The Association of Lawyers for the Defence of the Unborn
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| ALDU rejects proposal for Licensing Authority |
The Association of Lawyers for the Defence of the Unborn
40 BED FORD STREET,LONDON,WC2E9EN
Chairman: D. A. POOLE, Q.C.. M.A. (Oxon.),
Hon. Secretary and Editor: M. N. M. BELL, M.A. (Cantab.).
Hon. Treasurer: T. G. A. BOWLES, M.A. (Cantab.).
Patrons of the Association: The Rt. Hon. Lord WHEATLEY; the Rt. Hon. Lord RUSSELL OF KILLOWEN
Autumn 1985
Number 27
News and Comment
Mrs. Gabrielle Lumsden
A personal appreciation by Michael Bell
Gabrielle joined the Association in September 1978, and was a Vice-Chairman of the Association from 1979 until her sudden and tragic death on the 19th June 1985.
To me she was one of those people in the pro-life movement of whom I have always felt that if people like her are working for this cause, then it needs no other recommendation. She was "sans peur et sans reproche".
More specifically her work for the Association was invaluable in many ways. As a member of its Committee, she never hesitated to express her views on any proposed action, no matter how different these might initially have been from those of the majority. It was a tribute both to her inspired and original thinking, and to the clarity with which she was able to express her ideas, that she so often convinced the Committee that the course she proposed was the right one to pursue.
On many an occasion she helped the male members of the committee to understand better how women would feel about a proposed idea, a task which she accomplished with all her usual tact and sincerity. She also often advised the Committee on how best to approach the authorities and those in position of influence. In many other ways she threw a fresh light on matters which came up for discussion, and she often contributed her drafting skills and her clarity of thought to documents and letters produced on behalf of the Association. What was perhaps her supreme achievement for A.L.D.U. was carried out only a few months before she died, when almost single-handed she compiled a brilliant Response to the Report of the Warnock Committee.
Every member of the Committee was warmed and inspired by her friendship, her dedication and her optimism. She will be sadly missed and long remembered.
Experiments on Embryos - Are They Really Necessary?
Speaking in the House of Commons of the 14th June 1985 on the question of the alleged necessity for experimentation on embryos, the Rt. Hon. J. Enoch Powell drew the attention of the House to some very disquieting facts. He began by quoting from an article in "Nature" of the 7th March 1985, in which the Editor said:
"The missing ingredient in this debate was the clear statement of what exactly are the benefits of investigations with human embryos. That is not surprising, for as yet there have been no such investigations".
Mr. Powell then told the House that he had felt it was his duty to ask some pertinent questions as to what were the purposes and the benefits which made experiments on human embryos "indispensable". He had been referred to an article by Dr. Anne McLaren in the British Journal of Obstetrics and Gynaecology in April 1985. In this article Dr. McLaren had argued that one useful (sic) purpose of experiments on embryos would be the "elimination" of embryos containing genetic defects. The method ("biopsy") proposed for doing this was to remove one or two cells from such embryos, and test those cells for defects. Only those embryos whose cells revealed no defects would then be used for implantation. But at present it is by no means certain that embryos from which cells have been removed would survive when subsequently implanted.
Dr. McLaren had argued that by means of experiments in the laboratory it would be possible to determine whether embryos could survive such tests.
Mr. Powell had consulted Dr. McLean of the Department of Anatomy at the University of Manchester, who had assured him that in fact the only way in which the viability of the embryo from whom the biopsy had been taken could be assessed was by inserting the embryo into the womb with subsequent monitoring of the pregnancy. Thus tests such as Dr McLaren proposes would prove nothing, and so are unnecessary.
Mr. Powell then told the House that it was necessary to answer the question why, even though no experiments on embryos incompatible with his proposed legislation were in progress, there was such strong pressure for such experiments to be authorised. Part of the answer was supplied by Dr. McLaren, who had specified "Research on new methods of contraception", - an answer borne out in a very important letter from Sir John Dewhurst and other eminent obstetricians and gynaecologists which was published in the "Daily Telegraph" on the 6th June 1985. Sir John and his eminent colleagues doubted whether there was much to be learned from research on laboratory-produced human embryos which could not be acquired by less objectionable means, and they pointed out that the only "treatment" of genetic disorders offered by those who wished to experiment was "destroying the human beings who are suffering from the diseases concerned". Mr. Powell quoted some words from this letter, which are of great significance for this Association, as follows:
"Thirdly we must understand that enthusiasm for I.V.F. is only now incidentally concerned with relief of infertility. What is more important (to some) is that there should be a plentiful supply of disposable human embryos in the laboratories for testing drugs (especially in developing abortifacients), for experimentation in use of embryonic tissue for regenerating adult organs, and for many frightening kinds of genetic manipulation".
