Contents: RU-486, Warnock Report (ALDU Response), Case note (Emeh v Kensington & Chelsea, Thake v Maurice), Research on Human Beings
The Association of Lawyers for the Defence of the Unborn
40 BEDFORD STREET, LONDON, WC2E 9EN
Patrons of the Association: The Rt. Hon. Lord WHEATLEY; the Rt. Hon. Lord RUSSELL OF KILLOWEN
Chairman and Editor M. N. M. BELL, M.A. (Cantab.),Hon. Secretary C. R. FRADD.M.A., LL.B. (Cantab.),
Hon. Treasurer T. G. A. BOWLES, M.A. (Cantab.),
Summer 1985
Number 26
News and Comment
Annual General Meeting
The 1985 Annual General Meeting of the Association will be held on Saturday 13th July, 1985 at the Grand Hotel, Aytoun Street, Manchester. The meeting will begin at 11.30 a.m., and will finish before lunch. Bar snacks or restaurant meals will be available in the hotel. The Annual Conference of the Association will follow immediately after lunch at 2.00 p.m. The Conference will be introduced by Mr. David Poole Q.C., and will be addressed by Mr. John Kelly, Consultant Gynaecologist at the Birmingham Maternity Hospital, and Sir Hugh Rossi M.P.. Sir Hugh is a solicitor, and a former Minister at the D.H.S.S., who has made notable contributions to the recent debates in Parliament on the Warnock Report and on the Unborn Children (Protection) Bill.
Members of the Association who intend to come to the A.G.M. or the Conference are asked to notify the conference organiser, Mr. Martin Poole of 8 Westfield Road, Chorlton-cum-Hardy, Manchester 21. There is a fee for attendance at the Conference, which is £3.00 for students, and £5.00 for other members (and their guests), which should be sent with the attendance notification.
The following nominations have been received for the officers of the Association for the three years from the 13th July, 1985. Mr. David Poole Q.C., Chairman; Mr. Robin Haig and Mrs. Anne Curran, Vice-chairmen; Mr. Michael Bell, Secretary; Mr. Tom Bowles, Treasurer.
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Pills and Abortion
Following the article on the post-coital pill in our Winter 1984 Newsletter (No. 24) one of our readers has written to point out that many eminent authorities consider that the ordinary contraceptive pill can also have an abortifacient action, and drew our attention to the following references:
- Dr. Robert Winston, leader of the Hammersmith Hospital in vitro fertilisation team, defending the destruction of "spare embryos" in IVF technique on the BBC2 "Sixty Minutes" programme on July 16th 1984, said that "Those who are using the ordinary combined pill should also know that they too are also quite regularly destroying embryos.”
- Dr. John Guillebaud, author of the authoritative book "The Pill” sates that "There are changes in the lining of the uterus which seem to make it less able to support and nourish a fertilised egg.”
- In the "Nursing Mirror" supplement, February 10th 1982, Zandria Pauncefort of F.P.A. wrote that "The ordinary combined pill" alters the "endometrial histology, making the lining of the womb less receptive if by chance an ovum was released and fertilised.”
- In the 1974 Criminal Law Review p.461, Professor Victor Tunkel of Queen Mary College, London, went so far as to opine that the combined pill and the IUD were, because they are abortifacient, technically illegal in this country.
- Graves and Pickover, writing in the "Police Review" on February 20th 1981, support Professor Tunkel's views, though they do in fact talk of "noxious substances" and do not expressly refer to the pill. And
- Dr. Anna Flynn, the World Health Organization representative in this country, in reply to a question as to how the combined pill operates, replied on 18th April 1984 that "Should there be a breakthrough ovulation its progesterone element will prevent implantation by creating a hostile endometrium (lining of the womb)."
One must not exaggerate what is being said here. There is no suggestion that ordinarily, or even usually, the Pill now available in this country works by causing an abortion. Nevertheless many people may feel that if a particular action has even a remote possibility of killing a fellow human being that action should be avoided.
It is worth noting in passing that, in the developed countries, the contraceptive pill is increasingly being rejected as a method of birth control as its undesirable side-effects become apparent. "Time" magazine (17/12/84) reported that in America only 29% of women using birth control now rely on the pill. Among married women the number of pill users has halved over the past ten years. And yet, despite this, organisations financed by Western governments, such as the International Planned Parenthood Federation, have kept up an unremitting effort to force this potentially abortifacient drug down the throats of the women of the Third World; and with scarcely a murmur of protest from any of the "feminist" organisations.
