Abortion Law and Ideas - Newsletter 29

The Association of Lawyers for the Defence of the Unborn

Scottish Catholic Observer

Contents:  The Psychological Consequences of Abortion; "Abortion in Great Britain: One Act, Two Laws; Abortion Law in America; The Post-Coital Pill.

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

Spring 1986

Number 29

News and Comment

The Psychological Consequences of Abortion

In our Autumn 1985 Newsletter (number 27) we sought to show that the physical consequences (sequela) of abortion were such that the circumstances win which a doctor could decide in good faith that the balance of risk of physical sequelae favoured abortion must be rare indeed.  This article seeks to show that the same is true of psychiatric sequelae.

Nobody has produced any evidence to show that the mental health of women was made worse by pregnancy before 1967, and that since 1967 this problem has been overcome by abortion.  Yet 90% of abortions are carried out on the ground of risk to mental health.  If termination of pregnancy improved mental health there would now be massive evidence of an improvement in mental health in the female population.  Why have those who claim this to be the case never been able to produce any such evidence?  Is it because nobody is prepared to allege that pregnancy makes mental heath worse?  Or is it because nobody is able to believe in the coincidence that in virtually every case where a woman requests an abortion a gynaecologist is able to discover that in that particular case termination is indicated for psychiatric reasons?

In the absence of any evidence that abortion makes mental health better the pro-abortion lobby has sought to defend abortion on psychiatric grounds by asserting that at least abortion does not make mental health worse.  Even if they were able to demonstrate this they would only be half-way to providing that the balance of risk invariably favours termination.  But in fact they have certainly not been able to demonstrate even this to the satisfaction of any impartial observer.

Does Abortion Damage Mental Health?

It is necessary to consider, therefore, what long-term mental damage is caused by abortion.  Unfortunately, this has not been researched by doctors in anything like the same depth as has the physical damage.  The report most commonly cited by pro-abortionists is that of Dr. Colin Brewer published in the British Medical Journal in 1977 (B.M.J. 1: 467-477).  This purported to show that only 3 in 10,000 woman who had abortions suffered psychoses as a result.  The report was based on a questionnaire addressed to practising psychiatrists in the West Midlands.  Dr Brewer's pro-abortion views are well known, however, and only 25% of the psychiatrists who were approached participated.  Furthermore, the figure was based on hospital admissions, and many psychoses are not now treated in hospitals.

A much more reliable was that of Sim and Neisser in "The Psychological Aspects of Abortion" (Univ. Public. of America Inc., Washington D.C. 1979).  This showed not only that post-abortion psychoses were more common than Dr. Brewer had indicated, but also that about 50% of them did not respond to treatment.  This was contrasted with psychoses arising following the birth of a baby, virtually all of which responded to treatment with a full remission of symptoms.

An article by Dr. R.K. McAll in "The Lancet" of 16th August 1980 showed a clear link between abortion and anorexia nervosa.  The article showed that where there were terminations of pregnancy for non-medical reasons this could create hidden guilt feelings either in the patient or in a close member of the family, and that self-starvation could be a consequence of these feelings.

A recent study in Canada entitled "The Abortion Choice: Psychological Determinants and Consequences", (Gold et al. Concordia University 1984) funded by a grant from the Fa,mly Planning Division of Health & Welfare, purported to show that abortion does not have negative psychological consequences.  One of the few consultant psychiatrists who has made a thorough analysis of this problem over many years is Dr. Myre Sim of Victoria, British Columbia.  Writing in the September 1985 Newsletter of our sister organisation Canadian Advocates for Human Life, she showed that the survey which preceded this recent study was so superficial that no firm conclusions at all could be drawn from it. So far as any conclusions at all could be drawn, they showed that maternity patients had better psychological adjustment than abortion patients, and not the contrary.

Dr Sym has little time for gynaecologists who believe that surgery is the best solution for mental health problems.  She says:-

"Because of my conservative approach to therapeutic abortion I was able to demonstrate successfully that psychiatry was competent to deal with all the psychiatric hazards of pregnancy, and that the day that a psychiatrist requested a gynaecologist to treat his patient's mental state has not arrived."

Dr Sym is equally scathing about social workers who think that surgery is the best solution to the social problems of their client.  She says of the reasons why women seek abortions:-

"As most of these reasons are social and not necessarily formidable ones, it forces one to consider why we keep turning out social workers by the thousands, when they are obviously incapable of dealing with elementary social problems, and are prepared to sacrifice the life of an unborn child on the altar of their incompetence."

No report on this matter can be regarded as anything more than an indication of the damage done to mental health by abortion.  In the nature of things it is never going to be possible to assess accurately the extent of the psychiatric sequelae of abortion.  Apart from anything else, a personality or neurotic disorder may be said to amount to mental illness.  There is in fact a continuum between normal experiences of depression or guilt and the point where these could be described as neurotic disorders.

Is Absence of "Distress" Proof of Mental Health?

Surveys carried out by those who seek to show that abortion does not have harmful psychological effects usually rely heavily on interviews with women who have had abortions.  If large numbers of such women claim to have experienced no guilt or distress following their abortion this is taken by the researcher as evidence to show that abortion does no psychological harm.  But may it not n fact be evidence of exactly the opposite?

That not many women suffer from dementia, schizophrenia or manic depressive psychosis following an abortion is not surprising, in the present climate of permissive morality.  But does this mean that no damage has been done to their mental health?

