The Association of Lawyers for the Defence of the Unborn
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| 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
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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.
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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.
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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.
