The Association of Lawyers for the Defence of the Unborn
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| Newsletter 14 Summer 1982 |
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
Summer 1982
Number 14
News and Comment
Annual General Meeting
The A.G.M. this year will be held in the Canterbury Room of the Charing Cross Hotel, Strand, London, at 2.00 p.m. on Saturday, 19th June. If you are coming, it would be of help to our Secretary if you would kindly let him know in advance so that he can arrange the appropriate number of chairs and cups of tea. As always, this meeting will not be an occasion for formal speeches, but for practical forward planning. This is your chance to come and tell the Committee what we should be doing, and for us to plan together how to achieve our objectives more effectively.
In our last Newsletter we invited nominations for the elected officers of the Association for the coming three years. The time for nominations has now closed, and 4he following nominations have been received. All the nominees have accepted nomination. They are as follows: Mr. Michael Bell, Chairman; Mr. Robin Haig, Vice-Chairman; Miss Gabrielle Hanley, Vice-Chairman; Mr. Christopher Fradd, Secretary; Mr. Tom Bowles, Treasurer. It is the intention of the elected officers to ask the appointed members of the committee to continue to serve during the coming year, and they have agreed to do so. They are Mr. Gerard Wright, Q.C, Mr. David Poole of the Northern Circuit, Mr. Brian Gill, Q.C. (Chairman of our Scottish Branch), and the following solicitors: Mr. Eric Moyle, Miss Lesley Cottrill, Mr. Basil Pinsent, Mr. Peter Kelly, Miss Lesley Wootton; and also Mr. Peter Golding, a Student of Law at Bristol University, who represents our members in Colleges and Universities.
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Legal Aspects of "In Vitro" Fertilisation
By Mr. Gerard Wright, Q.C.
"In vitro" fertilisation, literally fertilisation "in glass", occurs when an unfertilised ovum is removed from a female and is then fertilised in the laboratory by male sperm. The ovum thus fertilised (known as the "con-ceptus") can thereafter be implanted in a womb. If all goes well, this conceptus will then develop in the womb in the normal way and will eventually be born as what is popularly called "a test-tube baby".
The moral, ethical and social problems which in vitro fertilisation can give rise to are legion, and are a challenge to experts in these fields. The purpose of this article is not to wrestle with these fascinating problems, but to examine the legal status of the in vitro conceptus.
Once an in vitro conceptus is implanted in a womb it undoubtedly has the same status as a conceptus which has been fertilised in the normal and natural way. The fact that conception has occurred in a laboratory instead of within the human body is no justification for distinguishing the one from the other. Both are entitled to the protection of the Offences against the Person Act 1861 (section 58, forbidding the procurement, or attempted procurement, of a miscarriage), of the Infant Life (Preservation) Act 1929 (protecting the child capable of being born alive), and even of the restrictions on abortion imposed by the Abortion Act 1967, in so far as such restrictions are being adhered to and enforced.
The real problem for the lawyer arises in relation to the in vitro conceptus before it is implanted in a womb. At this stage, although human conception has certainly occurred, the conceptus, whilst it remains in vitro, has no statutory protection. Section 58 of the Offences against the Person Act 1861 affords it no protection, for the destruction of an in vitro conceptus is not the procurement of the miscarriage of a woman since, ex hypothesi, a test tube, and not a woman, is "carrying" it. Likewise the Infant Life (Preservation) Act 1929 avails not, for that Act protects a child "before it has an existence independent of its mother", and, whilst in vitro, the conceptus is in fact existing independently of its mother.
As no statute provides protection for the in vitro conceptus, one asks whether the scientist is free to do what he likes with the conceptus so long as it remains in vitro. May he at will pour it down the sink or conduct upon it whatever macabre experiment may take his fancy? Has the in vitro conceptus no protection in law?
Although no case has come before the Courts, it is suggested that the Common Law is sufficiently adaptable that it can, and in time will, provide a solution to this problem.
At present an in vitro conceptus is implanted in the womb when it is 5-7 days old. Until then it is self-sufficent, but after this time it will die unless it receives nourishment from a placenta. Few would doubt, however, that modern research will soon enable an in vitro conceptus to survive in vitro for, say, three months; all that it requires is the equivalent of placental nourishment to enable it to survive and grow, and the development of this nourishment artificially is within the reach of modern science. And when three months has been achieved, will not six be in sight? Indeed it is no fantasy of science fiction, but a practical possibility, that, probably this century, the production of a living full-term baby will be achieved entirely in vitro.
