The Association of Lawyers for the Defence of the Unborn
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| Newsletter 17 Spring 1983 |
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.),
Spring 1983
Number 17
News and Comment
Progress of the Association
On the 6th October 1982 a Conference was held by the Association at the Law Society's Hall in London. The Conference was well attended by members of both the medical and legal professions. Those of our London members who were unable to come missed a most interesting and informative evening.
A Conference was also held in Manchester on Saturday, 30th October, 1982. At this Conference Professor Robert Zachary, Emeritus Professor of Paediatrics at Sheffield University, and Mr. Gerard Wright Q.C. addressed an audience of approximately sixty members of the Association and friends. The Professor, who had also spoken at our London Conference earlier in the same month, again exposed the spurious arguments used to justify the killing of handicapped babies before and after birth. Mr. Wright spoke on the legal and ethical problems of "in vitro" fertilisation. The considerable interest aroused by these speakers showed the need for such Conferences, where the facts behind these important moral issues can be clarified by people with first-hand knowledge.
An informal meeting of members was held in Birmingham in September 1982 and was attended by a number of our members in the Midlands. Following this meeting it has been decided by the Committee of the Association that in 1983 the Annual General Meeting of the Association will be held in Birmingham, and it is hoped that this will enable all our Midlands members to attend. The meeting will be on Saturday, 25th June, and full details of the time and place will be given in our next Newsletter.
Our Northern Vice-Chairman, Mr. Robin Haig, represented our Association in a Granada TV programme screened in early October 1982. The subject for discussion m the programme was "test-tube babies". Only a brief period of time was available for each speaker, but the rights of unborn children were put forward strongly by our Vice-Chairman, by the Chairman of a local Life group, and also by our Vice-Chairman's wife, who was able to get in the last word from her place in the audience!
During 1982 most members of the Committee spoke on several occasions to local organisations, and it is clear that more and more people are looking to this Association for guidance on the legal aspects of the right to life of the unborn child. It is hoped that all members of the Association, and not just members of the Committee, will actively seek such speaking engagements, so that our views can be made known as widely as possible.
Membership
Members on joining sign a declaration expressing their support for our aims. One of our aims is to strive to create a new climate of opinion about this matter within our profession. It would do none of us any harm to ask ourselves if we are doing as much in this direction as we could. Your committee have recently produced an attractive new blue folder, brought up-to-date with full information about our Association. Please let us know how many copies you would like for sending to your friends and colleagues. Few of us, surely, can have less than ten friends within our profession who would benefit from seeing this leaflet. The leaflet is free. Please let our Secretary know the number you require as soon as possible.
Rights of the Child
We have had some correspondence with the United Kingdom Mission to the United Nations, who inform us that the Commission of Human Rights is drafting a new convention on the rights of the child. A comparison of the draft of the new convention with the existing Declaration of 1959 shows that the 1959 Declaration refers to the child "before and after birth", whereas the new one omits all reference to the child before birth. Our Chairman will be glad to send a copy of the new draft convention to any member who would like to make representations about this to the United Kingdom Mission at the United Nations.
Lawyers in Canada
We have been encouraged to receive the newsletter of "Advocates for Human Life", our sister organisation in Canada. Their newsletter opens with the words "A little over a year ago, with support and encouragement from A.L.D.U. in England, and Americans United for Life, five lawyers in British Columbia joined together to become the first directors of the Association of Advocates for Human Life". We wish this new Association every success in attaining their objectives, which are very similar to our own. They have already undertaken many activities and achieved much progress. We hope to include more news about them in a future newsletter.
Our Chairman and Secretary are in constant correspondence with pro-life lawyers and organisations of lawyers all over the world. Progress in alerting lawyers about the importance of the abortion issue to our profession is slow, but it is steady, and is by no means confined to countries which have the Common Law, although these countries tend to have less respect for the human rights of the unborn than do countries of other jurisdictions. This is largely due to the bad influence of the Abortion Act 1967, which provoked similarly unjust legislation in many countries where the Common Law prevails.
