially available that the development of the "pill" took place. Four main types exist. The combined type (the most widely used) consists of both hormones taken in 28 day courses; the depot injection form is essentially similar. The "progesterone - only" type (the "minipill") does not contain oestrogen. The sequential type of "pill" is rarely used now, and consists of courses of oestrogen plus progesterone. The fourth type, the post-coital or "morning-after" pill, is not yet available in this country; it consists of large doses of either oestrogen or progesterone taken up to 72 hours post-coitally.
Mechanisms of Action
Although they have been in use for many years, it is still not known with absolute certainty how I.U.C.D.s and the pill work. This is for two main reasons. First, because of ethical and practical difficulties, it is not possible to perform experiments on humans providing absolute proof. Secondly it is hard to extrapolate data obtained from experimental animal models to the human situation. However, good evidence now exists to allow us to draw reasonable conclusions as to their actions.
There is very little evidence to suggest that I.U.C.D.s prevent either ovulation occurring or the penetration of sperms into the fallopian tubes; hence it is very likely that fertilisation does indeed take place. Thus the I.U.C.D.s efficient "contraceptive action" must lie mainly in its ability to prevent the fertilised ovum implanting into the uterus; indeed fertilised ova injected into the uteri of animals with an I.U.C.D. in situ fail to implant. This loss of fertilised ova may be achieved by several mechanisms; there may be actual destruction of the fertilised ova, or the ova may be hurried through too quickly to allow implantation, or there may be inhibition of suitable development of the uterine lining (endometrium) thus preventing implantation. It is probable that the combination of several mechanisms takes place in vivo. Should implantation occur I.U.C.D.s may produce early abortion by a mechanical action. Pregnancies are a rare, but not unknown, occurrence whilst an I.U.C.D. is in place. Such pregnancies have an increased risk of spontaneous abortion compared with normal pregnancies. The foetus also has an increased risk of malformation with an I.U.C.D. present, depending on the surface area of exposed copper on the I.U.C.D.
In contrast, the undoubted major action of the combined-type pill is to prevent normal ovulation occurring. However in a very small number of menstrual cycles ovulation d( occur (break-through ovulation); exact estimates of such break-through ovulations are hard to obtain but are probably occurring in about 0.2% of menstrual cycles. Under such circumstances secondary back-up actions of the pill contribute to its high efficiency. One such mechanism is the hormone-induced thickening of the cervical mucus which inhibits the penetration of sperm into the uterus. The hormones also act to inhibit endometrial development such that it is not conducive to implantation of the fertilised ovum should fertilisation take place. The progesterone-only minipill has a weaker ovulation-inhibitory action than the combined type. Its efficacy probably lies in the combined mechanisms of inhibiting sperm penetration (thickened cervical mucus) and prevention of implantation of fertilised ova by interfering with endometrial development.
The post-coital pill has been tested on rape victims and normal volunteers and has been shown to be efficient in preventing pregnancy. Since it can be taken post coitally, when fertilisation can have occurred, it does not rely entirely on preventing ovulation or sperm penetration. Presumably its action mainly lies in promoting the loss'^S any fertilised ova, although how this is achieved is i exactly known; hurrying the fertilised ova through or inhibiting endometrial behaviour are possible actions.
Conclusions
I.U.C.D's are generally held to act largely by an abortifa-cient action, although this has not been established with absolute certainty with human experimentation. Similarly, for the oral hormonal contraceptive pill, the consensus of opinion is that its main action is contraceptive; but abortifacient back-up actions probably do play a role, although their overall importance is hard to define exactly.
References:
Wood, C. "Intrauterine Dervices" (1971) (Butterworths, London)
Oldershaw, K. L. "Contraception, Abortion & Sterilisation in General Practice" (1975) (Henry Kimpton)
Briggs, M. H. & Briggs, M. "Biochemical Contraception" (1976) (Academic Press)
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After the Third Class Carriage the Third Class Human Being?
Most lawyers probably appreciate that as a result of the provisions of the Abortion Act 1967 there was for the first time created a kind of second class human being; a human being who might legitimately be killed if his presence threatened the well-being of his mother, or his brothers or sisters. Thus our legislators, who had been telling us for years that all human beings were equal, were now telling us that some human beings are more equal than others.
It is perhaps not always appreciated that the 1967 Act went further than this, and invented the third class human being, the handicapped child. The handicapped child is so third class that he may be killed whether his mother's health is threatened or not.
In the last newsletter we dealt with the problems arising from ante-natal screening for handicap, and we pointed out that the only purpose of such screening must be to kill the child if handicap is detected, because handicap detected in the womb cannot be cured.
