The Association of Lawyers for the Defence of the Unborn
The Association of Lawyers for the Defence of the Unborn
40 BEDFORD STREET, LONDON, WC2E 9EN
Editor: M.N.M. BELL, M.A. (Cantab.),
Winter 1983
Number 20
News and Comment
Activities of the Association
We are pleased to report that membership of the Association continues to grow, and we now have more than 1,100 members drawn from all parts of the United Kingdom. In addition we also now have members in the following overseas countries - Australia, Bahrain, Barbados, Canada, Cayman Islands, France, Germany, Gibraltar, Guyana, Holland, Hong Kong, Ireland, India, Italy, Lesotho, Malawi, Malaysia, Malta, New Zealand, Nigeria, Pakistan, Papua, St. Vincent, Singapore, Spain, Sudan, Switzerland, Uganda, U.S.A. and Zambia.
The Rome Conference
Our Vice-Chairman Mr. Robin Haig represented our Association at an International pro-life Conference organised by P.L.A.N. (Protect Life in All Nations) and held in Rome between 27th and 30th September 1983. More than 80 delegates from over 30 countries attended. His report on the Conference follows.
The principal speakers at the Conference were Drs. John and Lyn Billings who talked of their experiences travelling round the world and visiting Natural Family Planning centres in many countries. In particular. Dr. John Billings emphasised the way in which natural family planning complemented the cultural philosophy in most, if not all, developing countries, where contraception and abortion are regarded as unwelcome Western imports.
Dr. Billings' comments were emphasised, later in the Conference, when delegates from the developing countries gave their reports. From Africa, Asia, Central and South America the same story was told, namely that poor countries were forced to undertake population control programmes as a condition of receiving financial aid from developed countries and their financial institutions.
The delegates at the Conference also heard from Rev. Paul Marx that Europe is 'a dying continent'. Ireland is now the only European country with a reproductive birth-rate. In West Germany, with a population of 50 million people, 500,000 abortions are carried out each year; 57% of its married couples have no children. Similar patterns exist in most other European countries.
Dr. Carolyn Gerster, from America, reported that there are 1.5 million recorded abortions carried out each year in the U.S.A. Although it is said that 'only' 1% of abortions are carried out after 20 weeks of pregnancy, this represents 15,000, a huge number of late abortions.
Mr. Mario Rocci, an Italian delegate, had just returned from a population conference held in Geneva. The dubious but inevitable conclusion reached at Geneva was that the world's problems could only be solved by reducing natality. Because all countries found abortion a controversial subject they had decided to keep quiet about it, while continuing their population programmes.
Much of the P.L.A.N. Conference time was spent discussing the United Nations Population Conference to be held in Mexico City next August. At that conference population problems particularly of the developing countries will be discussed and solutions, intended to provide for the next ten years, proposed. The likelihood is that these solutions will amount to no more than further population programmes of contraception and abortion.
It is no coincidence that the U.N. Conference is being held in Mexico, as the Mexican delegate at Rome made clear. Mexico is the big sister to the Central American States and if Mexico can be made to legalise abortion the others will follow suit.
I was given the opportunity to address the Conference on the last day, and urged the delegates to encourage lawyers in their own countries to form pro-life lawyers' associations, as had been done in Great Britain and also in Ireland and Canada.
As always at such gatherings, a great deal of discussion and exchange of information took place outside the conference hall. The Conference was a useful meeting point for pro-life people from around the world and, it is hoped, will prove a starting point for greater international cooperation in the future.
Robin Haig
Vice-Chairman
Advocates for Human Life
We are pleased to learn that our sister organisation in Canada, Advocates for Human Life, which members of this Association helped to start on the West Coast, has now become a national organisation; and that one of our members Mr. E. A. Wehrle, who practices as a barrister and solicitor in Winnipeg, has been elected President.
A new branch of the organisation has been formed in Manitoba, and application forms for membership have been sent to 800 lawyers in Manitoba. We understand that the new national organisation intends to seek charitable status, and we shall be interested in the outcome of this. We wish them every success in this and all their future activities.
