The Association of Lawyers for the Defence of the Unborn
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| Newsletter No 19 Autumn 1983 |
Contents: Activities of the Association; Forthcoming Conferences; The "Morning After" Pill; Case Notes (Emeh v Kensington (1983), Udale v Bloomsbury AHA (1983)); The Meaning of "Miscarriage"
The Association of Lawyers for the Defence of the Unborn
40 BEDFORD STREET, LONDON, WC2E 9EN
Chairman M. N, M. BELL. M.A. (Cantab.).
Vice Chairmen R. M. HAIG. LL.B. and Mrs. GABRIELLE LUMSDEN. LL.B.
Hon. Secretary C. R. FRADD. M.A.. LL.B. (Cantab.).
Hon. Treasurer T. G. A. BOWLES, M.A. (Cantab.).
Autumn 1983
Number 19
News and Comment
Activities of the Association
An Anglican Initiative
We are pleased that the London Diocesan Board for Social Responsibility wrote to us in May 1983 for information about the law relating to abortion, in connection with the recent deliberations of the Anglican Church on this subject, and that we were able to.help them. We hope that the overwhelming vote at the Anglican General Synod in July 1983 in favour of changing the law to provide greater protection for the child before birth will encourage many more Anglican lawyers to join this Association.
Membership
To increase the membership of this Association has always been one of our most important objectives, because the larger our membership the more notice is taken of our views, and the more effectively we can work within our profession. It was therefore heartening to hear at our Annual General Meeting on the 25th June 1983 that several members in the Midlands and London will be sending joint letters to their professional colleagues in their area, inviting them to join this Association. Experience has shown that this is one of the most successful ways of enlarging our membership.
Abortifacient Drugs
Our Association has continued to write to those in authority whenever we considered that the welfare of the unborn required it. We also hope that individual members will do likewise, because it is well known that more notice is taken of several letters than of just one, even if the one is written on behalf of a large association.
In May and June 1983 our Secretary had some correspodence with the Attorney General's chambers on the question of the legality of the "morning after" pill, pointing out that it acted as an abortifacient. He also wrote to the Minister for Health about the drug Depo-provera. The Government is under pressure to approve the use of this drug in this country. It is supposed to provide long-term contraceptive protection, but in fact there is evidence to show that in practice it also acts as an abortifacient, and therefore its use would be illegal. The widely publicised unpleasant side effects of this drug, and the possibility of it being administered to women who may not fully appreciate its effects, have so far prevented it from being authorised for use in Western countries, but there is now increasing pressure for approval for its use.
Finances of the Association
We are grateful to all those members who responded so generously to our recent appeal for funds. We hope that members like our advertisements in the legal press, which we have been able to resume thanks to your support. How long we will be able to continue bringing our views before the profession in this way will depend upon whether those members (the majority) who have not so far sent a donation decide to do so. If you are one of these, please could you put a cheque now in the envelope which was sent to you with your copy of the Summer Newsletter?
Convention on the Rights of the Child
This Association has now heard from Mr. A. D. Smith at the United Nations Department of the Foreign and Commonwealth Office that it has been decided that, with reference to the new Convention to protect the rights of the child, "international agreement could best be achieved more quickly by limiting its scope to children from birth to 18 years". The only concession which the Foreign and Commonwealth Office proposes for the protection of the child before birth is to include an Article in the Convention dealing with the need to lower the infant mortality rate, and to provide appropriate health care services for expectant mothers. Thus the 1959 Convention, which deals specifically with the need to protect the child before birth, will be set aside on the specious ground that it will enable international agreement to be achieved more quickly. We once again urge all members to write to Mr. Smith and express their concern about this. It would obviously be far better from the point of view of the unborn child not to have a new convention rather than to have one which ignores his rights.
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Forthcoming Conferences
The London Conference of the Association will be held this year at 2.30pm on Saturday the 15th October in the Canterbury Room of the Charing Cross Hotel. Tickets are £5 and a booking form can be obtained from our Vice-President Mrs. G. Lumsden. The speakers will be Dr. John Finnis, who will speak on the legal implications of the use of the post-coital pill, and Mr. P. R. Norris M.D., F.R.C.O.G., the Chairman of the British Section of the World Federation of Doctors who Respect Human Life.
