The Association of Lawyers for the Defence of the Unborn
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| Newsletter 16 Winter 1982 |
Contents: Introduction; Conscientious Objection; In Vitro Fertilization
The Association of Lawyers for the Defence of the Unborn
40 BEDFORD STREET, LONDON, WC2E 9EN
Chairman M. N. M. BELL, M.A. (Cantab.),
Vice Chairmen R. M. HAIG, LL.B.. and Miss Gabrielle HANLEY, LL.B.
Hon. Secretary C. R. FRADD, M.A., LL.B. (Cantab.),
Hon. Treasurer T. G. A. BOWLES, M.A. (Cantab.),
Winter 1982
Number 16
News and Comment
Introduction
In this issue we are delighted to be able to publish two articles on matters of great and immediate importance. In the first article our Secretary, Mr. Christopher Fradd, answers a question which has often been put to this Association by doctors. This is whether a doctor who refuses to recommend an abortion on the grounds of conscientious objection could be sued for damages.
In the second article Mr. Kevin Andrews, a solicitor and .barrister practising in Australia, examines some of the legal issues raised by the new science of in vitro fertilisation. We make no apology for returning at greater length to this topic, which was dealt with briefly by Mr. Gerard Wright Q.C. in our newsletter number 14, because it is at present under consideration by various commissions, whose deliberations will no doubt in due course lead to legislation.
So far as this Association is concerned, our position with reference to in vitro fertilisation is simple and unequivocal. The fertilisation of the female ovum by the male sperm is the beginning of a new human life, with all its vast potential. However that fertilisation is brought about, from that moment on there is a new human life in being, which is entitled to the same legal protection as the life of any other member of our society. There can be no moral or logical justification for the view that the life of a human being at this early stage is of less value than at some later stage.
It is the intention of this Association to make every effort to ensure that every new human life in being, whether begun in a test tube, or in the womb, receives the full protection of the law to which that person is entitled. We shall continue to urge all members of our profession to be true to the fine tradition of the legal profession in this country, which has ever been the principal defender of the rights of the individual, no matter how small or how helpless that individual may be, in the face of those who would wish to destroy him or her.
To enable our two learned writers to expound their ideas as fully as possible, our usual report on the progress of the Association has been omitted from this newsletter. However, we shall be reporting fully on this in our next newsletter, as usual.
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Conscientious Objection
One of the most distressing aspects of the Abortion Act is the change in social attitudes to which it has led. Whereas before the war to have an abortion was known to be criminal, and afterwards (despite the 1938 case of R.-v.-Bourne) generally regarded as being in ordinary cases both legally criminal and morally shameful, nowadays it is treated as being permissible, normal, even fashionable. The pregnant women whom doctors are daily seeing in their surgeries are, of course, largely of the younger generation and quite naturally express the modern outlook almost instinctively as a matter of course.
They even regard an abortion as their right should they wish it. In these circumstances doctors whose principles accord with the old view of the impropriety of abortion wonder how they stand. Is a doctor today even allowed to do what until recently it would have been obligatory for him to do and refuse a request for abortion — refuse to kill deliberately an innocent unborn child?
It should be borne in mind that, in spite of the enormous change in social attitudes in this century, there have in fact been very few changes in the law relating to unborn children; indeed only three: (i) the Infant Life (Preservation) Act 1929; (ii) the Abortion Act 1967; and (iii) the Congenital Disabilities (Civil Liability) Act 1976. The 1929 Act created the offence of child destruction in the case of children capable of being born alive. The 1976 Act, which I shall discuss later, was passed in response to the unsatisfactory outcome of the thalidomide affair. The Abortion Act 1967 was the critical measure.
Note well the scheme of this Act. It bases itself upon the old law. This is most important. It does not repeal the old law (under which all abortion was illegal until 1938 and most abortion thereafter). Quite the opposite — in s.5 it emphatically re-asserts the old law as it was before Bourne's case. All that the Abortion Act does is to exempt a doctor who aborts from criminal prosecution for procuring the miscarriage of a woman, if two doctors have previously formed certain opinions in good faith as to risks to life or of injury to physical or mental health. It does no more than that. Neither was that just an accident. It should be remembered that the Act was the product of two separate influences — not just the clamour of liberal women for permission to have their babies killed, but also the resentment of qualified doctors against back-street abortionists (doubtless quite as intense as the feelings we solicitors have against unqualified conveyancers). Accordingly the Act perfectly deliberately re-enacts the general illegality of abortion with a limited exemption for qualified doctors holding certain opinions in particular cases. In other words the law permitting certain abortions is on a purely negative footing.