The Rule of Law
On the 20th August 1983 our Secretary wrote to the Commissioner of the Metropolitan Police concerning an article written in 'World Medicine' on the 28th May 1983 by a certain Dr. Ann Savage. In this article she stated that she 'refers for termination everyone who requests it'. This appeared to this Association to be a clear admission that she disregarded the provisions of the Abortion Act 1967 when referring women for terminations, and that therefore abortions following such referrals would be unlawful see section 58 of the Offences against the Person Act 1861. Our Secretary, however, was informed by the Assistant Commissioner (Crime) at the Metropolitan Police Office on the 27th September 1983 that 'the Director of Public Prosecutions on the information available has directed the Police to take no further action at this time'. A similar admission had been made by Dr. Savage in the British Medical Journal of the 15th September 1979, and on that occasion too this Association referred the matter to the Director of Public Prosecutions. Then too, so far as this Association is aware, no action was taken. It would appear, therefore, that the attitude of the Director of Public Prosecutions in this matter is part of a continuing policy of not following up evidence which would lead u the disclosure of what must undoubtedly be a large number of unlawful and criminal abortions.
No doubt if pressed the Director of Public Prosecutions would say that there were medical grounds for the abortions, despite the fact that Dr. Savage makes clear that she does not apply her mind to the question of whether there are medical grounds or not when referring someone for an abortion. This was the response of the Attorney General Sir Michael Havers Q.C. in the case of Professor Peter Huntingford, as reported in The Times of the 24th February 1982. The prosecuting authorities appear to ignore the fact that even if there are medical grounds for an abortion, it is a serious criminal offence unless two doctors have previously applied their minds to the question of whether there are medical grounds, and have formed the opinion in good faith that the balance of risk favours termination.
Anyone who wishes to see the Rule of Law upheld must take the gravest possible view of the attitude of the D.P.P. in this matter. There is no doubt that this attitude is bringing the law into disrepute, and giving the impression to the public at large, and to the medical profession in particular, that those whose duty it is to uphold the law are deliberately not fulfilling that duty.
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Termination of Pregnancy to relieve 'stress'
In our Autumn 1982 Newsletter (Number 15) we discussed the case of Re P (A minor) in which Mrs. Justice Butler-Sloss ruled that an abortion was legal. In coming to this conclusion the learned Judge quite properly considered the balance of risk to the mother's health, but in doing this she seems to have given undue weight to a factor which was not really relevant. In the course of her judgment she said of the mother:-
'She will be expected to live in one room with a child of 18 months and a new born baby, caring for both of them at night, suffering, as according to the doctor she is likely to suffer, from post-natal depression, and being deprived of the opportunity to further her education.'
In other words in considering the balance of risk the Judge was clearly taking into account the risk which might be caused to the mother's health from bringing up the child. But does the Abortion Act really permit taking into account such a look into the distant future? Quite apart from all the imponderables associated with looking into the future, one of which should always be the question of whether the baby would be adopted, it is submitted that this is not what the Act contemplated should be considered in determining the risk to maternal health.
What risk is relevant?
Section l(l)(a) of the Abortion Act 1967 says that an abortion will not be an offence if two doctors are of the opinion, formed in good faith, 'that the continuance of the pregnancy' would involve risk to health. In other words the question which two doctors (and thus a judge) should ask is whether the pregnancy itself would involve risk to the mother's health. Matters such as the number of children which the mother already has to cope with, and her environment, may only be considered by the two doctors as a means of helping them decide whether the continuation of the pregnancy is itself going to make her health worse. There is nothing in the Act to encourage the belief that the two doctors should form their respective opinions on the basis of the problems the mother may have in bringing up the child. No doubt Parliament thought, and rightly in our opinion, that it was not reasonable to expect the doctors to consider such remote social hypotheses. In any event, there is nothing in the Abortion Act to suggest that its purpose was to get rid of surplus or unwanted children, except those likely to be seriously handicapped. Apart from this 'Belsen' provision in section l(l)(b), in its wording at least the Abortion Act purports to protect the health of the mother during pregnancy.
The long title of the Act is 'An Act to amend and clarify the law relating to termination of pregnancy by registered medical practitioners'. It is not described as 'An Act to save mothers from the stress of having to bring up children'. Nor is there anything in the Act which authorises the doctor to kill the child 'unnecessarily '; for instance, in circumstances where it would be possible to hasten on a birth without risk to the mother's health, and without risk to the baby's life. The duty of the doctor after the passing of the Act remains what it always was, namely to preserve the life and health of both his patients.