The truth is that grief or depression following the loss of a baby by miscarriage, whether natural or induced, is a normal and natural reaction.  It is reasonable to assume that there is something wrong if a  woman does not experience such feelings.  When a woman claims not to have any of these normal reactions following an abortion this must give rise to a suspicion that the feelings are being suppressed, and experienced at a deeper level.  And indeed many women have said that it has not been until many years later that they have realised how deeply their lives have been affected by that choice.

Thus the statistics quoted by the researchers in support of the thesis that abortion has no psychiatric sequelae may in fact show just the opposite.  That is why the conclusions drawn from such surveys are worse than useless.  They are positively misleading.

The Possibility of Civil Proceedings

In the light of this, all one can say is that there is at present no evidence that providing an abortion for a patient will (on balance) improve her mental health.There are no rational grounds or statistical evidence on which such a conclusion could be reached.  Abortionists who want to allege that abortion can be beneficial will point to a woman who is anxious about the effect of pregnancy on her career or her accommodation.  But anxiety about a career or accommodation is not a symptom of mental illness, unless it is of irrational or hysterical proportions.  On the contrary, it is normal and natural, and would indicate that the woman was in good mental health and aware of the matters about which she ought to be concerned.  Such woman may have social problems, but the medical profession does not exist for the purpose of solving social problems.

Indeed a doctor who uses medicine for such a purpose is mis-applying his sills, and if he damages his patient's health as a result could be held to be negligent.  It is only a matter of time before proceedings for negligence are brought against a doctor for providing an abortion when there were no medical grounds for such treatment and the woman subsequently suffered adverse mental side effects.  In such a case the anticipated sequelae of abortion, as set out in this article would be highly relevant, as they are matters of which the doctor should have been aware.

The Possibility of Criminal Proceedings

In order for an abortionist to avail himself of the defences provided by the Abortion Act 1967, it would not be necessary for hm to show that abortion was the right or even the best treatment for his pregnant patient.  It would suffice for her to show two doctors had each formed the opinion in goof faith that an abortion would improve the mental state of the mother.

An editorial review in the British Medical Journal (B.M.J. 1976, 1:1239) suggests that he would find difficulty in doing even this.  It found that at the very least there is a universal transient depression following abortion, and that those influenced by others or advised to have a termination may have continuing feelings of regret and more severe degrees of depression.  Abortion was even more clearly contra-indicated in the case of patients who were genuinely mentally disturbed, because these were the ones most likely to show serious psychiatric sequelae following an abortion.

It would appear, therefore, that a doctor who sought to show that he had formed the opinion in good faith that the balance of risk favoured a termination of pregnancy on grounds of mental health would be in considerable difficulty if a prosecution were brought.  Furthermore his position is likely to become much more difficult in the near future, because various pro-life organisations, both in this country and overseas, are now heavily involved in post-abortion counselling.  The demand for such counselling appears to be overwhelming, and a very substantial body of case histories is rapidly being built up.  When this is collated and analysed it will present a formidable problem for any doctor wishing to show that he genuinely believed that an abortion would improve the mental health of a particular woman.

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"Abortion in Great Britain: One Act, Two Laws"

An article with the above title by Mr Kenneth Norrie, who is Lecturer in Law at the University of Aberdeen, appeared in the Criminal Law Review for August 1985 at page 475.  Members of this Association are strongly urged to read this article, which in many respects reinforces the views put forward by this Association as to how the law relating to abortion in this country should be interpreted.

The main contention in this article is that, because the Infant Life (Preservation) Act 1929 does not extend to Scotland and thus Scots law does not specifically and explicitly protect the child capable of being born alive, the defence provided to a doctor by the Abortion act 1967 are, in Scotland, available to doctors who kill unborn babies of any age, regardless of whether the babies are capable of being born live.

The "Potential" Child

In some respects members of this Association would have to take issue sharply with some of the remarks in the article.  Mr Norrie quotes Scottish cases to argue that:

"the victim of the crime of abortion or attempted abortion in Scots law is the potential child."

the concept of a "potential child" is not one that is known to English Law.  The case which he quotes in support of this theory pre-date the Abortion Act 1967 by many ears, and the Abortion Act, which applies in Scotland, knows no such euphemism.  In section 1(1)(b), for example, it openly and clearly refers to the proposed innocent victim, the unborn baby, as "the child", and indeed the Abortion Act clearly recognises throughout that abortion is a means of bringing about the death of an actual child.

More recently i the case of Emeh v Kensington A.H.A. [1984] 3 All ER 1044, Lord Justice Slade, in giving the reasons why the plaintiff decided against having an abortion, said "the child in this instance was that of her husband".  A little later on in his judgement he said: "I think that they could and should have reasonably foreseen that. . . . . she might well decide to keep the child."  (Our emphases).

Numerous other judgements might be quoted to show that although the unborn child is occasionally referred to by judges as a "foetus", there has never been any suggestion that the foetus is anything other than a chid at a particular stage of development, nor any suggestion that there can be such a thing as a "potential child".

The Potential Pregnancy

Furthermore Mr Norrie states that : "A woman is clearly not pregnant simply because her egg has been fertilised".  He correctly draws attention to the fact that this must be the case where the fertilisation takes place "in vitro", but one cannot infer from this that a woman is not pregnant when her egg is fertilised in the normal way in her own Fallopian tube.  The proposition that a woman who has conceived a child is not pregnant until the moment when, about a week following the conception, the child implants in her womb is not a wonderful new medical discovery.  On the contrary it is an absurd fiction invented by certain lawyers in an attempt to exculpate doctors who artificially induce an abortion between conception and implantation.