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A New Pill - the RU-486
On the 20th December 1984 it was reported in the "Daily Express" that "the first almost foolproof abortion pill is upon us". This pill had been "successfully" tested on pregnant women in France, and was known as RU-486. It appears that this pill works by blocking the circulation of the female hormone progesterone, without which the lining of the womb is denied the necessary blood and nutrients to sustain the pregnancy, and a miscarriage follows.
On 31st January 1985 it was reported in the "General Practitioner" that a British trial of this drug was to be carried out by Professor David Baird of Edinburgh University. The trial would involve 40 women, 20 of whom would take RU-486 alone, and the other 20 would take it in conjunction with a pessary. This was apparently because it is believed that the pill taken in conjunction with a pessary is more likely to induce a miscarriage than the pill taken alone.
This Association immediately wrote the same day to the Chief Superintendent of the Lothian and Borders Police, drawing his attention to these reports. We reminded the Chief Superintendent that abortions were unlawful unless doctors were able to avail themselves of the protection provided by the Abortion Act 1967. The Assistant Chief Constable informed us that the matter had been discussed with the Assistant Procurator Fiscal in Edinburgh, who was going to communicate with Professor Baird to discuss the matter in more detail.
This Association was accordingly very pleased to note the Written Answer recently given by the Minister for Health to Mr. Simon Coombs M.P. (see Hansard Friday 15th February 1985, column 318). This made it plain that the trials and use of the pill RU-486 must comply with the relevant abortion law.
It-is reported that the pill can work on a woman up to 30 weeks pregnant, and if the trials are deemed to be "successful" it seems likely that the pill will become widely available in this country. It would then be a very simple matter, but of course a serious criminal offence, for a doctor who was consulted by a pregnant woman to give her a prescription for this pill, which she could take at home. The ensuing abortion would be completely illegal under the existing law. Should this situation arise, it will clearly be the duty of the authorities to take immediate steps to prevent further such violations of the law.
Even more seriously, this pill would appear to make it much easier to obtain an abortion without consulting a doctor at all. The pills could be passed from one pregnant woman to another, and could be handed around like sweets by one young girl to another. The outcome would inevitably be far more abortions carried out in the home, without any medical supervision, and, of course, totally illegally. The end result must be an enormous rise in the number of unborn children killed, and in the number of mothers injured.
There would appear to be only one effective way to stop this situation arising, which is to make it illegal to manufacture or import this pill, or to supply it. At the same time, if the Government does not want to see the horrific possibilities which we have outlined above become reality, it should cease immediately its practice of giving enormous sums of money to pro-abortion publications and 'organisations which encourage women to have abortions rather than to obtain help to cope with their pregnancy. It should also ensure that women and girls are made fully aware of the threat to their health and fertility which every abortion represents, and should support those organisations which provide responsible pro-life counselling.
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The Warnock Report - The Response by this Association
In December 1984 this Association sent to the D.H.S.S. its "Response to the Warnock Report", following the Department's request to us to give them our views on it. Members who would like to receive a copy of the Response should send a s.a.e. (size at least 16cm x 23cm) to our secretary.
The document is too long to be reproduced in full in a Newsletter, but it begins by dealing with the fundamental question, which the Warnock Committee completely evaded, of when human life begins. The massive medical evidence of new life which takes place at fertilisation is the foundation on which this Association stands. That is why we say what we do at the end of every Newsletter, and on every letterhead. Our Response points out that even if there were a doubt about this, which we deny, then the embryo should be given the benefit of the doubt.
Our Response rejects the assertion of the Report that the human embryo has no legal status, and points out that since the 13th century the law has regarded the killing of the unborn child as homicide.
The Response rejects the theory that the embryo lacks "personhood". It points out that the embryo has personal life, not merely biological life, because each embryo has a unique genetic make-up, personal to that human being.
We of course acknowledge that infertility can cause great distress, but we point out that the right of married couples to have a child must be qualified by the words "if physically capable of doing so". Methods of relieving childless-ness which involve squandering other human lives are not legitimate. The Response considers that the establishment of surrogacy agencies, whether profit-making or not, should be a criminal offence.
We point out that the recommendation of the Warnock Report that experiments should be permitted up to 14 days is an obvious and unacceptable denial of protection to the embryos involved; and we deplore the implication that at the end of 14 days the embryo must be deliberately killed. Nor does our Response accept that parents should be able to give a valid consent to research on their own embryo. Apart from there being no ethical grounds which permit this, what would be the legal position if one parent consented but the other did not? We reject as unsound the argument that experimentation is a way to find cures for hereditary disease and handicap, and we certainly deny that experimentation is the only way to find such cures.