A.L.D.U. Conference 1985
On the 13th July 1985 the Annual Conference of this Association was held at the Grand Hotel, Manchester. Our first speaker was Mr. John Kelly F.R.C.S., F.R.C.O.G., Consultant Obstetrician and Gynaecologist at Birmingham Maternity and Women's Hospital, who said:
"Even if you or I accepted experimentation on human embryos, what is the value of such experimentation? Mass experimentation on human beings was carried out in Nazi Germany with no benefit to science. It is not necessary to experiment on human embryos to cure genetic diseases. The study of gametes before fertilisation is more profitable for investigation, as well as being ethical.
Some misleading statements have been made, e.g., that Down's Syndrome, Cystic Fibrosis, and Duchenne Muscular Dystrophy would benefit from experiments on human embryos. Those abnormalities are determined before fertilisation, and so experimenting in these instances would be of no benefit,
There have been numerous advances in the prevention of handicap without the need for experimentation on human embryos. Peri-conceptual vitamin supplementation (by Professor Smithells and others) has reduced the incidence of neural tube defects seven-fold."
Mr. John Kelly concluded as follows:
"We must stand up for the rights of the unborn. Experimentation up to 14 days is unethical, and would undoubtedly lead eventually to unlimited experimentation. Good morals in the past have always meant good medicine, and we should not anticipate any change."
Following Mr. Kelly the Rt. Hon. J. Enoch Powell addressed the Conference. After reiterating the points which he had previously made in the House of Commons on the 14th June 1985, which are quoted above, Mr. Powell said that the support in the country and in the Commons for his Bill had established the repugnance of the public towards research on human embryos. It had also established that the leading proponents of I.V.F. were willing to accept considerably more restrictions on their power to carry out experiments than the Warnock Committee had considered necessary. Professor R. Edwards of Bourn Hall in Cambridgeshire had told Mr. Powell that they did not wish to create embryos for experiment. Nor did they wish to experiment on embryos which were not suitable for implantation in the womb.
Mr Powell told the packed Conference that the Government now knew it could not enact legislation along the lines of the Warnock Report against the wishes of the 260 M.P.s who had voted for his Bill, unless it specified what experiments were proposed, and explained exactly why they were indispensable. This it had so far been unable to do.
He suggested that there were three steps which could be taken by Associations such as our own, who were opposed to experiments on embryos. First of all, if the Queen's Speech contained no indication that the Government was proposing to enact legislation to protect embryos, then our Association should press for such legislation to be enacted without delay. Secondly, we should immediately begin to press the Government to explain what precise benefits were anticipated as a result of embryo experimentation; and, in particular, we should demand that the Government should publish all the evidence taken by the Warnock Committee.
Thirdly, we should make clear to the public that much of the pressure behind the demand for experimentation was not with the aim of permitting women to have children, but with the aim of preventing women from having children. He understood that the drug industry was interested in using embryos to test drugs, — a view which was confirmed by a speaker from the floor who was a member of the I.V.F. Ethical Committee in Manchester.
Mr. David Poole Q.C., chairman, concluded the Conference by affirming that even if doctors were able to identify lines of embryo research beneficial to mankind, the Association would oppose research on any human embryo unless its purpose was to benefit that embryo. Human embryos should never be used as instruments for the benefit of others; and parental consent, in the absence of the above purpose, was an irrelevance.
The Licensing of In Vitro Fertilisation
One of the principal proposals of the Warnock Committee was that a "Licensing Authority" should be set up to control and regulate both the creation of human embryos by in vitro fertilisation and also what should be done with those embryos. It is possible that some people who wish to protect the embryo approve of this proposal. What is certain, however, is that those who are indifferent to the fate of the human embryo are generally in favour of the setting up of such a Licensing Authority. This Association firmly believes that the life of the human embryo urgently needs to be protected by law, and that to set up such a Licensing Authority would not help.
We believe that such a Licensing Authority is intended to serve as a smoke-screen and that its establishment is intended to persuade the public that everything will thereafter be under proper control. Behind this screen, in their licensed clinics, the discretion of I.V.F. practitioners would in practice be unfettered, whatever restraints Parliament by its laws might try to impose. We have already seen this happen in the licensing of abortion clinics under the Abortion Act 1967; and at Bournemouth on 20th October 1984 Mr Justice Woolf told a large audience of lawyers that he was "deeply concerned" whether the legislation proposed by the Warnock Committee would be enforceable. Furthermore, a Licensing Authority would give the seal of Government approval for the practice of I.V.F., and its very existence would imply that I.V.F—procedures are morally and generally acceptable in our society.