The crucial result of this is that abortion remains prima facie illegal. You would never believe it to examine the abortion statistics or even to glance at the advertisements on the London Underground, but nonetheless that is the position in law. It is in practice, for evidentiary reasons, difficult to prosecute a criminal abortionist successfully. And, of course, a baby who has been killed does not survive to complain about it. But these facts do not alter the fundamental state of the law, which is that abortion is essentially illegal unless in any particular case a doctor can bring himself within the exemption granted by s.l of the Act.
Thus the Abortion Act is purely permissive and not mandatory. It does not give a mother a right to an abortion, pace Stephenson L.J. in McKay v. Essex Area Health Authority & Anor. ([1982] 2W.L.R. 890 at p. 901.). When liberals refer to "a woman's right to choose an abortion" they are expressing their own philosophical outlook; they are not talking about the law of England which confers no such right whatever.
No duty to abort
Equally the law does not impose upon any doctor a duty to abort. That the Abortion Act itself imposes no such duty is apparent from its own wording, and was confirmed to be the case by Stephenson L.J. in McKay's case (supra at p. 901). It was thought at one time, following R.-v.-Bourne ([1939] 1 K.B. 687), that a doctor might have a duty to abort in certain serious cases of danger to the mother's life or of grave permanent injury to her physical or mental health (cases which are mercifully very rare these days), and s.4(2) of the Abortion Act refers to the possibility of such a duty existing. The ruling in Bourne's case, however, was abolished by s.5(2) of the Abortion Act itself, and this quite deliberately for the purpose of removing an unwanted accretion to the common law which had unintended side effects, through an extension of the defence of necessity, in relation to other crimes altogether. There was no other source apart from Bourne's case from which any duty to abort even in serious cases might derive, for neither the common law, nor the old text book writers, nor the old statutes knew anything of any such duty — quite the opposite, they universally treated abortion as a most heinous crime.
Accordingly the ruling in Bourne's case having been repealed, the duty derived from it (and from it alone) must have ceased to exist. Thus s.4(2) is seen to consist of words empty of meaning.
Incidentally, the Abortion Act did in fact expressly exempt, by s.4(l), not just doctors but everybody concerned from any duty to participate in abortion operations if they conscientiously objected to taking part. This is a broad general exemption not restricted to the criminal law. It applies to "any duty, whether by contract or by any statutory or other legal requirement". Hospital boards and other employers may not impose duties expressly forbidden by statute and therefore this subsection gives complete protection to all doctors, nurses, anaesthetists and ancillary workers who conscientiously object to participating in abortion operations (although I fear it does not stop employers from restricting recruitment to those willing to carry out abortions).
The duty of care owed to the child
I turn next to the subject of a doctor's duty towards the unborn child of his pregnant woman patient; not the nature and extent of that duty (for that lies beyond the scope of this article) but simply the question whether a doctor has a duty of care towards the unborn child at all. Perhaps the reader's reaction is to say, "Of course he has such a duty — how outrageous to suggest otherwise". Would that it were so clear. Naturally a doctor treating a pregnant woman had a duty of care towards the child at common law as elucidated by Lord Atkin in the leading case of Donoghue v. Stevenson ([1932] A.C. 562). The child is closely and directly affected by the doctor's conduct and therefore the doctor had a duty of care towards him. Thus if a child were born injured by negligent ante-natal treatment or negligent delivery then the doctor would be liable. The whole issue is now covered by the Congenital Disabilities (Civil Liability) Act 1976.
Unlike the Abortion Act this statute was not grafted on to the old law, but completely replaced the common law by a new statutory code — s.4(5). Although the thalidomide case was settled out of Court, the legal problems faced by children seeking redress for injuries suffered before birth became sufficiently obvious for the matter to be referred to the Law Commission. The Commission was confronted by the task of devising a cause of action for children injured in the womb but not for those killed in the womb. It achieved this by confining a right to sue to those actually born, by removing any duty of care on the part of the mother (except while driving a motor car), and by limiting the class of persons a child may sue to those who also had a duty of care to the child's parent. According to the Commission's report, the aim was to make the child's right of action purely derivative from his parent's and to destroy any direct nexus of legal duty between the doctor and the child in utero. Nevertheless it is not clear that the 1976 Act, which was based on this report, has actually done this, for it provides by s.l (3) that the defendant (meaning for the purpose of this discussion the doctor, though in another context it might mean a drug company or indeed anybody else) is answerable to the child. The child can only sue after he has been born, but even so if the doctor is answerable to the child in respect of ante-natal injuries then he must have a duty of care towards the child, for he can hardly be held culpable at the instance of someone to whom he owes no duty.