The word "pregnant" in ordinary language means, and has always meant, "having conceived", as is confirmed by the Oxford Dictionary.  This matter was dealt with fully in our Autumn 1983 Newsletter, and we remain convinced of the very serious unsoundness of the law of the Written Answer given to the House of Commons by the Attorney General on 10th May 1983 (Hansard, Cols.238 and 239).  This ordinary meaning of the word is also the meaning given in leading medical dictionaries, and the points made in the article by Dr. John Finns on "Miscarriage" on the back of the same Autumn 1983 Newletter are unassailable.

On the question of whether the law against abortion covers the situation between conception and implantation, F.J. Taussig's classical medical work on abortion "Abortion: Spontaneous and Induced" (London 1936) maintains that abortion is "the detachment or expulsion of the previable ovum", a definition which plainly understands "ovum" as "fertilised ovum", and equally plainly includes the unimplanted embryo.  In R v Wycherley, [1838] 8 C & P 262, Gurney B., at the Oxford Assizes, charged the jury that "quick with child is having conceived", and plainly implied that it matters not how early in the pregnancy.  There are other authorities to the same effect.

One may look at the question from the point of view of the mischief intended to be prevented.  Quite clearly the fertilised ovum is a life in being, by any definition, and is equally clearly a human life.  The mischief that the law against abortion was intended to prevent was the unlawful taking of innocent human life, which is clearly brought about by destruction of the life between conception and implantation.

The Potential Abortion

In dealing with the question of whether it is a criminal offence to provide an abortifacient to a woman before it is known if she is pregnant, Mr Norrie makes some very interesting observations.  He points out that s.58 of the Offences Against the Person Act 861 provides that a person may be charged with procuring an abortion whether the woman is pregnant or not.

He further points out that s.1 of the Criminal Attempts Act 1981 makes unlawful an act done with intent to commit an offence, even though the facts are such that the commission of the offence is impossible.  He then finally points out that neither of these Acts applies to Scotland.

His emphasis on this gives a special significance to the timing of his article.  A.L.D.U. members will recall that in our Summer 1985 Newsletter (Number 26) we reported that the Assistant Procurator Fiscal in Edinburgh was looking into the question of whether trials of the drug RU486 being carried out in Scotland were illegal.  This drug is the new "abortion pill" which is being given to women to induce a miscarriage.  Mr Norrie seems to concede that the use of a "precautionary" pill, taken by woman without knowing whether she is pregnant or not, may well be illegal in England, but argues that its use is not illegal in Scotland.  Does this explain why these trials are being carried out north of the Border?

Throughout his article Mr. Norrie shows an awareness of many points relating to abortion which have been previously urged by this Association.  With the reservations mentioned above, this article is a most useful contribution to an understanding of the present state of the law in the two different parts of the United Kingdom.

_______________________________________

Abortion Law In America

by John Warwick Montgomery M.Phil in Law (Essex), Ph.D. (Chicago), of the Middle Temple, Barrister

We are informed by Mohr, in his standard work on abortion in America, that "in the period from 1880 to 1900 the United States completed its transition from a nation without abortion laws of any sort to a nation where abortion was legally and effectively proscribed", (J.C. Mohr, Abortion in America: the Origins and Evolution of National Policy 1800-1900: New York Oxford University Press 1978 at page 226).  This is, however, a dangerous half-truth, for prior to the enactment in 1828 of the New York anti-abortion statute which became a model for those of many other states, the common law existed - and that common law was essentially the English common law as set forth by such classic commentators as Blackstone.  Thus the state anti-abortion statutes, which became more and more severe by the end of the 19th century, gradually eliminating the earlier statutory distinction between the foetus before or after quickening, were a genuine reflection of the respect for unborn life in the English common law.  By the end of the 1950's, most U.S. jurisdictions banned abortion completely except to preserve the life of the mother.

In 1973, this pattern was radically changed, not by statue but by U.S. Supreme Court decision in the well-known case of Roe v Wade [1973] 93 S.Ct. 705.  A Texas anti-abortion statute (typical of most state statutes criminalising abortion) was struck down as unconstitutional, especially in that it violated the "right to privacy" of the Plaintiff, a single pregnant woman.  Henceforth American women would have an absolute right to physician-performed abortions during the first trimester of pregnancy, and state legislatures attempting to regulate abortion during the second and third trimesters would be radically limited in the extent to which they could do so.  In actual effect, Roe v Wade judicially created abortion on demand in the United Sates.

Blackmun J. wrote for the majority in this leading case, and his opinion remains a jurisprudential mystery to many on both sides of the Atlantic.  The "right to privacy" on which the decision chiefly relies is nowhere mentioned in the U.S. Constitution;  it was first argued for a constitutional right in a Harvard Law Review article in 1890 by Warren and Brandeis.  But Blackmun's use of the doctrine in Roe v Wade bears virtually no relation to the original meaning of that legal principle.  (The Court would hardly argue that whenever one's privacy is potentially disturbed, e.g. by prying neighbours or obnoxous newsmen, one may kill the source of the disturbance and the result would be justified homicide!)  Understanding Roe v Wade requires not jurisprudential acumen but sociological perception:  as is so often the case with contemporary U.S. Supreme Court decision, social and political considerations played the primary role.  The majority in Roe v Wade say as much:  "This holding is consistent with the relative weights of the respective interests involved . . . . . and with the demands of the profound problems of the present day".