When this stage is reached would anyone deny that the Common Law will so adapt itself as to grant protection to this living, but still in vitro, baby? But if protection is given to this full-term child, where does one draw the line and deny protection? At six months? At three months? At one week? Truly there is no logical point at which a line can be drawn, for at each point there is a living human conceptus albeit at different stages of development. Statute Law makes no distinction between these various stages in protecting the conceptus developing in the womb and, by analogy, neither should the Common Law in protecting the conceptus developing in vitro.
There was a time when the Common Law only protected a conceptus "quicked in the womb" on the mistaken assumption that only then was the conceptus living. However, the idea that "quickening" provides some kind of watershed has long been exploded, and modern embryology accepts unquestionably that human life begins at conception. The Common Law does not lag behind the development of modern science. It is adaptable, and it is suggested that, just as it would be unthinkable that, if called upon to do so, it would fail to protect a fully mature, but still in vitro, conceptus, so also it will protect the in vitro conceptus at every stage of its existence. That the Common Law should protect human life is no strange thought.
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The Medical Profession and the State
Despite all the efforts of this Association, and other organisations in this country concerned with the right to life, the outlook for the unborn child today continues to deteriorate. Latest statistics from the Office of Population, Censuses and Surveys show that today more than half of all children conceived by single mothers are killed before birth; one in three of all children conceived by women aged between 16 and 19 are killed before birth, and one in ten of the children of married women are killed before birth. These figures relate to notified abortions only, and, as we have pointed out in previous Newsletters, there is substantial evidence that many abortions carried out in hospitals are not notified. What is one to make of this situation?
The Abuse of Medical Skill
We are given to understand that in Russia it is the members of the K.G.B. who decide which "unwanted" members of society shall be liquidated. In Britain today members of the medical profession seem to perform this function. Every day our doctors select some three hundred of our children to be killed before birth. In some cases the pressure for the abortion comes from the doctor, and in other cases from the mother or father; but practically never does an abortion take place where a child is wanted, which clearly shows that these abortions are not performed on the grounds of medical necessity. In the days when the death penalty was considered an appropriate punishment for certain crimes, nobody could be condemned to death without a fair trial and after a guilty verdict had been given by twelve impartial people. Now the powers of life and death have been taken away from judges and juries, and have been put in the hands of doctors, who in many cases may have a financial interest in the outcome of the decision. This is not medicine. It is massacre.
On 13th November 1981 Dr. J. Marks, the Chairman of the representative body of the B.M.A., wrote to The Times saying:
"Every decent person" felt "revulsion for Soviet physicians who misused their professional skills".
The misuse to which he was referring was the practice of certifying people to be mentally ill who were not mentally ill. This is of course exactly what Dr. Marks' colleagues in this country are doing when they certify that they perform abortions on the grounds of the mental health of the mother. This is the "ground" under which most abortions are performed today, and the reason commonly given is "stress".
Dr. Marks went on to express the hope that
"continuous publicity might shame the Soviets into acting in accordance with the laws of humanity".
We look in vain for an equally forthright condemnation by the B.M.A. of those doctors in this country who are misusing their status and professional skills for similar inhuman ends.
The Duty of Doctors
The fact is that many members of the medical profession have forgotten the purpose and duty of their profession. This is laid down clearly enough in section 1 of the National Health Service Act 1977, which imposes a duty on the Secretary of State "to secure improvement in the physical and mental health of people and in the prevention, diagnosis and treatment of illness". Instead of carrying out this duty, for which purpose they are employed by the State, some doctors are going in for social engineering. They provide abortions because they see them as a remedy for a threat to a career, bad housing, financial difficulties, large families and the like. It is significant that 2,500 doctors in this country belong to an organisation called "Doctors and Overpopulation", which sees one of the aims of the medical profession as keeping down the surplus population.
Every doctor who diagnoses a pregnancy knows that from that time on he has two patients to care for. Doctors are increasingly able to treat and cure illnesses affecting the unborn child whilst the child is still in the womb, and the medical profession clearly acknowledges a duty of care in such cases. If one patient wants the other patient dead, is the gynaecologist thereby immediately absolved from his duty of care to that other patient? Of course not. Even if the mother's health is at risk it still remains his legal and ethical duty to do his best for both patients.