Summary of the legal position
Now we come to the nub of the matter. Can a doctor, who refuses to abort or to recommend his pregnant woman patient to another doctor who will abort, be sued by her for negligence if she suffers some injury, physical or mental, from carrying or bearing the child when she might not have suffered in that way if she had had an abortion? In my view he cannot, for the following reasons:
(i) His conduct will not have been negligent but deliberate, with the wholly laudable intention of saving the baby's life. (The position would, of course, be quite different if the doctor had in fact been negligent in his treatment of either the mother or the child.)
(ii) As mentioned above,* the doctor is under no duty to abort (or therefore to recommend an abortion) and he can hardly be accused of negligence for not doing or causing to be done that which he was under no duty to do — East Suffolk River Catchment Board v. Kent ([1941] A.C. 74). That is so even though the doctor might have had power to abort from the circumstances falling within s.l of the Abortion Act.
(iii) As mentioned above,** the doctor has a duty to the child as well as the mother and he is entitled to take both duties equally seriously.
(iv) The injury (if any) will have been caused by the carrying or bearing of the child, i.e. by natural causes and not by the action of the doctor.
(v) As abortion remains prima facie illegal any action ought to be barred on the principle ex turpi causa non oritur actio.***
C. R. Fradd M.A., LL.B.
Notes:
*Vide paragraph 6
**Vide paragraph 9
***From a wrongful cause no action arises
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In Vitro Fertilization
The birth of Candice Reed, Australia's first test tube baby, in Melbourne two years ago marked the commencement of an era of scientifically and medically available in vitro fertilization (IVF) in this country. As evidenced by the debate in the press and the establishment of hospital ethics committees, the programme raises a series of ethical and legal problems for the community to consider. Our laws are silent on many of the aspects of this scientific programme.
"Should we tolerate such a silence," asked the Chairman of the Australian Law Reform Commission, Mr. Justice Kirby recently, "allowing scientists and technologists to take our society where they will, with no prior opportunity for us as a nation, indeed as a species, to consider the implications and to lay down the acceptable rules within which these developments will occur?"
The law does not recognise the life of a person prior to birth (except in some limited ways) and no law applies specifically to the IVF programmes. Very little legal thought has been given to the subject as evidenced by the few articles appearing in this country in the last decade. More research has been undertaken in the United States but even there, the law journals are not flooded with articles on this question.
''The one thing that is plain is that the law on this topic is not a matter to be drafted behind closed doors by committees, however expert and sincere," said Mr. Justice Kirby. "It is certainly not a matter for doctors and scientists only, or for lawyers alone. It is not a matter for university scholars working in their offices or for individual researchers. It is not a matter for hospital ethics commitees. If ever there was an issue upon which there is a need for a profound and thoughtful community debate, this is it."
The purpose of this article therefore is to examine briefly, and of necessity rather superficially, some of the problems raised by the IVF programme. In doing so, it is recognised that this article examines both ethical and legal issues involved in the question, but does so in the belief that the two are intertwined and that lawyers can make an important contribution to the current debate.
What is "In Vitro" Fertilisation?
Because the process of fertilisation resulting from the fusion of an egg and sperm occurs outside the body it is known as In Vitro Fertilisation, meaning literally, in glass.
To obtain an egg, three small incisions are made in the abdomen by the surgeon who then uses a tiny telescope with its own light source — a laparoscope — to identify the most mature egg in the ovary. With gentle suction this egg is drawn into a narrow tube.
The egg is examined under a microscope, washed to remove layers of loosely attached cumulus cells, and then placed in a glass laboratory dish or test tube together with fresh or previously frozen sperm cells.
The single cell that results from the fusion of the egg and the sperm is called a zygote. It contains all the genetic information necessary to determine the life of a new individual. In the laboratory, the initial step in the formation of a human life takes place in a pot-pourri of chemicals known as the fertilisation medium.