The case-law picture in the United States since Roe v wade can best be seen by a short catalogue of the most important U.S. Supreme Court decisions on the subject from1973 to the present, as follows:

Doe v. Bolton, 410 U.S. 179 (1974) (companion case to Roe):-

Requirements that a hospital committee or a second doctor approve an abortion are unconstitutional; state residence cannot be required to obtain an abortion.

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976):-

Spousal consent and blanket parental consent requirements are unconstitutional, a requirement that a woman certify "that her consent is informed and feely given and is not the result of coercion is constitutional.

Maher v. Roe, 432 U.S. 464 (1977):-

The federal Constitution does not require that tax dollars be used to pay for non-therapeutic abortions for the poor.

Poelker v. Doe, 432 U.S. 519 (1977) (companion case to Maher):-

Public hospitals need not provide non-therapeutic abortions in their facilities.

Bellotti v. Baird (II), 443 U.S. 622 (1979):-

For a parental consent statute to be constitutional, a minor must be given the alternative of going before a judge or administrator to show either: (1) that she is mature enough to decide about abortion without parental involvement, or (2) that even if immature, an abortion without parental involvement would be in her best interest.

Harris v. McRae, 448 U.S.  297 (1980), and Williams v. Zbaraz, 448 U.S. 358 (1980):-

Neither the Medicaid statute nor the U.S.  Constitution requires tax dollars to be spent for "medically necessary" abortions for the poor.

City of Akron v. Akron Centre for Reproductive Health, 103 S. Ct 2481 (1983).  Roe v. Wade reaffirmed:-

An informed consent ordinance is unconstitutional:  a physician must have discretion to decide what information to give or withhold from a woman considering abortion.  the standards for the constitutionality of a statue requiring parental consent were reaffirmed.  Legislative regulations concerning maternal health are constitutional only when they comply with standards established by professional medical organisations.  A 24 hour waiting period is unconstitutional.  A requirement for "humane and sanitary" disposal of aborted unborn child is unconstitutionally vague.

Planned Parenthood Association of Kansa City, Mo. v. Ashcroft, 103 S. Ct 257 (1983) (Companion case to Akron):-

The requirement that a second doctor be present in a post-viability abortion to aid a live-born child, the requirement that a pathology report be completed after each abortion, and a parental consent statute with a proper judicial consent alternative are constitutional;  a second trimester hospitalisation requirement is constitutional.

Simpoloulos v. Virginia, 103 S. Ct.2532 (1983) Companion case to Akron and Ashcroft):-

The requirement that second trimester abortions be performed in a licensed clinic was held to be constitutional.

The viewpoint is frequently expounded that the U.S.  Supreme Court has been moving in a more conservative direction on abortion since Roe v. Wade.  The cases belie that conclusion. True the Court has ruled against as constitutional right to publicly funded abortions (Maher, Poelker, Harris);  and it has allowed for a limited range of parental consent statutes, as well as a requirement that second trimester abortions be performed in hospital or licensed clinics (Bellotti, Ashcroft, Simopoulos).  But spousal consent, and legislative efforts to set forth the substantive content of the woman's own "informed consent" have been roundly rejected (Danforth, City of Akron).  Most significantly, Roe v. Wade was reaffirmed in the City of Akron case (1983), but with a powerful dissent by Justice O'Connor, who would clearly like to see the decision reversed.  Unless or until the composition of the Court changes, however (as it doubtless will during the next presidential term, since five of the current justices are seventy five years of age or older), the American legal landscape offers virtually no right to life to the unborn child.

_________________________________________

The Post-Coital Pill

In our Winter 1984 Newsletter (No.24) we pointed out that the above pill, which is administered after intercourse is in fact an abortifacient, and not a contraceptive.  To provide the pill therefore is an offence under ss.58 and 59 of the Offences Against the Person Act 1861, to which the provisions of the Abortion Act 1967 will normally provide no defence.  It has, however, been drawn to our attention that in certain circumstances the provision of this pill would in fact act as a contraceptive, and not as an abortifacient, and therefore its provision would not be illegal.  It is very important for members of this Association who are concerned to argue the case agains the unlawful provision of this pill to be absolutely clear as to what the medical effects are.  We have therefore consulted the World Federation of Doctors who Respect human Life on this issue.  It is our normal practice in this Association to consult the Federation on matters of this sort, and we are deeply grateful to them for all the help which they have given us over the years.

We understand that the precise medical position is as follows:  There are three possibilities where this pill has been provided following intercourse.  First of all, obviously, if the act of intercourse takes place  during the three weeks out of every four in which it is impossible for conception to occur, then its only possible effect will be to act as a contraceptive, in respect of future acts of intercourse during that four weekly period.  Secondly, if the particular act of intercourse takes place in the three days prior to ovulation, then the pill will have a contraceptive effect to prevent fertilisation.  Only if the act of intercourse takes place 24 hours after ovulation has occurred will the pill have the effect of causing an embryo created as a result of that act of intercourse to abort.  In simple terms, therefore, there is only one day in a woman's monthly cycle on which if she takes the post-coital pill it will cause her to have an abortion.

Any doctor, therefore, who wished to keep within the law could easily do so by a few simple enquiries directed to his patient.  Only if his enquiries revealed that it was possible that ovulation had taken place within the previous 24 hours could be be said to be providing the pill with intent to procure a miscarriage, and therefore committing an offence under the law against abortion.

The above facts about the medical position are given for the assistance of members of this Association who are called upon to advise on this matter.  They take no account of the fact that there are strong medical grounds for arguing that this pill should not be provided to a woman under any circumstances.  As many as half the patients who are given this pill have adverse side-effects, and in some cases it can lead to very serious complications such as ectopic pregnancy.  These dangers must never be overlooked.