The Response considers that the freezing of human embryos solves nothing. This freezing procedure is still at a highly experimental stage, and it is understood that the vast majority of embryos who are frozen will die or be damaged as a result. Those who survive the freezing and thawing process have little prospect of ever being implanted in a maternal womb, although some instances are known.
The Response points out that a fundamental objection to I.V.F. procedure is that it implies rights of ownership over human beings. Such ownership has been rejected by our legal system ever since the slave trade was made unlawful. Once the concept of ownership is accepted, almost any prohibition relating to the embryo can be evaded by selling embryos to a clinic outside the jurisdiction.
The Response notes that I.V.F. procedure also creates a very difficult ethical problem, namely, the question of what is to happen to embryos which are found to be imperfect. At common law those scrutinising the embryo are probably, if not certainly, under a duty to inform the mother if the embryo is flawed, as failure to do so will sound in damages (cf. Thake v. Maurice [1984] 2AER 513, Pain J.). But it is not easy to see how a mother, having being informed of defects in the embryo, could be placed under a legal duty to submit herself to implantation. Yet to destroy or "allow to die" a fellow human, on the ground that that human being is not perfect, is unethical.
The Response concludes by suggesting that it should be made unlawful to test embryos for quality or sex; to experiment on them; to fertilise more eggs than are needed for immediate implantation; to freeze or store embryos except to preserve life; to use embryos for growing human tissue; to create hybrids; to create embryos to be implanted in the womb of a non-human, and similar experimental techniques; or to traffic in human embryos.
We affirm that it should be unlawful to take any steps likely to endanger the life or health of an embryo, or to do anything with a fertilised ovum except to implant it in the womb of the woman from whom it came. The life of the embryo should be fully protected by law from the moment of fertilisation. Research to alleviate infertility and handicap should continue, but not at the expense of helpless human beings.
We can only hope that the Minister for Health, who is himself a Queen's Counsel, will recognize that the contents of our Response are consistent with the highest principles of our profession; and that the contents of the Warnock Report, by way of contrast, are full of irrationalities and inconsistencies, which even untrained minds can easily detect and expose; and that its recommendations cannot be harmonised with several very clear statements in the Government's own Manifesto.
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Case Note
by Mr Christopher Fradd M. A., SolicitorEmeh v. Kensington and Chelsea and Westminster Area Health Authority and Others [1985] 2 W.L.R. 233
Thake and Another v. Maurice [1985] 2 W.L.R. 215
The judgment of Park J. at first instance in the Emeh case was noticed in the Autumn 1983 issue (Number 19) of "News and Comment" and severely criticised. Happily it has now been reversed by a unanimous Court of Appeal. The grounds of the Court of Appeal's decision, however, are only partially satisfactory.
It will be recalled that Mrs Emeh had a sterilization operation, which failed, and that soon afterwards she again conceived a child, although she only became aware of this in about the 20th week of her pregnancy. Her claim against the defendants failed in respect of all damage arising after she became aware of her pregnancy on the grounds that "her act in failing to obtain an abortion was, in the circumstances of this case, so unreasonable as to eclipse the defendants' wrongdoing" (supra at p. 238).
In the Court of Appeal Waller L. J. held that this finding of the judge was incorrect, but only, it would seem, on the basis of the particular facts. Purchas L. J. had a similar approach. His words, at p. 246,
"This mother was entitled to take the decision which she did in all the circumstances of the case",
carry the implication that in other circumstances it might have been wrong for her to decide to have her baby. This is, in principle, no better than Park J.'s view with its terrible corollary that it might in certain circumstances e.g. perhaps, if the pregnancy were discovered earlier, be a woman's duty to have an abortion in order to mitigate her damage.
Slade L. J.'s judgment was much better:
"Save in the most exceptional circumstances", he said at p. 243, "I cannot think it right that the court should ever declare it unreasonable for a woman to decline to have an abortion, in a case where there is no evidence that there were any medical or psychiatric grounds for terminating the particular pregnancy”.
Even this, however, falls short of declaring the undoubted truth that without such grounds the abortion would be illegal.
So much of the tortuous argument in this case as to whether Mrs Emeh's refusal to have an abortion was or was not unreasonable could have been avoided if the Court had kept clearly in mind two simple points. First, despite the limited exoneration from guilt granted by the Abortion Act 1967, abortion remains prima facie a serious criminal offence under s.58 of the Offences Against the Person Act, 1861. Secondly, by the time Mrs Emeh had to make her decision her child was probably capable of being born alive and thus protected by the Infant Life (Preservation) Act, 1929. In not having an abortion Mrs Emeh was complying with the law and thus cannot have been acting unreasonably.