There can be little doubt that the D.H.S.S. and medical organisations would see to it that such a Licensing Authority was composed of those who favour I.V.F. with few or no restrictions. The Warnock Committee was careful to give no indication of the principles on which its proposed Licensing Authority should grant its licences, and it can be assumed that these licences would be issued on the basis of everything being done by qualified people, and in accordance with the latest and best medical procedures, but with a total disregard for ethics and the rights of the human embryos whose fate they would control.
The assumption by some non-lawyers that such a Licensing Authority is needed to enforce the law if legislation were to be enacted to control experiments on, or the sale or destruction of, embryos, is without foundation. We have already mentioned Mr Justice Woolf's deep concern about the unenforceability of the Warnock proposals, and in practice a Licensing Authority would simply protect the licensed clinics and would take the real responsibility for law enforcement out of the hands of unbiased and experienced law enforcement bodies.
This Association, therefore, takes the view that any steps to set up such a Licensing Authority must be firmly opposed, and we urge all organisations which are concerned about the protection of the embryo to join with us in resisting this key recommendation of the Warnock Report.
Medhurst .v. Medhurst - the rights of a husband
The September 1984 Newsletter of our sister organisation in Canada "Canadian Advocates for Human Life" contains an article on a recent case which must be of considerable interest to practitioners in this country. The article is written by Colleen Kovacs, a barrister and solicitor practising in Winnipeg, and any member of this Association who would like a copy of it should send a s.a.e. to the Editor of A.L.D.U.'s Newsletter.
The case is cited as Medhurst .v. Medhurst [1984] 46 O.R. (2d) 263 High Ct.. Mrs. Medhurst was 11 weeks pregnant when she decided to have an abortion. On the basis of an affidavit by her husband Mr. Medhurst, the Ontario Supreme Court granted an interim ex pane injunction to prevent her from taking the life of the infant. Mrs. Med-hurst moved to rescind the order.
Mr. Justice Reid followed the Paton Case, (Paton .v. Trustees ofB.P.A.S. [1978] 2 All E.R. 978). He held that the consent of the husband is not required for a legal abortion. Mr. Medhurst had however brought the application in the capacity of next friend of an infant en ventre sa mere. In reply to that the Court held that a next friend can act only for a person, and that an unborn child is "not a person" (sic).
Finally, the Court considered the question of whether the husband had locus standi to apply to a court to enforce compliance with section 251 of the Canadian Criminal Code. This section makes abortion illegal unless the abortion committee of an approved hospital has certified that continuation of the pregnancy would be likely to endanger the mother's life or health. On this point Mr. Justice Reid held: "I cannot think of anyone more entitled to the court's protection of that interest than a husband". He accordingly held that Mr. Medhurst had the status to ensure that if an abortion were to be performed it should be done in accordance with the law.
Despite the fact that the doctors had refused to explain to Mr. Medhurst how the pregnancy would endanger his wife's life or health, the Court held that there was no evidence before it that section 251 had not or would not be complied with. The Court accordingly rescinded the interim ex parte injunction.
Mr. Medhurst then launched a further motion for judicial review in the nature of certiorari for an order quashing the decision of the abortion committee on the grounds that there was insufficient evidence to support their decision that the pregnancy was likely to endanger Mrs. Medhurst's life or health. Mr. Justice Krever said that he was prepared to assume that the father had status to bring the application. The Court held that the onus of proof was on the husband to prove that the committee had not acted properly and that he had failed to discharge this onus. The abortion was performed the next day.
The article in the Canadian Newsletter comments that this case represents an important first step in opening the doors of the court to the husband. It points out, however, that abortion committees, like doctors in this country, rarely if ever issue written reasons for their opinion, and that Mr. Justice Krever held that the Court could not interfere on the ground that there was insufficient evidence to support the committee's decision, but only if it could be shown that there was no evidence at all. This gives the husband a formidable obstacle to surmount.
The Canadian Court, however, appears not to have considered the case of R. v. Smith [1974] 1A11 E.R. 376, in which Lord Justice Scarman, as he then was, held that, in determining whether a doctor had formed an opinion in good faith as to the balance of risk between termination and continuation of the pregnancy, one should look at all the surrounding circumstances. That case would clearly be of the greatest importance if in this country a husband sought to show that his wife's prospective abortion would be unlawful.