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.

Abortion Law and Ideas - Newsletter 28

The Association of Lawyers for the Defence of the Unborn

Mount Taygetus - wikimapia

Plutarch reported that unwanted Spartan newborns were abandoned there in a practice called infant exposure.

Contents: Chairman's Comments; Suggestions for Action; Gillick v West Norfolk & Wisbech A.H.A. & D.H.S.S.; Postscript to Mr Enoch Powell's Bill;  The Human Child;  Surrogacy;  The Rights of a Husband

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

Winter 1985

Number 28

News and Comment

Chairman's Comments

by David Poole Q.C.

Chairman's Opening Remarks at the A.L.D.U. committee Meeting 12th October 1985

This is the First time I chair an A.L.D.U. Committee meeting.  We are all aware that we have work to do, otherwise we would not be here.  We are all aware that the work demands a number of qualities:  a willingness to think and learn:  a readiness, when necessary, to speak out or to write out:  not least, persistence and stamina.  Attacks on human life are as old as Cain and Abel.  Attacks on embryonic or infant life did not begin with the Abortion Act 1967:  they are almost as old as human history and have occurred in every society.

I do not for a moment suggest that this should encourage us to think less badly of the abortion Act or of the other attacks on embryonic and infant life constantly evolving in hospitals, laboratories and elsewhere.  On the contrary, the historical context should add impetus to what we do.  There is always some strong reason for taking human life.  The Spartans, no doubt, in their opinion had excellent reasons for exposing their weakling infants on Mount C, the Eskimos even better ones for putting their grandmothers out of the igloo:  the Chinese believe that they have first class reasons today for their ordinance that families be limited to one child.  Not that arbitrary limitation of families (by whatever means) is confined to China, though elsewhere the means may be more subtle.

A fundamental contention of this Association is this:  that no reason, however strong, for killing an unborn child can ever be strong enough, because it ignores the value of the child.  But we have to acknowledge that motives for abortion are often very strong and very strongly felt.  The girl pregnant by rape has not covenanted for her condition.  On the contrary, she has been subjected to extreme injustice and her pregnancy is one long-term consequence of that injustice.  The neat removal of the child is seen by the abortionist as the neat removal of that injustice itself and therefore as an overwhelming reason for abortion:  and not just by the abortionist but, I would hazard, by maybe 80-90% of those who have ever been asked to think about this matter.  The remaining 10-20% of us are regarded, at best, as slightly dotty, at worst as dangerous fanatics.  We had better recognise that, because nothing more clearly illustrates our isolation and the steepness of the hill we have to climb.

The task is formidable.  It is no less than a part of the task of projecting man and woman at every stage, including the very earliest, as being more than mere matter:  as having, every single one, irreducible value:  and as drawing or deriving the value not from the State, nor from their fellow men, nor from the circumstances of their conception, nor even from their parents - but from their own nature.  It is there that unfashionable thing, a spiritual task - and all the more daunting for that, in an ambience of profound materialism.

This will sound a bit high-pitched, a long way removed from the day-to-day practical problems of striving for protection under the law for the unborn child:  but it is not, I believe, removed at all.  Unless we understand why we are doing what we are doing, and why it is infinitely worthwhile, our energies may flag.  But once given that understanding, they will be charged.

******

Suggestions for Action

Members frequently ask, having joined the Association, what they can do actively to promote its aims.  Each member can best answer this for himself.  It is no part of the Committee's function to impose a pattern of participation.  What follows is merely a list of suggestions which some may find helpful.

When appropriate, speak out, or write, for the protection of the human embryo.  The press, local and national, your representatives in Europe, at Westminster, and in local government, your colleagues all have an interest in the subject, although some may not yet be aware of it.  Once you have acquired the habit of communicating, develop it and keep it up.

Again, in appropriate cases, make known your willingness to speak publicly in your own area e.g. to local SPUC or Life groups, medical and legal societies, universities, polytechnics, schools and churches.  In many parts of the country, the demand for such speakers far exceeds the supply, but your activity as a speaker ay well itself create a demand.

Above all, think of the unborn, and strengthen and refine your arguments for their protection. 

Gillick-v-West Norfolk & Wisbech A.H.A. & D.H.S.S. [1985] 3W.L.R. 830

The decision of the House of Lords in this case has come to hand very shortly before we go to press, and time and space do not permit extensive comment.  The decision is of interest to us in that it relates to a doctor's freedom to give advice or treatment to children under 16, and this almost certainly includes abortion advice or treatment.

Many members of this Association will have reacted with disappointment to the result.  But it is idle in the law, not to say futile, to rail at verdicts and issues we should have preferred otherwise decided;  more profitable to scrutinise judgements thoroughly to see what they really contain.

The judgements that went against Mrs Gillick were those of Lords Fraser, Scarman and Bridge, (and it is no disrespect to the speech of Lord Bridge to comment that of its four pages, three concerned themselves with the admittedly important question of the appropriate form of proceedings (judicial review vs declaratory relief), and only one, the last, addressed itself to the question at issue in the Appeal.)  Lord Bridge (there) made clear that in allowing the appeal of the D.H.S.S. he had adopted the reasoning of Lords Fraser and Scarman, (with which he fully agreed), and it is accordingly to those two speeches that one looks for the reasons for the decision. 