After fertilisation, which is completed within six to twelve hours, the zygote is transferred to a growth medium. Following a further three days in a controlled environment, a ball of eight embryonic cells has formed, known as the "blastocyst". At this stage the embryo is transferred to its mother's uterus.
Legal and ethical grounds for objection to IVF
The current opinion may be that greater success in the implantation rate would probably considerably lessen the objections to clinical IVF of those who argue for the protection of the early human embryo partly because of what they consider excessive embryo loss. An American writer notes, "The practice of fertilizing only one ovum per attempted transfer, while preserving any remaining ova by freezing for future IVF and embryo transfer attempts, would resolve much of the 'discard' problem." In contrast, the approach taken by the Woods team in Melbourne has been to fertilize a number of eggs and then freeze the resulting embryos. What is the legal status of these frozen embryos?
From a legal standpoint then, does life begin with a successful IVF before implantation in the uterus, and can such pre-implantation fertilization be deemed in law a conception?
In so far as medical technology requires formation and subsequent destruction of multiple blastocysts in order to produce one blastocyst for implantation, it might be concluded that IVF entails an impermissible destruction of human life and should be prohibited. The United States Supreme Court acknowledged in Roe-v.-Wade that the question when life begins has been the subject of considerable debate. It is likely, therefore, that a decision that blastocysts should not be formed and then destroyed would be considered rational.
It is far less likely that a Court would consider the interest in protecting potential human life strong enough to justify an outright prohibition of IVF by individuals wishing to utilize the programme. In Roe-v.-Wade the United States Supreme Court held that the State's interest in protecting potential human life becomes compelling only when a fetus reaches the stage of "viability", defined by the Court as "the interim point at which the fetus becomes . . . potentially able to live outside the mother's womb, albeit with artificial aid."
Need
A second question is whether there is really a need for IVF. For example, what is the extent of infertility due to tubal occlusion? It has been suggested that there are available preferred alternative means of overcoming infertility due to tubal occlusion. Furthermore, is IVF really a medical need, and what concepts of disease are presupposed in that question? To what extent is clinical IVF "needed" when compared to other health care needs? Given the vast expenditure, many have questioned the ethics of using limited resources for this technology when more basic health care needs are still to be met.
Adequate Research
A third question is whether adequate prior laboratory research, including animal research, has been or is being done. The revised Declaration of Helsinki of 1975 insisted on this requirement for bio-medical research. Here too, conflicting answers are given, as illustrated by references to the inefficiencies of the Melbourne programme. The English researchers, Edwards and Steptoe, are reported as having lost about 200 transferred embryos in their medical research.
Third Parties
A further question relates to the involvement of third parties in the IVF procedures. For example, what is the position of donated ova in the in vitro fertilization process, or of early embryos transferred to the uterus of a third party or of the surrogate mother, as she has become known. Ethical evaluations of the procedures involving donated ova combined with the husband's sperm in an IVF procedure with the early embryo then transferred to the uterus of the wife, usually parallel the evaluations made of Artificial Insemination by Donor, and these procedures tend to be viewed as acceptable or not for much the same reasons. However, most "surrogate mother" proposals have been almost universally rejected by those who have weighed the ethical and other implications.
There are a significant number of substantial objections, including the possibility of the genetic parents requiring the surrogate mother to undergo amniocentesis and abortion; the possible refusal of genetic parents to take back a child born with serious defects; the possible custody conflicts between genetic parents and the surrogate mother; and the possibility that poor women might be induced into surrrogate motherhood.
Contested Parenthood
If a situation were to arise in which embryo transfer had been effected, a legal problem would be to determine which of the two contestants, the biological mother or the surrogate mother, should succeed.
There may, for example, be an agreement between A and B whereby B would carry the child until birth but then hand it over to A in exchange for a sum of money. One situation would be where B had performed her side of the bargain but was later charged with failing to register the child's birth. Another would be where B gave birth to the child but refused to hand it over to A, the biological mother, or where A the biological mother refuses to accept the child. Again, although the original agreement might have been that the surrogate was to keep the child, for example because she was incapable of ovulation; nevertheless the biological mother might later allege the child was hers and demand it from the surrogate mother. The law is then faced with a conflict in which it must determine who it should regard as the mother of the child.