Lawyers' Christian Fellowship
Our congratulations and thanks go to the Lawyers' Christian Fellowship, who in their October 1982 newsletter printed a two-page article by our Chairman on "The Christian Lawyer and Abortion", in which he said :—
"If I take the life of another to preserve my liberty, my comfort or even my health, this cannot be reconciled with my duty to my neighbour, as acknowledged by English Law. That is why as lawyers, let alone as Christians, we must strive to see that as soon as possible the protection which the law gives to children before birth is brought into line with those basic principles of justice on which our whole legal system and our whole society is based."
Our thanks are also due to the Christian Law Review "Law and Justice", which has recently mailed 200 copies of our membership form to all their subscribers.
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When Life Begins
We have on more than one occasion pointed out in our Newsletters that to prevent the implantation of a fertilised ovum is to procure a miscarriage (i.e. abortion), because a fertilised ovum is new human life, which is of course carried by the mother from the moment fertilisation takes place. That conception occurs at fertilisation is no mere theory of ours; it is a scientific fact which is asserted by all medical dictionaries. Nevertheless, it is now being argued by those who wish to kill children between conception and implantation that one cannot rely on medical dictionaries as to when new life begins. It may, therefore, be worth emphasising that until the Department of Health and Social Security attempted to re-define the word "pregnancy", in its unsuccessful efforts to give an appearance of legality to its illegal provision of criminal abortion before implantation, this was the commonly held view of the medical profession. For example, in "Foundations of Embryology" by B. M. Patten (McGraw-Hill 1964), we read:
"It is the penetration of the ovum by a spermatozoon, and the resultant mingling of the chromosomal material each brings to the union, that culminates the process of fertilisation and initiates the life of a new individual. Every one of the higher animals starts life as a single cell — the fertilised ovum. The union of two such cells to form a zygote constitutes the process of fertilisation, and initiates the life of a new individual."
The book goes on to quote approvingly F. R. Lillie writing in 1919 as follows:
"There is perhaps no phenomenon in the field of biology that touches so may fundamental questions as the union of the germ cells in the act of fertilisation; in this supreme event all the strands of the web of two lives are gathered in one knot, from which they diverge again, and are re-woven in a new individual life history. The elements that unite are single cells, each on the point of death; but by their union a rejuvenated individual is formed, which constitutes a link in the eternal procession of life."
Professor Jerome Lejeune, in his book "Ethical Issues in Human Genetics" (Plenum Press 1973), states:
"If a fertilised egg is not by itself a full human being, it could never become a man, because something would have to be added to it, and we know that does not happen."
Those who wish to try to conceal this fact behind a fog of confusion sometimes say: "But the ovum is alive and human even before fertilisation. Are you saying that it is wrong to kill any live human cell?" The answer to this is well given by philosopher Germaine Grisez in his book "Abortion; The Myths, the Realities and the Arguments" (World Publishing Co. 1970). He says there :—
"The sex cells are formed from the living matter of man and woman; the sex cells are themselves alive. And so the result of their union does not really come to life, but simply comes to be a unified life — a new individual."
Innumerable authorities can be quoted in support of the above facts, but as they all say the same thing it would be tedious to reproduce them. The point is that however much the Department of Health and Social Security may try to re-define pregnancy, it cannot get away from the fact that the "morning-after" pills and other abortifacient pills and devices supplied by the Department are killing human beings today in this country on an enormous scale. And as lawyers we should be particularly concerned, because in every instance this is being done unlawfully. To procure a miscarriage is an offence under the Offences against the Person Act 1861, and there is no way in which these miscarriages can be brought within the exceptions provided by Section 1 of the Abortion Act 1967.
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The Consequences of Unrestricted Abortion
At the 1982 London Conference of this Association, members of the National Abortion Campaign stood outside the entrance to the Law Society handing pamphlets to those going in, which called for the abolition of all restrictions on abortion in this country. The people who advocate this have rarely applied their minds to the consequences of what they are demanding. They could not do better than look at the situation in Soviet Russia, where unrestricted abortion has been available for many years. A report on this in The Times on the llth May 1981 brought out number of significant facts which we could expect to see reproduced in this country if unrestricted abortions became available here. They may be enumerated as follows :—
- The birth rate in the Soviet Union is spiralling downwards, and the labour shortage has become acute.