Lord Fraser, after reviewing the relevant statistics, concluded that there was no statutory provision compelling him to hold that a girl under 16 lacked the legal capacity to consent to contraceptive advice, examination and treatment provided that she had sufficient understanding and intelligence to know what they involved.  He then went to the heart of the case, rejecting Lord Justice Parker's insistence upon a fixed age up to which parental duties and the rights derived from them are exercisable, in favour of "the judgement of what is best for the welfare of the particular child."

Lord Fraser continued "Nobody doubts, certainly I do not doubt, that in the overwhelming majority of cases the best judges of a child's welfare are the parents.  Nor do I doubt that any important medical treatment of a child under 16 would normally only be carried out with the parents' approval.  That is why it would and should be 'most unusual' for a doctor to advise a child without the knowledge and consent of the parents on contraceptive matters.....  The only practicable course is, in my opinion, to entrust the doctor with the discretion to act in accordance with his view of what is best in the interests of the girl who is his patient."  Lord Fraser then spelt out a 5-part proviso to the doctor's justification to treat without parental consent or knowledge:

(1) that the girl (although under 16) will understand his advice;

(2) that he cannot persuade her to inform her parents or to allow them to inform the parents that she is seeking contraceptive advice;

(3) that she is ver likely to begin or to continue having sexual intercourse with or without contraceptive treatment;

(4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;

(5) that her best interests require him to give her contraceptive advice, treatment or both without parental consent.

"That result", continued Lord Fraser, "ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so.  Any doctor who behaves in such a way would in my opinion be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his professional body accordingly.

Lord Scarman, who took pains to express the view that Mrs Gillick had performed a notable public service in directing judicial attention to the problems arising from the interaction of parental right and a doctor's duty, agreed with Lord Fraser.  He then set out the question for the House:  "Can a doctor in any circumstances lawfully prescribe contraception for a girl under 16 without the knowledge and consent of the parent?", and identified three features of today's society not known to our predecessors: contraception as a subject for medical advice and treatment;  the increasing independence of young people;  and the changed status of women.  The law, he said, agreed these developments at its peril.  The House's task was to search for a principle, or set of principles, recognised by the Judges over the years and keep abreast of the society in which it lived and worked.  Following Blackstone, parental right endured only so long as it was needed for the protection of the child.  Certainty was always an advantage in the law, and sometimes a necessity, but brought with it inflexibility which could obstruct justice.  If the law imposed on the process of "growing up" fixed limits, where nature knew only a continuous process, the price would be a lack of realism in an area where the law must be sensitive to human development and social change.  The underlying principle was this:  parental right yielded to a child's right to make his own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.  As a matter of law the parental right, to determine whether or not their child under 16 would have medical treatment, terminated if and when the child achieved a sufficient understanding and intelligence to enable him or her to understand fully what was proposed.  It would be a question of fact whether a child had sufficient understanding of what was involved to give a consent valid in law.  Until the child achieved the capacity to consent, the parental right to make the decision continued save in exceptional circumstances (e.g. emergency or parental neglect or abandonment).  Applying these conclusions to contraceptive advice and treatment, there was much that had to be understood by a girl under 16 if she was to have legal capacity to consent.  It was not enough that she should understand the nature of the advice;  she must also have a sufficient maturity to understand what was involved.  There were moral and family questions, especially her relationship with her parents;  long term problems associated with the emotional impact of pregnancy and its termination;  and there were the risks to health of sexual intercourse at her age.  A doctor would have to satisfy himself that she was able to appraise these factors before he could safely proceed upon the basis that she had at law the capacity to consent.  Ordinarily, the proper course would be for him, first to seek to persuade the girl to bring her parents into consultation, and if she refused, not to prescribe unless he was satisfied that her circumstances were such that he ought to proceed without parental knowledge or consent.

It could be said, Lord Scarman concluded, by way of criticism that the decision would result in uncertainty and leave the law in the hands of the doctors.  Uncertainty was the price to be paid to keep the law in line with social experience, which was that many girls were fully able to make sensible decisions about many matters before 16.  Great responsibilities would lie with the medical profession, but it was a learned and highly trained profession regulated by statute and governed by a strict ethical code which was vigorously enforced.  Abuse of the power to prescribe for girls under 16 would render a doctor liable to severe professional penalty.

This judgement falls far short of giving doctors and clinics "carte blanche", as has been asserted.  Lord Fraser and Lord Scarman are insistent that for a doctor to act without parental consent would be 'most unusual', and take pains to stress that they would expect the profession to discipline any doctor who should treat a child without the requisite parental consent, save in the most unusual case.  A very heavy duty now lies upon the medical profession, and upon the Department of Health, to ensure that the expectations of the House of Lords, and of the public, are not confounded.  The vast majority of General Practitioners enjoy, and have earned, the public's confidence, but there is a widespread anxiety about the Family Planning Clinics, and in particular about the Brook Advisory Centres with their explicit interest in canvassing the young.  Given the clear guidelines laid down by the House, the public is entitled to expect that the Clinics and Centres, depending as they do upon public funding, will be closely and continuously supervised and made to comply with the strict provisions laid down by Lord Fraser and Lord Scarman.

Postscript to Mr. Enoch Powell's Bill

Members will be aware that Mr . Enoch Powell's Unborn Children (Protection) Bill, though commanding overwhelming support in both Houses, was talked out earlier this year.  Mr Powell deserves praise for focusing public and Parliamentary attention upon the issue of the human embryo in vitro, but it is only right to add that the terms in which this Bill was drafted caused the greatest unease amongst the officers of this Association.  For the terms of the Bill, whilst apparently protective of human life, in fact were such as would have permitted and even encouraged its destruction.  The principal problem was that the Bill permitted fertilisation of unlimited numbers of ova for the purpose of enabling a woman to bear a child.  Moreover, destruction of 'spare' embryos, far from being forbidden or discouraged, was to have been mandatory at the lapsing of each period of authority.  With techniques of superovulation readily available, not to mention the service of ovum donors the destruction of countless human embryos would inevitably have followed.