The Physical Sequelae of Abortion
No protection from prosecution is given to doctors by the Abortion Act 1967 unless, before a pregnancy is terminated, two doctors have each first come to the conclusion in good faith that the balance of risk to the mother favours termination. There would appear to be few grounds on which to doubt the good faith of doctors in those 5% of cases where the abortion is carried out for alleged medical reasons. But what about the 95% of cases where the abortion is carried out for other reasons? Are there in fact any grounds on which a doctor can believe in good faith that for a woman in normal health an abortion will actually make her health better?
The fact is that over the past 15 years, during which some 50 million abortions have been carried out under hospital conditions in various parts of the world, an enormous amount of research on this matter has been done by doctors which shows that abortion in fact makes maternal health worse, and therefore, except when (if ever) abortion is genuinely medically necessary, induced termination of pregnancy must always be contra-indicated on medical grounds. Since it is no easy matter to impugn the good faith of a doctor, some people think that if proceedings were brought it would be necessary to produce an overwhelming mass of evidence to show that no reasonable doctor could believe in good faith that induced termination of a normal pregnancy would improve health. There is, however, a great deal of evidence available on the physical sequelae of abortion, and in the hope that it may be of assistance to members we have collected and summarised below a dozen of the very many reports which have appeared over the past 14 years in various medical and other journals around the world.
1971. The International Journal of Gynaecology and Obstetrics (Volume 9-3) reported that following 100,000 abortions in Czechoslovakia, permanent complications such as sterility were registered in 20% to 30% of cases. These findings, the report said, did not differ from experiences in other countries such as Japan.
1973. On the 10th February the British Medical Journal carried a report from St. Mary's Hospital, Manchester, which showed that 58% of the patients studied had become pregnant within a year after abortion by hysterotomy, and that in a quarter of all such cases a substantial risk of rupture of the uterus was reported as a result of the previous abortion
1973. The American Journal of Obstetrics and Gynaecology (116-6-739) reported that a survey of 13,000 pregnant women in Athens showed that still-birth and prematurity rates doubled in women who had previously had abortions, and another Greek survey had found that one third of the women subjected to an induced abortion subsequently remained irreversibly infertile.
1974. On the 20th April the medical journal "Pulse" reported that research in Australia showed that in 1% of all pregnancies the cervix of the woman was so damaged that without treatment the pregnancy would not last for six months, and that in 3 out of 4 cases this was caused by a previous abortion.
1975. The Journal of the American College of Obstetricians and Gynaecologists (46-3) said that a complication rate of 42% was associated with the use of Prostaglandin F2 as an abortifacient. In the same year Professor Beazley of Liverpool University reported that suction termination could result in a nine-fold increase in the incidence of cervical or uterine damage.
1975. The American Journal of Epidemiology (102-3) reported a study of 11,057 pregnancies in West Jerusalem. The mothers who had previously had abortions had more bleeding and were less likely to have normal deliveries. Their babies tended to be prematurely born, were more often deformed, and were more than twice as likely to die soon after birth as were babies born to mothers who had not had abortions.
1976. On the 29th May the British Medical Journal carried a report from Bristol Maternity Hospital, which showed that the overall foetal loss in 211 patients who had had induced abortions was 17.5%, compared with 7.5% among patients who had had a spontaneous miscarriage.
1979. On the 2nd June the Medical Journal of Australia carried a report showing that 8% of pregnant patients who had had an abortion suffered a mid-trimester spontaneous abortion, and a further 8% had premature babies.
1980. The "Daily Telegraph" on the 20th May reported Mr. Robert Winston, of London's Hammersmith Hospital Special Infertility Clinic, as saying that one in three of women he saw with damaged Fallopian tubes had previously had abortions.
1983. On the 28th May the "Lancet" carried a report from the United States Centre for Disease Control, Atlanta, that "cervical injury is one of the most frequent complications of suction curettage abortion", especially in women under 17 years. And on the 3rd September 1983 the "Lancet" again warned gynaecologists to strive to avoid permanent damage to the cervix in the case of young pregnant women, and emphasised that the problem of avoiding this was especially difficult in the case of a first pregnancy.
1983. The medical correspondent of the "Sunday Times" reported on the 8th May that up to 5% of women get pelvic inflammatory disease after an abortion. In some women, the report said, a single episode of this disease is enough to cause infertility, and three episodes would cause infertility in 3 out of 4 cases.