Abortion as an alternative to treatment
As a result, a doctor has written to us drawing our attention to the fact that some forms of handicap can in fact be treated, but the handicap is treated as an excuse to abort the baby nevertheless. One example of this is the disorder known as Phenylketonuria. This is an inborn disorder of metabolism, which reults in the build up of excess amino-acid which the baby is unable to break down after birth into its essential parts. As a result of this the child becomes severely mentally retarded, unless he or she is put on a special diet until mental development is complete at approximately 18 years of age. An affected mother is advised to revert to dietary restrictions when pregnant, (British Journal of Maternal and Child Health, January 1980).
Despite this, Government statistics show that a few children are aborted on medical grounds every year, because they are suffering from this disorder. This is apparently one more example of how abortion is coming more and more into modern medicine, to replace the much greater effort and research needed to treat and cure difficult diseases.
Haemophiliac and Rhesus babies (Haemolytic disease of the Unborn) are other treatable disorders, which unfortunately can now be diagnosed in utero. Once again Government statistics show that a number of children are aborted every year because they have one or other of these disorders.
The particularly sad aspect of the matter is that the people who have these disorders can lead long, happy and useful lives, if treated.
Abortion for curable defects is illegal
What is the lawyer to make of such abortions? The Abortion Act 1967 quite clearly laid down that in order for a termination for handicap not to be an offence there must be a substantial risk that the child would be seriously handicapped. If it is common medical knowledge that such disorders can be treated, how can such abortions possibly be legal? And yet the Government keeps on producing statistics to show that these terminations are taking place, without the prosecuting arm of the Government apparently taking the slightest interest.
When the legal profession apparently has so little concern for the enforcement of the law, lawyers are really in no position to criticise the declining ethics of the medical profession. The two professions seem to be going downhill together, and it is hoped that by publication of the evidence of these crimes in this newsletter the authorities may be persuaded into accepting their responsibilities.
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Statistics
A favourite occupation of people who argue for and against the benefits of abortion is to compile statistics to show that the Abortion Act 1967 has or has not achieved its alleged purposes of improving maternal health and getting rid of "unwanted" children.
All such arguments ignore the key point that any law which sanctions the killing of any human being without trial is unjust, and no consequences which flow from such a law can justify it.
An example recently came to our attention of a case where statistics did not prove what they appeared to prove at first sight. These were figures produced by the Medical Statistics Unit of the Office of Population, Censuses and Surveys (England & Wales). They showed that since 1967 the number of legal abortions, proportionate to the number of live births, had risen, (from about 1% to about 18%). More surprisingly they also showed that the number of "other" abortions proportionate to the number of live births had also risen (from about 8% to about 9%).
At first sight this might appear to mean that "back street" abortions are also on the increase, despite the fact that "front street" abortion is now available on demand. However, we understand from a doctor who has studied this matter that this is not correct. In fact the explanation is that there has been a big increase in "spontaneous" abortions since 1967. This is almost certainly due to the damage which has been done to the wombs of so many women in this country by abortion. Abortion is apparently the perfect illustration of the saying about killing two birds with one stone. It not only kills the existing child, but it often leaves a time bomb behind in the shape of a damaged womb, so that the next child is also killed.
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The Doctors' Dilemma
An interesting point raising difficult legal and ethical problems was raised in the British Medical Journal of the 8th December 1979. An article referred to cases where a mother was expecting twins, and amniocentesis disclosed that one of them was abnormal. The article said,
"With discordant fetuses the ethical dilemmas of second-trimester abortion are intensified, since the abortion of an abnormal fetus must be balanced against the destruction of a normal, wanted fetus."
The article makes no mention of the legal implications, but surely the first question the doctor would have to consider would be whether the abortion of the normal fetus would be a criminal offence punishable with up to life imprisonment.
Doctors nowadays seem conveniently to ignore the fact that abortion for handicap is only legal if there is a substantial risk of serious handicap, and amniocentesis can rarely give any certainty about this. They also appear to ignore the fact that being "unwanted" is not one of the grounds for abortion under the Abortion Action 1967.
The article goes on to suggest a possible procedure for dealing with this difficulty by puncturing the heart of the fetus whom it is intended to kill without doing harm to the normal twin. However, since this "treatment" would not terminate the pregnancy it would appear to be doubtful if the defences given to a doctor by the Abortion Act 1967 would be available if such a procedure were followed.
It is also worthy of note that the article seems to take for granted that it is ethical to kill abnormal and unwanted children, which shows how far the ethics of the medical profession has sunk in the past 15 years.