There could be variations of the process, so that the baby produced is not so clearly the progeny of the childless parents as is apparently the case in the Melbourne programme today. For example, there could be a "donor" egg, fertilized by the sperm of the childless father and then implanted in the uterus of the childless mother, or a fertilized egg of the childless mother implanted in the uterus of a surrogate mother. To what extent would legislation be necessary to render the baby concerned legally the child of the sterile mother and her husband? It has been suggested that the scope of the existing adoption legislation should be extended so as to enable a sterile mother and her husband to adopt a fertilized ovum or an implanted embryo, where either the egg was that of a "donor" or the embryo was implanted in the uterus of a surrogate mother. There are further problems of commercial trafficking in "donor" eggs or in surrogate mothers, somewhat similar to those which have been referred to by the Australian Law Reform Commission in its Discussion Paper on Human Tissue Transplants.
As already outlined, the use of surrogate mothers could give rise to difficult legal questions. First, the status of the child would be a complex matter. Some of the problems include the parentage and legitimacy of the child; the rights to support and inheritance from the donor, the surrogate, and the IVF parents; and the right to privacy concerning the circumstances of birth of the child. Given the recent debate over the suggested rights of adopted children to seek out and contact their natural parents, these questions of privacy will need to be determined by our law makers.
Control of the Surrogate Mother
A further problem centres on the degree of control that the prospective IVF parents can achieve over the surrogate mother during her pregnancy. Should the IVF parents be able to limit the surrogate mother's intake of food and drugs during gestation, require periodic medical examinations, including intrusive techniques such as amniocentesis or other methods of fetal monitoring, or be able to control any decision whether the fetus should be aborted? Such problems might be resolved through contractual agreements, but should our Courts enforce contractual provisions which require a surrogate mother to abort, to refrain from a desired abortion or to submit to intrusive medical procedures?
In the United Kingdom this problem has partly been decided in terms of the Abortion Act 1967. A father cannot prevent his wife from having an abortion Paton v. Trustees of BPAS ([1978] 2 All E.R. 987). But should the biological mother whose embryo has been transferred be consulted if the surrogate mother requires to have an abortion? It has been suggested that on the basis of Paton the consent of the biological mother is as much an irrelevance as the consent of the father. In terms of the 1967 Act, a pregnancy may be terminated if its continuance would involve a risk of injury to the physical or mental health "of the pregnant woman" (Section l(i)). It seems to be clear therefore that the Act concentrates on the welfare of the pregnant woman, and the interests of any other persons including the biological mother would be irrelevant.
Informed Consent
A further question concerns the need for informed consent by participants in the IVF procedures. From an ethical point of view, it may be argued that the informed consent of both parents, the husband and the would-be mother is required; and that the consent should be directed to items such as: potential alternatives such as the adoption of existing children, the probable need for repeated laparoscopies, the low probability of success, the probability that the beneficiaries might be other couples, the source of the sperm and ova, the disposition to be made of sperm, ova and embryos not required for the transfer. The consent of the future child may also be an issue. It has been argued for instance that, because the unconceived and unborn cannot consent to the unknown hazards involved in being given life in this manner, IVF research is unethical ab initio. Others, of course, deny any relevance to the consent by the unconceived and unborn.
Future questions may relate to who should be chosen to donate ova and how many times should they be a donor, should a child have the right to know his or her biological mother, and should the public also have that right? How should these rights relate to matters of individual privacy?
Concern has also been expressed at the threat of "accidental incest" if comprehensive records of biological and surrogate mothers are not kept.
Actions on Behalf of the Child
It is possible that claims might be made on behalf of the IVF child for injuries that occurred before implantation or during gestation. The general rule is that an action may be brought on behalf of a child with consequences of prenatal injuries only if the child is born alive. Traditionally, live birth occurs when a fetus has left its mother's body and exhibits life signs such as independent breathing, arm or leg movement, or a beating heart. Although recovery historically has been limited to post-viability injuries, the trend in the United States has been for Courts to permit suits for injuries sustained any time after conception.
Kevin Andrews B.A., LL.B.
The Association of Lawyers for the Defence of the Unborn accepts the undisputed finding of modern embryology that human life begins at conception. The Association accordingly 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 father or by any other human being. The Association was founded by eight lawyers in May 1978 and already has well over 1000 members.