- The Soviet Union has more abortions than any other country, and three times as many as the United States.
- On average, according to Soviet statistics, every Soviet woman has six to eight abortions during her lifetime, and some have as many as fifteen.
- Soviet medical reports put the ratio of abortions to live births anywhere between two-and-a-half to one and four to one.
- About 60% of abortions are performed on women aged 19 to 26, who are often unmarried students and workers living in hostels and communal flats.
- A survey of 7,500 women in Byelorussia found that 20% of women aborting their first pregnancies suffered chronic inflammation of the sex organs. It also found that 8% — 604 women — became completely infertile and were never able to bear children despite ten yea of treatment.
- Another survey found that 36% of young women became chronically ill after their first abortion, and it attributed this to the blow to their hormonal systems.
- The fact that in the Muslim south the family unit is larger and closer and abortions are rare is causing a rapid shift in the balance of population, as a result of which Russians will become a minority within the Soviet Union by the end of this century.
It is true that there are certain economic and social factors in Soviet society, which may not be applicable to the United Kingdom, but Soviet experience nevertheless gives a very good idea of what unrestricted abortion can do to a country, even to a country with an advanced civilisation and high medical standards. It is unfortunate that in this country no adequate surveys have ever been carried out to determine the consequences of abortion in terms of infertility, ill health and psychological damage. It appears to be Government policy that the facts about these things should not be made known. Otherwise there would seem to be no reason why the necessary research should not be carried out, and there is little doubt that its results would be highly significant.
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Medical Ethics
It was the almost unanimous decision of the Annual Representative Meeting of the British Medical Association in 1981 that new ethical guidance should be given to doctors on the treatment of severely handicapped new-born babies. However, the Association accepted that this was not a matter where the final decisions rested with doctors. Dr. Michael Thomas, chairman of the Association's Ethical Committee, said
"We must say to the public — you cannot leave us without moral guidance in this. You cannot turn your back on this issue and leave us with the responsibility."
Certainly the members of this Association can be said to be members of the public with a particular concern about this issue, and we are therefore delighted to publish our views about this matter for the assistance of Dr. Thomas.
Law and Morality
It has been said that morality and criminality are far from co-extensive. Nevertheless it is important that the law should be based on morality, rather than that morality should be based on the law. Many of our moral evils have arisen because people have taken their morality from the law. As the law has changed, 30 have moral standards, and the dismal results are plain for all to see.
In an era of changing law and morals, the medical profession, to whom, along with the Courts, the country entrusts the responsibility of safeguarding life, has a particularly grave responsibility. Because of these frequent changes, a doctor may have to ask himself before recommending treatment: Is it medically beneficial, and if so is it legal, and if so is it ethical? To answer all three questions satisfactorily he or she has to be not only a doctor, but also a person with some knowledge of law and some knowledge of ethics.
Undoubtedly the most difficult of these three questions for either the doctor or the lawyer to answer is the third one. What are the ethics of "terminating" human life? There seems to be a determined effort among some people in both professions to change ethical standards, but they convince nobody except those who are so anxious to believe that they will swallow any argument which tends to show that anything they want to do is objectively right.
What, then, are the ethical rules about preserving life which the medical profession must observe if it is to retain the trust of those whom it serves? The basic rule is that life must never be deliberately destroyed. But there are three questions which must first be considered :—
Omissions and Positive Acts
- What is the ethical distinction between allowing to die by omission, and causing to die by positive acts? If another human person is completely in my care and under my control, there is no moral distinction between allowing to die and causing to die. The less complete my care and control, the less onerous is my duty, with the omission to care for or treat becoming morally less objectionable.