The Duty of the State
At the time of the trial of Dr. Arthur many doctors were heard to be saying that the State should not interfere with medicine and with clinical decisions. Be that as it may, when doctors start killing patients with the object of solving social problems, they come into direct conflict with the duty of the State to protect all human beings living within its jurisdiction from being arbitrarily killed.
Once a child has been brought into being in the womb, that child is a person towards whom the mother, her doctor and the State owe a duty of care. Quite clearly the reason why abortion was illegal in this country until 1967 was that the State recognised its duty to protect the life of the unborn child, and did so by appropriate legislation. The State's duty towards the child at this stage in his life is particularly high, for the very reason that he is in an especially vulnerable position, and unable to do anything on his own behalf.
The law against abortion, if it were properly enforced, would not interfere with clinical decisions; but it would stop doctors from misusing their status to try to solve social problems by killing patients who are "unwanted". It is quite clear that to enforce this law is a perfectly proper exercise of its duty by the State, and doctors who object to this have misunderstood the true function and nature of their profession.
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Legal Means of Preventing Abortion
There are a number of different ways in which the law can be used to safeguard the life of a child during the first twelve months after conception. It is important that members of this Association who may be asked to advise on the courses open to an interested party should be fully aware of the options. Such an interested party might be a parent, husband or friend of a pregnant woman, or of a woman with a newly-born handicapped child. Or a third party might be involved, such as a nurse, doctor or social worker.
For the assistance of members, therefore, it may be useful to mention briefly a few options, with an indication ol where further information can be obtained. The Chairman of this Association would be pleased to hear from any member who is consulted in such a situation. It may be that we can put members in touch with source material of which they may be unaware. It may be that we can put them in touch with another member who has already dealt with a case of a similar kind. We are always grateful to hear from members who have had experience of using legal remedies to save life, and who would be willing to pass on the benefit of their experiences to their colleagues.
One possibility which should always be considered is that of making a pregnant girl a ward of court, to prevent an abortion; or making a newly-born child a ward of court to prevent him or her being killed by doctors on the grounds of handicap. Another possibility to consider is actually making the unborn child a ward of court. For further information about these possibilities we recommend to members an article by Mr. Tony Radevski in the 4th September 1980 edition of the New Law Journal at page 813.
Another possibility which one could pursue is the taking of the pregnant girl, if under 17, or the newly-born child, or even the unborn child to a "place of safety". Section 28 (1) of the Children and Young Persons Act 1969 confers upon the Justices the power to grant an application for an authority to take a child to a place of safety. For a full discussion of this possibility, we recommend an article by Mr. Victor Smith in the 3rd October 1981 issue of Justice of the Peace, at page 593.
A member may be consulted by a person who wishes to obtain an injunction to prevent his wife from having an abortion. It is necessary to act quickly in such cases, and one possibility is appointing a guardian ad litem for the unborn child. For a case where a court in fact made an order of this kind see re Simms and H (1979) 106 D.L.R. (3d) 435 (Family Court of Nova Scotia). See also Halsbury's Laws (4th edition), volume 24, para. 896, and our own Summer 1979 Newsletter.
These steps might be worth considering, for instance, in a situation where a member was consulted by a nurse who was concerned that a child was being deliberately neglected in hospital, in the hopes that the child would die as a result. Apart from informing the police, one course of action here would be for the member to draw the attention of the hospital authorities to the offence. One could draw their attention not only to the fact that this could be murder or attempted murder, but also to section 1 of the Children and Young Persons Act 1933, which makes it an offence to neglect a child under 16. Such neglect would certainly be a continuing offence under this section.
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Schoolgirl Pregnancies and The Law
It is quite clear that there are "no go" areas within the Criminal Law, that is, areas where it is the policy of the government not to enforce the law. No doubt in some cases the makers of this policy have the best of intentions. But the effect is that criminals go unpunished, and so are encouraged to commit more and more crimes. Furthermore, the basic principle, of making a law and then not enforcing it, is wrong. It is wrong that law enforcement should become a matter of private judgment of the Law Enforcement Officers; and it is harmful to the fabric of our society as a whole, because it undermines the principle of the Rule of Law. If a law works injustice it should be changed, not quietly ignored. It just makes nonsense of the principle that our country is governed by the will of the people, if laws, made by those who are elected by the people to make them, are ignored by those who are appointed to enforce them.