The result of the Court of Appeal's decision was that Mrs Emeh was awarded substantial damages for the cost of bringing up her child, Elizabeth. The worry here is that if such cases become common the heavy burden upon insurance companies or the taxpayer may prompt a change in the law. We should be prepared to oppose strongly any suggested change which would impose upon a woman in any circumstances a duty to have an abortion.
This problem too need not have arisen if only the Court had been prepared to hold that the birth of a child is not in itself an injury, but a blessing — a cause for rejoicing, not for awarding damages. This was what counsel for the first defendants had argued. This was also the approach of Jupp J. in his excellent judgment in Udale v. Bloomsbury Area Health Authority ([1983] 1 W.L.R. 1098) (noticed in the Autumn 1983 issue of "News and Comment").
As has been seen, it was not followed by the Court of Appeal in Emeh. Neither, unfortunately, was it followed by Peter Pain J. in Thake v. Maurice. In this case Mr Thake had had a vasectomy operation, but this had (completely naturally and without negligence on the part of the surgeon who did it) reversed itself with the result that Mrs Thake again conceived a child, although, as in the Emeh case, she only became aware of it after about the 20th week of her pregnancy. Mr and Mrs Thake claimed damages for the distress of discovering the pregnancy and the costs of the birth and of maintaining the child, Samantha, until her 17th birthday. Mrs Thake also claimed damages for the pain and discomfort of labour and for loss of earnings until Samantha started school and she could go out to work again. As the doctor had not been negligent, except perhaps in failing to warn Mr Thake that the operation might naturally reverse itself, the claim lay in contract rather than tort. The intricate argument as to the exact terms of the contract does not concern us here, but the judge held that there was a breach of contract.
It remained to settle the heads under which damages could be claimed. Peter Pain J. following Watkins J. in Sciuriaga v. Powell ([1979] 123 S.J. 406) and disagreeing with Jupp J. in Udale, held that it was not contrary to public policy to award damages for the birth of a normal healthy child. Among the reasons for his decision were the facts that family planning is generally practised, that abortion has been legalised over a wide field and that vasectomy is one of the methods of family planning which is not only legal but is available under the National Health Service; from which he drew the conclusion that the birth of a healthy baby is not always a blessing (supra at p. 230). He went on to say, at p. 232, that he thought that Jupp J.'s view that to allow damages under this head would encourage abortions had little force.
Another aspect of the case was that, as Mrs Thake had not appreciated that the vasectomy might reverse itself, she did not quickly realise that she was pregnant (because she considered that to be impossible). By the time that she did know that she was pregnant it was too late for her to have an abortion. Peter Pain J. regarded the loss of the opportunity to have an abortion as a valid head of damage with scant regard to whether such an abortion would have been legal, and purely on the basis that she "could probably have got an abortion" and that "she could and would have done, had she known she was pregnant" (supra, at p. 227).
It is monstrous that the life or birth of a child, a child's very existence, should be treated as "the injury". It is a scandal that large damages are awarded for the birth of a child so that doctors have a strong financial incentive to recommend an abortion. It is appalling that the Courts should proceed upon the unargued assumption that in the early weeks of pregnancy an abortion is legal and ought to be available.
Unfortunately in the Emeh case the Court of Appeal unanimously expressed its preference for the reasoning of Peter Pain J. in Thake v. Maurice over that of Jupp J. in Udale. Yet it is surely Mr Justice Jupp who has shown us the sound approach in this difficult field. Let us hope that before long he finds support in the House of Lords.
The importance of these cases should not be overlooked. From saying "birth is an actionable injury" to saying "you should have prevented it" is a very short step. Being judged at fault for not having an abortion is not far removed from being obliged to have an abortion. Abortion as mitigation of damage (which implies a duty to abort) is something we have already seen in the Emeh case at first instance. Before any further steps down this slippery slope are taken let it be stated once more, for it cannot be reiterated too often or too forcefully, that there is no such thing in English law as a duty to abort. Section 5(2) of the Abortion Act 1967 makes that quite clear. Abortion remains prima facie illegal. Section 58 of the Offences against the Person Act, 1861 is mandatory, while section 1 of the Abortion Act 1967 is purely permissive.