- What is the ethical distinction between using ordinary and extraordinary means to preserve life? It must always be morally objectionable not to use ordinary means to preserve life in a person under my care and control. Hence a medical profession which claims to have a discretion as to when to use ordinary means such as feeding and nursing care to preserve the life of patients, must inevitably forfeit the confidence of those towards whom it has a duty of care. On the other hand, few people would consider it morally objectionable not to use extraordinary means which are of doubtful effect. This is an area where the discretion of the doctor may properly be exercised, and where he is entitled to take into account the likelihood of any long-term benefit to the patient. He is also entitled to take into account the availability of resources, other patients who need his care, and any other relevant considerations.
- Would the quality of life enjoyed by the patient vary the answers to either of the two above questions? It should not do so, because quality of life is a subjective assessment. What I would consider an unacceptable quality of life might be quite acceptable to another person. The quality of life of a person in a slave labour camp may be very low, but that does not entitle doctors working in that camp to kill him. This does not of course affect the principle that sedation to relieve pain is always permissible, even where one of the side-effects of the sedation is to accelerate death. What is gravely unethical and also seriously criminal is the administration of drugs with the intention of accelerating death or of causing death.
Human Rights
In a pluralistic society the basis of morality cannot be any one religion, but must be derived from the concept of human rights. Contrary to what some pressure groups seem to assume, by no means everything that a person wants is a human right. A human right is something which can be ascertained only by a close examination of our human nature, for it is derived from that and that alone. A human right is what we need to be fully and truly human, and to achieve our potential as human beings. The limit of our rights is circumscribed by two principles. The first is that nothing can be a human right which deprives another human being of an equally valuable right. The second is that any duty which I claim others owe to me by virtue of my human rights I must accept that I owe to others by virtue of theirs.
From these principles it is clear that the most fundamental right is the right to life, because without this no other right can be enjoyed. And the most fundamental duty is to respect and preserve the life of others. To the medical profession, and to a lesser extent to our own profession, society entrusts the responsibility of upholding these rights. Unfortunately in our time popular morality has deviated from these principles, and to some extent the law has followed popular morality. This has caused problems, particularly to members of the medical profession who may find that the law now permits actions which many of them find ethically completely unacceptable. This leads to their being put under pressure from patients and others to do things which their consciences will not permit them to do. This Association has the greatest sympathy with the medical profession in this predicament, and any member of the medical profession who wishes to consult us about any problems of this kind can be assured of such sympathetic assistance from us as the rules of our profession permit us to give.
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Abortion and Human Rights
Another recent case has thrown some useful light on the attitude of the Courts towards the subject of abortion and human rights. This was the case of McKay v. Essex Area Health Authority and Another ([1982] 2W.L.R.890). The judgment of Lord Justice Stephenson in that case repays careful study.
Mary McKay had been born disabled as a result of rubella (german measles) which infected her mother early in pregnancy. She brought proceedings (by her uncle and next friend) against the doctor alleging (inter alia) that he had negligently failed to advise her mother of the desirability of an abortion. As a result she had been born handicapped, and she claimed damages for "wrongful entry into life."
The Court held that neither defendant was under any duty to the child to give the mother an opportunity to terminate the child's life, although that duty might be owed to the mother. It is noteworthy that this is the first time that a Superior Court has mentioned the possibility of a mother claiming damages on the ground that her doctor failed to recommend an abortion. This comment, which was obiter, appeared to follow from a previous statement by the Lord Justice.
The Abortion Act 1967, he said, gave mothers a right to terminate the lives of unborn children. This remark too was made obiter, because the question before the Court was the rights of children, not the rights of mothers. Nevertheless, it is worth examining it closely, because in any future proceedings by the mother against the doctor for failing to recommend an abortion, it would be necessary to show that the 1967 Act did in fact give her such a right.
It is suggested, with great respect to his Lordship, that in fact the Act gave no such right to mothers. The most it can be said to have done is to have relieved them from the risk of proceedings for being a party to a criminal offence, if their pregnancy is terminated by a registered medical practitioner after two doctors have formed the necessary opinion in good faith. The normal way in which rights are created at English Law is by imposing a duty on somebody else, but in fact the Abortion Act 1967 did not impose any duty whatever on doctors to provide abortions.