The Manchester Conference of the Association will be held at the Grand Hotel, Aytoun Street, Manchester on Saturday the 29th October at 2pm. Once again the principal topic will be the "morning after pill", and the speakers will be Mr. David Poole, and Dr. Anna Flynn M.B., M.R.C.O.G., Senior Clinical Research Fellow in fertility awareness and natural family planning at the Department of Obstetrics and Gynaecology, Birmingham Maternity Hospital. The cost will be £5 per head and a booking form can be obtained from our Vice-President Mr. Robin Haig.
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The "Morning After" Pill
On the 10th May 1983 the Attorney General gave a Written Answer to a Parliamentary question in the House of Commons (Hansard, Cols. 238 and 239) in which he stated that four complaints had been made alleging that the supply and administration of what is commonly called the "morning after" pill contravenes sections 58 and 59 of the Offences Against the Person Act 1861.
He said that such pills were intended to inhibit implantation in the womb of any fertilised ovum, but he then went on to say that the phrase "procure a miscarriage" (which is the offence prohibited by those sections) could not be construed to include the prevention of implantation. The only reason, as distinct from comments, that he gave for this view was as follows:
"Whatever the state of medical knowledge in the 19th century, the ordinary use of the word "miscarriage" related to interference at a stage of pre-natal development later than implantation".
From this he drew the conclusion that to supply and administer the morning after pill did not constitute a criminal offence, and he ended his Written Answer with the statement that no proceedings were to be instituted.
A Political Decision?
As the final article in this Newsletter will show, the Attorney General was mistaken about the meaning given to the word "miscarriage" in the 19th century. But even if he had not made this mistake, one may still be forgiven for doubting whether his conclusion would have been different, or whether he would have allowed proceedings to be instituted.
The timing of the statement was highly significant. A costly advertising campaign to persuade women that they needed and wanted the morning after pill was about to be launched. Also a General Election was about to be announced, and the Government were aware that it was being widely stated that they won the 1979 General Election on the votes of women, and that to retain their votes was more important than ever before in the forthcoming election. The Attorney General was well aware that a decision by him to institute criminal proceedings would have held up the provision and availability of this pill, at least until the outcome of a criminal trial, and maybe even indefinitely.
So he had strong political motives for concluding that the supply and administration of this pill did not constitute a criminal offence, and the announcement that proceedings were not going to be instituted might well have been calculated to attract the votes of some women at the forthcoming General Election.
The question at issue here was, first, the interpretation of an Act of Parliament, and secondly whether certain criminal offences of an extremely serious nature had been committed. The facts were hardly in dispute, and more than one lawyer at least as eminent as the Attorney General had expressed the view in the correspondence columns of national newspapers that the acts in question were gravely criminal, a view also expressed in previous Newsletters of this Association.
If society believed that in such a situation the interests of justice could be sufficiently served by the Attorney General of the day expressing his opinion, there would be no need to establish courts, or appoint judges, to deal with such questions. But our society has established courts and appointed judges for this express purpose, who are eminently well qualified to interpret Acts of Parliament, to sift the facts and determine the issue. It seems incredible that in a situation such as this where distinguished lawyers had expressed grave concern that serious criminal acts were going unpunished, the Attorney General should not allow the matter to be decided by the courts established by society for that very purpose.
In reality the Attorney General's Written Answer takes us back to the days where questions of law were determined by the fiat of the executive, and in the political interests of the Government. One is reminded of the system reputed to exist today in Soviet Russia. It is indeed a black day for our country when the appointees of the Government can manipulate the British constitution for political ends in this way.
The Strength of the Evidence
It may well be that the Attorney General was reluctant to submit this issue to the scrutiny of the courts because he suspected that the case would probably go against those who supply and administer this pill, and because he feared that his Government would have been blamed by the voters for allowing the courts to consider the matter.