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Abortifacients and Overpopulation
This Association has no views about contraception, for obvious reasons. However, it is becoming increasingly clear that the dividing line between this and abortion has been obscured by people who regard either practice as an acceptable method of population control.
There are two separate questions of importance to lawyers here. The first is whether certain methods used for population control are abortifacients or contraceptives. The second is whether, if they are abortifacients, the use of abortion for population control is legal within the provisions of the existing law.
In a letter to "The Times" of the 2nd February, 1980 a doctor argued that the intra-uterine device (sometimes called "the coil") was an abortifacient even though described as a contraceptive, and pointed out the consequences that followed this in the following words:-
"The I.U.D. represents abortion on demand and as such it should surely be as vigorously opposed by anti-abortionists as abortion a little later in pregnancy. Alternatively, if they can accept abortion by the I.U.D., they must explain on what medical, moral or theological grounds they distinguish between the acceptable destruction of a three day old foetus, and the unacceptable destruction of a three week old one."
This Association is not concerned with medical, moral or theological grounds for abortion, except insofar as justice is a moral issue. However, we are concerned with the question of legality.
The Perfect Crime
For this reason, as a result of remarks such as this, we asked two members of the medical profession to make a special study of this subject for the benefit of members of this Association, and their findings are published on page 2 of this newsletter. The article also clarifies the all-important fact, which appears on the front of all our newsletters, that life begins at conception.
Novelists like to talk about the perfect crime, but it may be that it has been left to the doctors who instal the I.U.D. actually to invent such a crime. Members are invited to apply their minds to the problem of how a prosecution under the law relating to abortion could be brought in respect of an abortion caused by such a device as is described in the article. Any suggestion put forward will be considered in the next issue of this newsletter.
In passing we would mention that we are always pleased to consider for publication in this newsletter any letters which members would like to write to the editor. If you would like a letter to be considered for publication please indicate this.
Abortion for Population Control
The other question raised by the use of abortifacients as contraceptives is whether the medical profession has now abandoned all pretence of providing abortion for therapeutic reasons, and is now frankly admitting that they are using it as a method of population control. If this should be the case, clearly abortions performed for such a reason must be illegal, because this is not one of the grounds laid down by the Abortion Act 1967. How far have doctors actually gone in this direction? Many leading members of the medical profession now belong to "The Doctors and Overpopulation Group". Dame Josephine Barnes, the President of this Group, who is also President of the British Medical Association, had the following points to make about abortion in an address given to members of the Kingston, Richmond and Epsom division of the British Medical Association last November. She said as follows:-
"I can't help but feel that attempts to undermine the Abortion Act are a mistake. There are too many abortions -100,000 a year-but attempting to restrict the number is a mistake. It is high time we doctors realised that we are in a consumer orientated society. We have a great chance to achieve a full life for all, and set an example to the rest of the world. Population control depends on expectations, but is essential for the survival of our present standard of living."
Although these are only a few words extracted from a lengthy speech, we do not think that they unfairly represent what the President of the B.M.A. was trying to say. The speech goes a long way to explain why so many doctors are now ready to provide abortions on demand, even though such a service appears to be completely contrary to medical ethics.
Abortion on Demand is a Reality
In a speech to the Standing Committee on the Abortion (Amendment) Bill on the 14th November, 1979, Mr. Michael Ancram M.P. referred to a poll which was answered by 50% of active gynaecologists practising in Great Britain, and of those who answered about 70% stated from their own experience that in practice abortion was available on demand in some N.H.S. hospitals.
It is difficult to understand why highly intelligent men, who have nothing financially to gain by doing so, should involve themselves on such a large scale in criminal activities. The allegiance of many of them to the Doctors and Overpopulation Group may provide some explanation of this extraordinary behaviour.
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Law & Ethics
All lawyers are aware that these two arbiters of human conduct may give contradictory replies to a given question, This was well illustrated by a letter, and a reply, printed in the magazine "Doctor" on 10th January 1980. The relevant part of the question was as follows:-
"Am I as a G.P. right to accept four five pound notes sent to me uninvited by the Matron of a Nursing Home, with a note thanking me for recommending my patient Miss X to her Home for an abortion, when in fact I had no idea that the young lady was pregnant?".
The answer the magazine gave to this point was,
"You must argue with your own conscience what you will do with the money, as you commit no criminal offence in accepting it, unless the accompanying letter implies that you are indulging in dichotomy".
Both the question and the reply raise many interesting questions. For example, one might consider in what way the answer would have been different if the question had related to money received by a solicitor from an estate agent who believed a client had been recommended to him; and if the letter had been published in the Law Society's Gazette. It would also be interesting to know how widespread this practice is, and what steps the British Medical Association proposes to take to stamp it out.
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.