Is abortion legal for healthy women?
It is reasonable to assume that when the Abortion Act was drafted it was done on the assumption that doctors would recommend treatment on the basis of diagnosis, because this is the normal practice of the medical profession. The Act must be read in the light of an assumption that doctors only recommend an operation to make a person better if they believe that that person is ill. If a person goes to a doctor with a healthy appendix, no doctor would instantly recommend an appendicectomy on the ground that the person might at some future date suffer from appendicitis.
If a pregnant woman who was mentally ill went to see a doctor, it is possible that the doctor might consider that the illness would be aggravated by the pregnancy and recommend a termination. But if a pregnant woman in normal mental health goes to see a doctor, one would assume that a doctor acting in accordance with the ethics of his profession would not recommend a termination of pregnancy on the ground that the pregnancy might at some future date cause mental illness.
Is stress a legal ground for abortion?
When doctors talk about terminating a pregnancy 'to prevent stress', these words seem increasingly to mean not that the pregnancy at that moment was causing such mental stress that it would have to be terminated to save the mother's health, but that having to care for a baby might at some future date cause stress to that particular mother. It is indeed true that having to care for a baby often causes stress. But that stress is not classified in medical text books as a form of mental illness for which the proper treatment is to kill the baby.
Thus although the Abortion Act contemplates termination where there is a risk to health either physical ornamental, it does not permit the pregnancy to be terminated just because both doctors have formed the opinion in good faith that after the baby is born the mother will ha\ problems. In fact pregnancy is so safe nowadays that cases of a woman being worried over whether her pregnancy will damage her health must be comparatively rare.
Stress and mental health
Indeed stress is not a form of mental illness at all. On the contrary it is well known that, within limits, stress is the mother of invention, and the father of progress. Many people produce their best work only under stress.
It seems, however, that doctors have now re-defined health to mean absence of stress, in order to attempt to justify abortion. They do not apparently consider that problems with a husband or boy-friend may be better met by counselling than by killing the child which is the cause of the dispute. They do not consider that worry over losing a job or accommodation may be better resolved by practical help and advice than by killing the child whose existence has increased the worry.
It is true that excess stress can cause illness, and our society has encouraged the attitude that it is better to get a tranquilliser from the doctor than to try to find a solution to what is causing the stress. In other words a common attitude nowadays is that the doctor may have a duty to treat the symptoms, but has no duty to tackle the cause. Nevertheless 'Pregnancy Advisory' agencies do not normally recommend tranquillisers (even those which are not contra-indicated by pregnancy) as the answer to stress caused by pregnancy. Nor do they help a woman to solve the problems which are the cause of her stress. They will not, for example, go to see the parents of a pregnant girl, whose rejection of her is causing her stress. In fact they do not treat either the symptoms, or the cause, of the stress. Their solution is to blame the innocent third party, and to kill him or her.
Can medicine solve social problems?
The truth is that the D.H.S.S. has two functions. The Health staff are there to alleviate medical problems, and the Social staff are there to alleviate social problems. But in the provision of very many N.H.S. abortions the Minister is using N.H.S. medical facilities to 'solve' problems which should be solved by social not medical means. The National Health Service was never intended to be used to kill babies as a means of solving social problems, and we submit that the current killings are a serious misuse of the N.H.S. facilities to say nothing of their being a grave abuse by doctors of their skills and ability.
Pregnancy is not in itself a physical defect, nor is it an illness. Health statistics show no deaths at all resulting from normal pregnancies. The National Health Service has a duty to improve health, and any deliberate killing of the healthy must be outside its terms of reference and its powers.
There may have been valid grounds in the case of Re P (A minor) for Mrs. Justice Butler-Sloss to hold that the termination of pregnancy was lawful, but certainly the reasons given by her which are quoted at the beginning of this article could not justify such a decision. It is hoped, therefore, that her dicta in that case will not be relied on in any future proceedings.
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Legalised Murder
Some members of this Association may recall reading in the 25th November 1981 issue of the Law Society's Gazette about a draft Bill to legalise murder.
This Bill provided that it would not be an offence for a doctor to cease to provide treatment to a patient under his care which was necessary to preserve life. The Bill should be read in full, but briefly murder was to be legal if three conditions were fulfilled:-
- the murder took place within 28 days of birth,
- the parents or guardian consented, and
- the patient was severely handicapped.