The duty of doctors remains the same before and after the Act, which in simple terms is just to do their best for their patients, exercising reasonable care. Any doctor consulted by a pregnant woman knows that he has two patients, and he has to do his best for both of them. His duty of care would, therefore, prevent him from recommending treatment for one patient which would harm the other, unless it was absolutely unavoidable.
Doctors are today discovering more and more ways in which the unborn child can be treated, and even operated on, in the womb, and one consequence of this is that they are more and more coming to recognise what was in reality always the case, namely, that the child is as much a patient of theirs as is the mother. The doctors' powers may have been widened somewhat by the Act, in that it made lawful certain acts which were previously criminal, but every lawyer knows that it is a person's duty to another which gives rise to enforceable rights, and not merely a power to do something.
Far more significant was the Lord Justice's ratio decidendi, his reason for saying that a doctor owes no duty to a child to terminate his or her life. To impose such a duty towards the child, he said, would make a further inroad on the sanctity of human life, and this was contrary to public policy. And why is it contrary to public policy? The Judge tells us that it is because of the "sanctity" of that life.
This must surely be the first case where an English Court has recognised that the life of the child in the womb has "sanctity". One would like to know what the learned Lord Justice meant by that word, but from the context it is quite evident that at the very least he meant that human life is something of great value which English Law respects and defends, and that it is contrary to public policy to extend the grounds on which someone may forcibly take it away.
This judgment therefore recognises the child in the womb as being a person having rights protected by law, even though his Lordship stated that "by the 1967 Act the legislature made a notable inroad on the sanctity of human life". It would certainly appear that in any future case the things authorised by the Act are likely to be construed restrictively by the Court, and that the Court will be reluctant to bring about any further erosion in the rights of the child before birth.
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Abortion for Spina Bifida — is it legal?
At a symposium of pre-natal diagnosis at the Montreal Clinical Research Institution, Dr. Frazer of the Department of Human Genetics at McGill University had an interesting point to make about tests carried out to detect spina bifida in the unborn child.
Explaining the difficulties under which he and his colleagues have to work, he said that many of the tests only show that a defect is present, but do not show the degree of defect. This meant that aborted babies could range from the severely defective to those that were nearly normal. He complained that because of this they were forced to be careful to avoid "getting into trouble with the law". In view of this he expressed the view that, in case an abortion should turn out to have caused the death of a virtually normal baby, the reason for the abortion should be classified as "maternal anxiety" rather than genetic reasons.
Professor John Lorber of Sheffield University is well known in this country for his advocacy of allowing newborn children to die who are born with very serious spina bifida. In November 1981 he presented the results of his research in the "Archives of Disease in Childhood". He examined the outcome of 120 infants with open spina bifida born between May 1971 and December 1976. 71 of them received no treatment, and all of them died. Of the 49 who were treated, 7 survived without handicap, and 36 of the others were still living after three to nine years. There are two points to note about this.
The first is that the 71 babies who received no treatment might have survived if they had received treatment, and we are not aware of a prosecution having been brought in respect of a single one of these 71 deaths. The second point to note is that the 7 babies who survived without handicap and the other 36 who were still alive would all have been aborted if the spina bifida had been detected in the womb. This is because where spina bifida is detected, doctors do not tell mothers that the children may be born without serious handicap, or may survive for many years. They simply tell the mothers that the children have spina bifida, and that therefore they recommend abortion. The mothers naturally assuming that there are gross defects in their unborn child, normally allow themselves to be guided by the doctor in this matter, and of course if the aborted child shows little or no defect, the mother is not informed.
The main cause of concern from the point of view of lawyers is that abortion for handicap is only lawful in this country where there is a substantial risk of serious handicap. Where the tests are totally unable to determine the degree of handicap, how can doctors possibly say that there is a substantial risk that the handicap will be serious in a particular case?
The duty of the doctor is surely to ensure the survival of as many patients as possible. We do not see the legal or moral justification for abortion under these circumstances.
As a final footnote it is worth mentioning that in the case of Dr. Lorber's 71 babies who died, he includes among the "treatment" which was withheld "antibiotics and tube feeds". The fact that they died, therefore, may not have been entirely due to the spina bifida.
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 Mav 1978 and already has well over 1000 members.