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Research on Human Beings
It was reported in "The Times" of 23rd January 1985 that the Medical Research Council is to set up a voluntary licensing authority to control research on human embryos. According to the report the body will limit research to the first 14 days of life. The British Medical Association has also supported the Warnock Committee's recommendation that research should be permitted on human embryos up to 14 days after fertilisation. The medical establishment in this country has, therefore, firmly come out in favour of human experimentation. It is not always realised that this represents a complete change in attitudes which have prevailed within the profession up to this time.
The Handbook of Medical Ethics, published by the British Medical Association, at page 66, quotes the International Code of Medical Ethics, which declares that:
"Any act or advice which could weaken physical or mental resistance of a human being may be used only in his interest".
The same publication at page 69 states:
"In research on man, the interest of science and society should never take precedence over considerations related to the well-being of the subject."
The general ethical position of the medical profession throughout the world was stated in the Declaration of Helsinki. This was a declaration adopted by the 18th World Medical Assembly when it met at Helsinki in Finland in 1964. It was revised by the 29th World Medical Assembly when it met at Tokyo in Japan in 1975. This Declaration began by acknowledging that medical research ultimately must rest in part on experimentation involving human subjects. It then went on to set out certain extracts on this general principle, of which the following extracts are the most important:-
(5). "Concern for the interests of the subject must always prevail over the interests of science and society.
(6). The right of the research subject to safeguard his or her integrity must always be respected.
(7). Doctors should abstain from engaging in research projects involving human subjects unless they are satisfied that the hazards involved are believed to be predictable.
(9). In any research on human beings each potential subject must be adequately informed of the aims, methods, anticipated benefits and potential hazards of the study and the discomfort it may entail. The doctor should then obtain the subject's freely given consent, preferably in writing. (11). In case of legal incompetence, informed consent should be obtained from the legal guardian in accordance with national legislation."
Following the statement of these general principles comes a special section dealing with "Non-Therapeutic Biomedical Research Involving Human Subjects." This restricts the general principles enunciated above even further. It states as follows:-
(1) "In the purely scientific application of medical research carried out on a human being, it is the duty of the doctor to remain the protector of the life and health of that person on whom biomedical research is being carried out.
(2) The subjects should be volunteers — either healthy persons or patients for whom the experimental design is not related to the patient's illness.
(3) The investigator or the investigating team should discontinue the research if in his, her or their judgment it may, if continued, be harmful to the individual.
(4) In research on man, the interest of science and society should never take precedence over considerations related to the well-being of the subject."
That there is still a strong feeling in the country, and even within the medical profession, against non-therapeutic experimentation on human beings which could result in their destruction, is abundantly evident. The petition which was sent out with our Newsletter No. 24, and which was promoted by all the pro-life organisations, obtained two million signatures. The Bill introduced by Mr Enoch Powell to restrict experimentation on human beings obtained a large majority on its Second Reading on the 15th February 1985.
An opinion from the Law Society's Standing Committee
The question of the protection of the human rights of the embryo is not a matter which can be left to self-regulating devices introduced by the Medical Research Council, or, indeed, to the medical profession as a whole. It is a matter which must be regulated by law, and is therefore of particular importance to lawyers. As Sir Hugh Rossi said in the debate on Mr Powell's Bill, (Hansard, 15th February 1985, column 678):
"At present there exists under our law no protection for the human embryo. Scientific developments have intruded at a pace into areas where the law did not see the need for its application. Once again, I congratulate the right honourable gentleman on seizing the opportunity, and I wish his Bill well."
In January 1985 the Standing Committee on Family Law of the Law Society drew up a Memorandum on the Warnock Report. In their Memorandum they commented as follows:-
"In their evidence to the Warnock Committee, the Family Law Committee suggested that a 'best interests of the child' test should be used in this whole field ..... However, there must be doubt as to whether a 'best interests' test would permit the use of techniques enabling the deliberate creation of children to satisfy 'adoptive relationships', for example for egg and embryo donation, or for embryonic experimentation, in vitro growth of embryos to produce by products, cloning and other genetic manipulation."
The Committee went on to make a number of useful comments on the legal issues arising from artificial insemination, surrogacy, and the storing of human embryos.
Whilst this Association has brought out its own Response to the Warnock Report (see above) which differs in some respects from the views of the Law Society's Standing Committee, we nevertheless wholeheartedly endorse their basic principle that a "best interests of the child" test should be used in this whole field. This is indeed the basis of the Helsinki Declaration, of Mr. Enoch Powell's Bill, and of the thinking of all those who, like the members of this Association, are concerned that the law of the land should protect the small, the weak and the defenceless and should guard with particular care those who are too young to look after themselves.
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 1400 members.