The Bill also permitted the withholding of food, if the doctor thought that the provision of food would increase the degree of pain and suffering of the baby.
The Bill was drafted by Diana and Malcolm Brahams, who attempted to justify it on the grounds that 'ethics and morality in society are not rigid and the law can be adjusted to take account of changes if those changes are felt to be for the good of society as a whole'.
It is a sad sign of our times that within a generation after Hitler's holocaust it is again being alleged openly that "the good of society as a whole" can justify depriving innocent individuals of their right to life. There has never been any doubt that this philosophy lies unexpressed behind much of the support that exists for abortion and neo-natal killing. But it is significant that it is now being plainly stated; and let nobody be in any doubt that this philosophy is a terrible two-edged sword which, unless condemned promptly whenever is is expressed, can be used to justify the killing of almost anybody.
Members of this Association will have found it incredible that any lawyer could believe that giving doctors a discretion to murder their patients might be for the good of society, and it is indeed astonishing that the Law Society's Gazette should print such a proposal. This draft Bill produced very little comment from the legal profession at the time, no doubt largely because lawyers believed that common sense would prevail and that nothing more would be heard of it. Far from this being the case the Bill was actually commended by the Director of Public Prosecutions, and was reprinted in the Journal of Medical Ethics (1983,9,18-20).
One would have assumed that any doctor concerned about medical ethics would have no hesitation in rejecting this proposal. And indeed the proposal was rejected by Dr. John Havard, the Secretary of the British Medical Association, writing in the same issue of the same journal. The grounds on which Dr. Havard rejected these proposals are of considerable interest.
He said that doctors should not be distracted from their primary task of reaching a difficult clinical decision by detailed restrictions. The only limitation he thought the profession should be prepared to accept was a procedural one, for example, that decisions in such cases should be taken only in paediatric units by consultant paediatricians. However, he felt that even such a procedural restriction on the discretion of doctors 'is hardly necessary as it happens anyway'.
He objected to legislation generally about these matters, because it 'must take into account the practical need to allow the paediatrician in charge of the case the widest possible discretion'. It was neither desirable nor practicable, he thought, to determine in advance the legal criteria which should be taken into account.
What conclusions is one to draw from all this? First of all, the opinion of Dr. Havard that such legislation would impose fetters on his profession which do not exist today makes clear enough that he believes that doctors have a discretion in such matters at the present time. This is not of course the case, but the apparent determination of the Department of Health and Social Security and the Director of Public Prosecutions to turn a blind eye to what is going on in our hospitals in practice gives doctors a discretion very much wider than could be given to them by any legislation.
From this the question arises as to whether in fact legislation may not be urgently needed to clarify the fact that the right to life is fully protected in this country from the time that a person is capable of being born alive; and the fact that any person having the care and control of another has a duty to take reasonable care to preserve the life of that other person. Whatever may be the answer to this question, about which opinions may differ, there can be no doubt at all that if the Government were sincere in what it so often proclaims about upholding the Rule of Law, and if the D.H.S.S. and the Attorney General were really determined to ensure that the law was upheld in our hospitals, all undesirable practices such as those of which Dr. Arthur was accused would very rapidly diminish.
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Abortion and Unemployment
Many people today tend to feel that the biggest problem in the United Kingdom is unemployment and not abortion. They fail to see the connection between the two. They fail to see that there is a connection between the absence of two million non-producing consumers, and a two million increase in the number of unemployed.
As children get older their non-productive consumption increases, giving employment to more and more people. Thanks to the Abortion Act 1967 the work-force necessary to educate, feed, clothe and house two million children aged between one and sixteen during 1983 will not be required, because thanks to abortion these children were never born.
Ever increasing unemployment is almost inevitable in a society with a falling birth rate. This is undoubtedly the situation in our society today. In 1972 8% of women in England and Wales gave birth to live babies, but by 1982 this percentage had fallen to 6%.
These statistics also give the lie to those who allege that abortion is necessary to reduce over-population. England is not in any event a country where over-population is a problem. Indeed it has a density of people per acre only about half that of some continental countries. However, even if it were considered desirable to reduce the population of the United Kingdom, the steady fall in the birthrate would achieve this, even if there were no abortions.