It is not known what private legislation other M.P.s may be contemplating.  But the very least that is needed is a Bill explicit and specific in its protection of each embryo, containing a provision, however worded, to the effect that no ovum be fertilised in vitro save with the intention that the resulting embryo be inserted in the body of a woman with the purpose of enabling her to bear it to term.  Even then the IVF procedure will be fraught with danger for the embryo.  A woman might change her mind between fertilisation and implantation, and a doctor is probably under a duty of care to screen embryos for 'fitness' before insertion, failure to discharge which would sound in damages.  Indeed the field is open for the eugenist.  Nonetheless the provisions suggested would provide a clear and wide, if not comprehensive, measure of protection for human embryos, and far, far more than was provided by Mr Powell's Bill.

The Human Child

This Association was founded to defend the unborn human child.  That apart it has neither purpose nor justification.  The child it tries to defend exists, living and developing though the stages all of us have passed, between conception and birth;  and of the devices deployed by those who justify the interruption of that life and development, none has been more transparent than the effort to deprive the object of their attentions of its status as a child. 

It is important for them that this effort should succeed.  Nothing could be more threatening of the long-term health of the practice and trade of abortion than a widening awareness that what it is about, what its business actually consists of, is the killing of children.  So, as is common in the battle for men's minds, they have systematically set about the language.  'Child' has been banished from their discourse as a description of what it is they kill: 'embryo', 'foetus' (or 'fetus'), 'conceptus', (even for the new born, 'neonate'), have been dragooned into service as suitable substitutes, (c.f. the argument both explicit and implicit in the Warnock Report, that the newly-conceived human being is not a person;  and the very recent classification of the human child in its first 14 days after conception not an an embryo but as a 'pre-embryo').  Thus Professor Glanville Williams at 13.4 of his Textbook of Criminal Law, (2nd Edition: Stevens 1983) first poses the question "Why do you keep on referring to the fetus?  Wouldn't it be better to admit that we are killing an unborn child?", then answers it like this:

"There is a linguistic point and a philosophical point.  Ordinary language is uncertain;  people used to speak of a pregnant woman being 'great with child', but on the other hand a woman might say she has no child yet.  She is 'in the family way' rather than having a family.  It is quite natural to speak of a mature fetus as an 'unborn child', but it would be odd to refer to a microscopic fertilised ovum in that way.

The philosophical debate is whether there is a difference in moral status between the fetus and the unborn child.  Only by stages do women come to regard the embryo as a separate entity from themselves.  Most people agree that at some point of development a fetus has or should have some rights, but not the full rights of a born child.  We cannot go into the problem further, but it is enough to say that the word 'fetus' is here used to cover the product of conception before birth."

It is hard to know who will be satisfied by this explanation for the discarding of a precise and beautiful and powerfulEnglish word, and its substitution by a Latin one precise enough but remarkable neither for its beauty nor its power.  Is ordinary language, as Professor Glanville Williams clams, uncertain?  The phrases 'she conceived a child', 'she was carrying a child', she lost her child' seem certain enough.  They are plain, or rather beautiful English.  Substitute phrase by phrase 'fetus' for a 'child' and feel how it sounds.  Would any woman knowing she had conceived, say she had a fetus but no child yet?  And would it be considered odd to refer to a microscopic fertilised ovum as a child?  That is precisely how, by doctors and by common men and women alike, the ovum, newly fertilised, has for centuries  been described.  The moment a woman conceives, she conceives a child.  What else?

Common sense and common speech alike concede to the newly conceived human being its status as a child:  the mere word evokes instincts of care and protection.  And where common sense and speech have pointed the way, the statutes have followed.

So s.58 of the Offences against the Person Act 1861 is aimed at 'every woman being with child', and provides protection for such child from its beginnings and irrespective of his or her stage of development between conception and birth.

The Infant Life (Preservation) Act 1929, subject to a proviso strictly defined, extends its protection to every 'child capable of being born alive'.  `Not even the Abortion Act 1967 seeks to deprive the object of its attention of its status as child.  It leaves the Acts of 1861 and 1929 intact and, in section 1 (1)(b), describes its target (there the seriously handicapped) as a 'child'.

In the matter that concerns this Association, which is the matter of human child, common sense, common speech and the language of the statutes are all on our side.  They are powerful tools:  we should preserve and use them ourselves and encourage their use by others.

_____________________________________

Surrogacy

by Dr Adrian Rogers, L.R.C.P., M.R.C.S., M.B., B.S., D.Obst.R.C.O.G., M.R.C.G.P.

The Surrogacy Arrangements Act 1985 received the Royal assent on 16th July.  Is surrogacy a practice which threatens the interest of the unborn child?  In the following article Dr. Rogers puts forward his view on this matter.

A woman who is prepared to conceive in the full knowledge she intends to abandon her child is acting irresponsibly and immorally.  A surrogate mother does precisely this, either for financial gain or out of some misguided conviction she may be helping an infertile couple own a baby which can never naturally belong to them both.  What is missing in the arrangement is almost any sign of regard for the welfare and best interests of the child so created.