1983. On the 29th September "The Health Services" carried a report from the United States Centre for Health Promotion and Education. This analysed 165,000 abortions, and found "major complications" had been caused in up to 500 cases. Dilation procedure was more dangerous to teenagers (due to damaging the cervix), but saline termination caused more damage in older women. The risk of death from abortion was twice as high for women over 30 as for women under 20.
In the light of all the foregoing medical evidence it is extremely difficult to see how any conscientious doctor who had found nothing physically wrong with a pregnant patient could possibly believe in good faith that an abortion would improve her physical health.
The Retiring Chairman's Address to the Annual General Meeting
At the Annual General Meeting of the Association in Manchester the retiring chairman Mr. Michael Bell took the opportunity to set before the members his views as to the basic principles that the Association should keep in mind, if it was to achieve its ultimate objective of restoring justice, and respect for life from the moment of fertilisation, in this country.
He built his talk round a proposition that whilst justice was the truest form of love, love was also the truest form of justice. He explained the first half of this statement by pointing out that love which does not conform to the principles of justice is not worthy of the name love. Thus a love which purports to help the mother at the expense of being unjust to her unborn child is not true love. Such misplaced compassion was very superficial, because it did not attempt to meet or even consider the real needs of the pregnant woman, and was usually not in the least concerned about the problems she might experience after having had an abortion. Furthermore many abortions which purported to be provided out of compassion were in fact provided because the people providing them were concerned about population statistics, or housing shortage statistics, or simply to make money.
Thus we in this Association, because we were concerned about justice, could rightly claim that it is we, and not the people who provide abortions, who have the truly compassionate approach to this problem.
In the second half of his talk he explained what he meant by saying that love was also the truest form of justice. He felt that there was a danger we could become so concerned about the unborn child that we ignored the parents of that child, and if we did this then we would never achieve our objectives, no matter how impeccable our motives.
He continued as follows:-
He continued as follows:-
"Love is not divisible. If we love the unborn child, because we love humans and the child is human, then by the same token we must love the mother of that child. Some people seem to think that justice is simply saying "no", when a woman asks for an abortion. Certainly justice demands that answer, but we must go further than that. To say "no" and leave it at that indicates a very shortsighted concept of justice, because love is the truest form of justice, and there is no love in rejection. If a woman is seeking the wrong answer to her problems, justice demands not that we reject her but that we help her to find the right answer.
So I would say to everyone who wants justice for the unborn child: open your heart wider. Love not just the child, but the family. We all know that the unborn child is physically not part of the mother, but in other ways he is very much part of the mother and of the father. He or she is bound to them by bonds of blood. Only through justice for the family can you achieve justice for the child. Because the child is part of the family. And what is justice for the family? It has to be set out in terms of love, because love is the truest form of justice.
If we want to protect unborn children we must protect the family. We must oppose those trends in society which break up families, or which bring children into existence-^ in circumstances where there is no family. We must change those things in society which make families reject children. We must change attitudes, but we must also change laws which do not adequately support the family.
To take just one example of injustice, the present practice which leaves the father out of the picture in an abortion is certainly not just, even if in most cases he wants to be left out. We must bring in the father as a responsible party. We can work for legislative change to do this, and such a change would command considerable support.
To take just one example of injustice, the present practice which leaves the father out of the picture in an abortion is certainly not just, even if in most cases he wants to be left out. We must bring in the father as a responsible party. We can work for legislative change to do this, and such a change would command considerable support.
Another form of injustice is the various influences which are brought to bear on a pregnant woman. So often women are put under pressure from husband, parents, boy-friends, doctors and social workers. Such pressures are unjust to both mother and child. Again, we can work for laws requiring such women to be independently counselled, and for sanctions against those who wish to put her under pressure for reasons of self-interest.
A third requirement of justice is that we should consider the future of the unborn child whose mother does not have an abortion. We would get wider support for making abortion illegal if women who get pregnant were not put, at a financial disadvantage if they decide to continue their pregnancies. Justice to the unborn child implies that he should have a place to live in when he is born and that whoever is looking after him should have enough money and support from the community to feed and clothe him, and look after him properly. Here again legislation is urgently needed, and we should support such legislation.
What is the implication of this for us as individuals and as an Association? It is that we will not achieve justice, except at a price. The price of justice is love. If we truly want justice for the unborn child then that child and his or her parents must become our friends, in the deepest and most meaningful sense of that word.
Unless we keep these truths before us, our talk of justice will never be more than just talk. But if we do open our hearts, justice can be achieved. In every pregnancy there is a right and just solution for all three parties concerned, if we are prepared to pay the price to find that solution. If we love, we will achieve justice. Because the truest form of justice is love."
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 protection of the law 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 1,400 members.