Effective anti-abortion legislation, which would have the effect of increasing the number of non-productive consumers born every year, would in fact be a most effective way to provide additional jobs and counter unemployment. And as this would not even bring the birth-rate up to replacement level, it could not be accused of producing over-population.
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A 'Final Solution' for Spina Bifida?
In our Spring 1983 Newsletter (Number 17) we drew attention to the fact that it is the policy of certain doctors to withhold treatment from babies born with severe malformations of the central nervous system. Quite apart from the grave moral objections to this policy, one would expect to see this policy developing to a point where treatment would be withheld from babies with less and less severe malformations. It is significant, therefore, that on the 1st March 1983 the office of Population Censuses and Surveys reported an astonishing drop in the numbers of notifications of babies born with malformations of the central nervous system. In the quarter ended June 1981 no fewer than 331 such births were notified, whereas in the quarter ended June 1982 this number had dropped to 241. For 1982 as a whole there was a decrease in such notifications of 16%.
There are three possible explanations for this. The first is that it has been caused by some great leap forward in medical science. It is indeed true that recent experiments have strongly tended to show that a vitamin supplement to women who anticipate that they may get pregnant could be very effective in reducing the number of children born with spina bifida. However, the experiments which have shown this were not concluded until 1983, and certainly there was no widespread programme of additional vitamin intake for women who were likely to become pregnant during the year in question. The remarkable reduction in the number of children born with spina bifida cannot, therefore, be accounted for by better medical treatment.
The second possibility is that the fall is accounted for by an increase in the number of children with spina bifida killed by abortion. 502 terminations on the grounds of handicap were notified for the quarter ended June 1981, and 597 for the quarter ended June 1982. Although every such abortion was gravely unjust, this is an increase of only 95, and this relates to termination for all types of handicap. There are now a very large number of conditions which can be detected in the womb which will lead to doctors recommending an abortion, and although spina bifida is one of the commoner ones this increase of 95 for all kinds of handicap cannot possibly account for a fall of 90 in the number of babies born with spina bifida in that quarter.
The third and most probable explanation is that more babies born with spina bifida are being 'allowed to die', and that they are not being notified as live births. As the Attorney-General himself made plain in a Written Answer he gave to the House of Commons on 9th March 1982, following the astonishing directions on the law in the summing-up to the jury by Mr. Justice Farquharson in the trial of Dr. Leonard Arthur, and as all textbooks on Criminal Law make plain, a failure to provide nourishment with the intention of causing death is murder if the patient dies as a direct consequence thereof. It may well be that one consequence of that case has been that when a baby with spina bifida has been 'allowed to die' within a few days after being born, doctors have concealed the murder by falsifying the 'live birth' notification.
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In Vitro Fertilisation
Dr. R. G. Edwards, the pioneer of I.V.F., dealt frankly with anxieties expressed about this procedure in the Horizon programme on BBC2 on 28th October 1983.
He explained that he considered extra fertilised eggs to be necessary, both for the purpose of research, and so as to check that the "sibling egg" was healthy. He agreed that the "killing" of the embryos in these circumstances was inevitable, but pointed out that this took place at a far earlier stage than in abortion, which he alleged had already been accepted by the community.
He saw two solutions for the problem of the ethical qualms caused by this killing. One was to find a suitable euphemism, as had been done for abortion. The other was to define “personhood" as arising some weeks after fertilisation.
What are we as lawyers to make of this? First of all, we must be vigilant to oppose any legislation to regulate this situation which makes use of euphemisms to gain Parliamentary approval, as was done with the Abortion Act. Lawyers have to deal with realities, and euphemisms are no more than a device to cause confusion. They can only lead to vague and sometimes unenforceable legislation.
Secondly we must see his concept of "personhood" as the dangerous red herring that it is. Concepts once used to attempt to make respectable legislation that permitted slavery are being dragged from the 18th century to the 20th, to legitimise killing our own children. The danger is that this concept that certain human beings are non-persons can be extended to almost anybody of a different colour, size, religion or mental ability from ourselves. We must expose it ruthlessly for the hypocrisy that it is, whenever it is put forward.
Finally we must insist that legislation recognises the truth conclusively proved by I.V.F., that the fertilised egg is a life in being. And to destroy a life in being has been a criminal offence in this country from time immemorial, and must continue to be so, for the sake of us all, whatever our size or status.
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 lull 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.