Every year some 4,000 girls aged between 11 and 15 become pregnant. About half of all these pregnancies endd in abortion. Subject to certain exceptions it is an indictable offence for a man to have unlawful sexual intercourse with a girl under the age of 16 (Sexual Offences Act 1956 s.6). In nearly every case, whether a pregnancy terminates with the birth of a live child, or with the birth of a dead child as is the case of an abortion, clearly the doctors concerned and the D.H.S.S. know that an offence has taken place. Surely it is their duty to report this to the police, and for the police to bring a prosecution. In most cases the identity of the criminal should not be difficult to prove.
If all these cases were vigorously followed up by the police, the number of schoolgirl pregnancies would fall very rapidly. The fact that this is not happening is clear evidence that both the D.H.S.S. and the medical profession and the police are neglecting their duty, and are turning a blind eye to these thousands of breaches of the law.
It is no doubt an increasingly common attitude in our society that it is not a very serious matter for children under 16 to have intercourse with one another, and indeed in the few cases where prosecutions are brought, this is almost invariably where the man involved is an adult. It does not fall within the purposes of this Association to comment on the desirability of teenage intercourse; although the fact that as a result there are today thousands of school-age mothers who are unable either to support their children adequately or to complete their education because of being responsible for a child, is no doubt a grave social evil.
What is of concern to this Association is the fact that about 2,000 unborn children are killed every year simply because their mothers are of school age, and as a result the children are seen as a liability. These 2,000 deaths could be prevented if the law were properly enforced. We urge all members of this Association who have any influence in the appropriate quarters to use their influence to encourage prosecutions of the fathers in all cases of pregnancies of unmarried girls under 16.
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News from Overseas
It is often useful to take a glance overseas to see what is happening to the pro-life cause in other countries, in the area which is of concern to this Association.
We note that despite the amendment of the New Zealand Abortion Act, by the addition of words limiting legal abortion to cases where there is a substantial risk of serious injury to the mother, the number of abortions performed in that country is still increasing. The proportion of abortions to live births has doubled over the past two or three years.
An American Federal Court has upheld a Florida law requiring that a husband be notified prior to an abortion on his wife. The denial of this right to the husband was called by the court "a perversion of the institution of marriage". Full details of this case can be obtained from our sister organisation in the United States, which is known as "Americans United for Life Legal Defense Fund". Their address is: 230 North Michigan Avenue, Suite 915, Chicago, Illinois, 60601, U.S.A.
In America pro-life groups have for some time past been undecided as to what course to pursue in amending the law to protect the unborn. The National Right to Life Committee, which boasts thirteen million supporters in the U.S.A., has now reached agreement on an amendment to the constitution. The crucial section of this amendment is as follows:
"With respect to the right to life guaranteed to persons by the Fifth and Fourteenth Articles of Amendment to the Constitution, the word "person" applies to all human beings, irrespective of age, health, function or condition of dependency, including their unborn offspring at every stage of their biological development including fertilisation."
On the 23rd March 1981 the United States Supreme Court by a six-to-three majority upheld the constitutional legality of a Utah law, which requires that parents be told when their daughter under 16 seeks an abortion. The case is entitled H.L.-v.- Matheson, and further details can once again be obtained from Americans United for Life Legal Defense Fund.
The attention of members is also drawn to a recent Norwegian case. This was a civil action by the Norwegian Government in the Malagon District Court, Tromsoe. This case was reported in The Times for 3rd February 1982. The Times reported that in its judgment the court said that it failed to see that abortion brought about artificially was anything but killing a small human being, and quoted the judge as follows:
"It is impossible to fix any point on the road from conception to birth where an acceptable limit can be set for performing an abortion."
It is understood that the government is to appeal against the decision, which was to the effect that a local vicar was entitled to continue in his parish, despite refusing to carry out his official duties as a protest against abortion on demand.
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Postscripts to R.-v.-Arthur
It is possible that some hospitals may take a less serious view of "allowing children to die" by neglect, following the acquittal of Dr. Arthur on a charge of attempted murder last October. They would be unwise to do so. One of the problems for the prosecution in the Arthur case was to prove that the attempt had been completely constituted, because the defence argued that what Dr. Arthur had done was merely "a holding operation". However, the Criminal Attempts Act 1981 came into force on the 27th August 1981. This did not affect the Arthur case, because the events which gave rise to that case took place in June 1980 and Dr. Arthur was charged in February 1981. There seems little doubt, however, that the Act will make it much more difficult to plead "a holding operation" as a defence in any future proceedings for attempted murder.