Surrogacy has created a moral minefield in which we overlook at our peril certain basic needs of children.  Such needs may not be recognised by the law but do form part of that conventional wisdom and morality which has stabilised family life and which for centuries has preserved it as a safe environment for the rearing of children.

That a child should be conceived within marriage and as the product of a loving relationship comes first.  Surrogate children must always know that their natural mother, from whose genes they are formed, deliberately produced them to discard them for money.

That a child should be the genetic product of both its parents has hitherto been taken for granted.  Surrogate children, if then reared by those who commission them are the product of only one of the "parents".  The other parent bears no natural relationship to the child at all.

That a child should be born from the womb of its own mother is yet another important basic.  In womb-leasing another couple's embryo is reared and born from the womb of the surrogate mother.  Such a child has not only a genetic mother but also a natural mother from whose womb he or she was carried for the pregnancy.  Such a womb is no clinical incubator but a natural repository upon which the health and life-style of the carrying mother have enormous influence.  

Surrogate babies are deliberately disadvantaged from conception and are thus very different from those children who by misfortune or ill chance have been conceived in love or passion and who are then in need of adoption.  Adoption is an altogether different matter.  Here a suitable couple is sought from amongst great competition to raise the child, and it is the child who is considered first and foremost.  The parents are very carefully selected, and their ability to cope with the fact that they are not the natural parents is not the least of the considerations in the choice.

One cannot but feel compassion for those couples who are not able to conceive.  Some will find themselves in that situation through no fault of their own.  The majority however will be suffering from the adverse effects of modern morality;  venereal disease, post-abortion problems and post-contraceptive loop problems.  They have no right to have a child without regard to the child's welfare.  They certainly have no right to undermine family life.

Britain's first surrogate baby is technically the product of a quasi-adulterous relationship.  Her true parents are not less responsible for her simply because they have made convenient financial arrangements to salve their consciences or achieve their desires.  Such children should be placed in the care of the Court whose responsibility is to demand proof of paternity and then apply all those tests of personality which would normally be requisite of an adopting couple.  A couple would need to be mature, and one test of maturity is the ability to act responsibly;  a couple who commission a child do not fulfil that requirement easily.  In the Warnock Report it clearly states that "The child's interest being the first and paramount consideration, it seems likely that only in very exceptional circumstances would a Court direct a surrogate mother to hand over the child to the commissioning couple".

There are those who will claim that surrogacy, like prostitution, is not a matter for legislation but an issue of personal freedom.  Such freedoms are very soon taken away if they harm others or undermine society.  Thus it is that prostitution remains a personal freedom and is unlikely to be made an illegal act;  but loitering, pimping and kerb-crawling can be and are illegal.  For this reason commercial surrogacy should be made illegal.  Conspiring to produce surrogate children should also be considered a highly unethical act for doctors and other professionals.  In this way we state firmly the view of society and underpin morality.  Perhaps more importantly in so doing we protect children from this type of exploitation.

The Rights of a Husband

Report by Notary Dr. W. Esser of Cologne

Amstgericht Köln (Local Court, Custody Division), Beschluss (order) March 15th 1984 - 53 X 87/84

For the decision of the Custody Division of the Court in a matter concerning the custody of an unborn child:  the question of whether and abortion is allowed in an emergency situation in compliance with the will of the mother and agains the will of the father.

Decision:

In the action concerning the custody of the unborn child of spouses A.X. and B.X. the power to apply (to the District Court) for an injunction restraining the wife from procuring an abortion is conferred on the husband actin on behalf of the child.

Reasons:

The husband applied for the above-mentioned order in a statement dated 15th March 1984.  He sought an ex parte decision decision on the grounds that his wife had already arranged an appointment with her gynaecologist to perform the abortion the following day.  The decision of the Custody Divisional Court is urgent since the District Court (Landgericht), with which the motion for an injunction has been filed, can decide on the motion only after this Court's decision.

The arguments in support of the husband's motion which the Court accepts are the following:

1)  Under our legal system it cannot be doubted that the unborn child has a right to protection.  Whether and under what circumstances this protection must be qualified in the face of rights of a higher rank is another matter.  This Custody Divisional Court is not competent to decide this question.

2)  The order is based on 1628 BGB (German Civil Code).  The parents do not agree as to whether or not the pregnancy should be interrupted.  In a case such as this, the Custody Divisional Court, exercising its due discretion, has to consider whether to make a decision in favour of one parent, namely the father.  Exercising this disretion in the instant case, the stated order had to be granted, since without it the pregnancy would certainly have been interrupted on the next day, and a judicial examination of the legislative prerequisites for the abortion would have been no longer possible.

Note

HusbandX. and the "unborn child of Mrs X." had at the same time applied to the District Court (Landgericht) Cologne, for an injunction against Mrs X. and the gynaecologist Dr. F.   The applicants sought an injunction ordering the respondents to desist from killing the second applicant (unborn child) by interrupting the pregnancy of the first respondent (wife), under the penalty of the maximum possible fine or arrest.

Mrs X. was according to the information from the case reporter, in the tenth week of pregnancy.  The District Court appointed a day for a hearing two weeks later;  in addition it informed the gynaecologist Dr. F., who was to perform the abortion, by telephone.  The latter, as a result, cancelled his participation, and Mrs. X. in any case was persuaded to give up her plan.

After the twelfth week an interruption of the pregnancy in accordance with 218(a) Para. 2 No. 3 and Para. 3 StGB (German Penal Code) under the "emergency indication" was no longer permissable.

Since then the child was born.  (The foregoing report is based on the detailed information of the case reporter and the records of the above mentioned proceedings.)

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.