Section 1 (1) of that Act provides that,
"if with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence."
Murder is one of the offences to which the section applies.
A clarification by the Attorney General
This Association welcomes the statement by the Attorney General, Sir Michael Havers, in the House of Commons on the 9th March, with reference to the trial of Dr. Arthur. He said that he was satisfied that the law relating to murder and attempted murder was the same then as it was before the trial; that it was the same irrespective of the age of the victim; and that it was the same irrespective of the wishes of the parents, or any other person having a duty of care to the victim. He was also satisfied that a person who had a duty of care might be guilty of murder or attempted murder by omitting to fulfil that duty, as much as by committing any positive act.
A useful analysis of the case
For any member interested in an analysis of this case, and in particular the summing up, we strongly recommend the pamphlet produced by Life (Save the Unborn Child) entitled "Regina-v.-Arthur". We also strongly recommend the Spring edition of "Life News", which also contains a very full commentary on the case, and also on a number of matters relevant to the law relating to abortion. Both these publications may be obtained from Life at 7 Parade, Leamington Spa, Warwickshire.
A disgraceful Bill
A draft Bill was printed in the Law Society's Gazette on the 27th November 1981, which proposed to make it lawful to kill babies up to 28 days after birth, subject to medical safeguards. One wonders why the authors of the Bill proposed stopping at 28 days. The Bill was apparently based on the premise that there is nothing wrong with killing children, if they are seriously handicapped.
It is understood that the authors of this draft bill are now seeking an M.P. willing to bring it in as a Private Member's Bill. We urge all members of this Association to warn their M.P.s about this new threat to the right to life, and to urge them to oppose it, should it come before Parliament.
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Amniocentesis and Child Destruction
Towards the end of last year our Chairman was one of the speakers at a conference organised by members of the medical profession in Manchester. At that meeting there was some discussion about the crime of child destruction. This offence is committed by killing in the womb a child capable of being born alive, unless the destruction is for the purpose only of saving the life of the mother. Dr. Beryl Corner, a distinguished paediatrician from Bristol, commented that in her experience a child was capable of being born alive, following a miscarriage, from seventeen weeks after conception onwards. The techniques of modern intensive care, however, had not yet advanced to the stage where life could be sustained in such children for very long. The length of time for which life can be sustained in a child is, of course, irrelevant to the law on this matter. Once the child has reached the age where he or she is capable of being born alive, killing that child in the womb is child destruction.
At the conference the question of amniocentesis was also discussed. Members will recall that a full description of this technique was included in our Winter 1979 Newsletter (Number 4). It is in essence a technique for detecting handicap, so that handicapped children can be destroyed in the womb. The doctors at the conference were in agreement that for medical reasons this method of testing for handicap cannot be effectively carried out before approximately sixteen weeks from conception.
Furthermore, once the test has been made, it takes about two weeks before the results can be definitely known. The only purpose which this test serves is that of abortion, because there is no way of treating in the womb at the present time the defects which it might reveal. For this reason women are often asked before the test is given to consent to having an abortion if defects are diagnosed, and in fact diagnosis of defects by amniocentesis is followed by abortion in over 90% of cases.
If one puts together the facts given in the first and second paragraphs above, it is immediately apparent that nearly all abortions following amniocentesis must take place between 18-20 weeks of pregnancy, that is after the time when a child is normally capable of being born alive. It is clear, therefore, that in nearly every case an abortion following amniocentesis must be the grave crime of child destruction, for which the punishment is up to life imprisonment.
An article in The Lancet of 21st November 1981 stated that screening for thalassaemia, a disease common among people of Mediterranean origin could not be carried out until the 18th to 20th weeks of pregnancy. Nevertheless, the article said that screening had dramatically reduced the number of infants with thalassaemia born to members of the Cypriot community in London. In fact, of course, screening has not reduced the number of such infants at all. It has been the termination of pregnancy following screening which has reduced the number of such children being born, and each of these terminations necessarily involves the crime of child destruction. No prosecutions have followed any of these criminal acts, despite the publication of this fact in The Lancet. When famous journals can describe in this way the criminal activities of doctors, without any prosecutions being brought, it is little wonder that many doctors have come to believe that they are above the law.
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.