He did indeed have good grounds for believing that prosecutions would result in convictions. Certainly no scientists of any repute could have been found to give evidence that the lives of human beings begin at any stage later than the fertilisation of the ovum. And, once life has begun, then no matter how high the risk of death from natural causes, deliberately to extinguish that life has always been an offence in this country. The whole tenor of the Offences Against the Person Act 1861 is to protect human life and bodily integrity, and a study of that statute makes it manifestly clear that the "mischief" against which it was enacted was any attack on human life.
Had a prosecution been brought, a court would have had a number of obvious facts for consideration. For example, doctors calculate the length of a pregnancy from the date of fertilisation (see e.g. M. Brudenell F.R.C.O.G. in "The Complete Book of Baby Care", Octopus Books Limited 1980), because they know that that is when the baby starts growing.
The point is so obvious that it should not be necessary to labour it. If a baby is not alive before implantation, what would be the point of implanting a "test tube baby" in a womb? If a mother only starts to "carry" a conceptus when that conceptus emerges from the Fallopian tube into, the womb, who was carrying the tiny baby before that?
A Non-sequitur
In his Written Answer the Attorney General said that he considered it important that a failure to implant could occur spontaneously. Why was this important? His extraordinary implication was that because there could be a spontaneous miscarriage before implantation, therefore an induced miscarriage was legal. On this line of reasoning he would have to hold that because many people die a natural death, therefore murder is legal. No doubt some of these absurd arguments were put to him by those in Government Departments who want the National Health Service to be able to supply these pills. One can easily understand their reluctance to have these arguments aired in court.
A Matter of Personal Morality?
Leaving aside the implausible reasons given for the decision in the Written Answer, and discounting for the moment all the political motivation behind it, what the Written Answer amounts to is that the Attorney General is imposing his personal morality on our society, and in particular on those individuals whose lives are at risk.
On the 10th May 1983, just before the Written Answer was given to Parliament, the third leader in "The Times" discussed the matter in detail, and expressed the view that no prosecutions under the 1861 Act should be brought against those who provide this pill, because "on a balance of convenience" it was in the interests of society that this pill should be freely available. It may well be that the Attorney General genuinely believes that the lives of those whom it is his constitutional duty to protect (by enforcing the law against abortion) are of less value than the convenience of allowing their mothers to kill them. Such a belief is clearly based on certain moral beliefs about the absolute value of human life. The Attorney General is of course entitled to his personal moral and religious viewpoint, but he is not entitled to impose that viewpoint on the community by preventing the punishment of actions which the community clearly finds gravely objectionable and worthy of severe punishment.
He has a constitutional right not to prosecute in a particular case where he considers that the public interest does not warrant it, but this can be no justification for refusing to prosecute in a whole series of cases of killing of innocent human beings which many experienced lawyers consider to be gravely illegal.
Admittedly it was neither on grounds of personal morality nor political expediency that he reached his alleged conclusion in his Written Answer. But, as this article has shown, the reasons given in the Written Answer are so thin and utterly unconvincing that one is bound to look for alternative explanations. The only explanations one can find unfortunately reflect no credit either on the Attorney General or on his Government which is pledged to uphold the Rule of Law and respect for family life.
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Case Notes
Emeh v. Kensington, Chelsea and Fulham Area Health Authority and Others {The Times, 3 January, 1983)
Udale v. Bloomsbury Area Health Authority ([1983] 2 All E.R. 522)
By our Secretary Mr. C. R. Fradd
The English Courts have shewn themselves reluctant to award damages for the costs of rearing a child in cases where mothers have sued after giving birth following negligently performed sterilization operations. Whether or not this is commendable judicial policy (and it may well be), there are both sound and unsound reasons upon which this policy can be based. The two cases now being noticed graphically illustrate the difference.
In the Emeh case a mother of three had an unsuccessful sterilization operation and shortly afterwards became pregnant again. When she realised that she was pregnant she decided to have the child. In due course she gave birth to a child who unfortunately was handicapped. She sued, claiming damages not only for the pain and suffering and loss of earnings attendant upon the pregnancy but also for the maintenance of the child and loss of future earnings. Park J. rejected the first defendant's submission that where a child was wanted (which this child was considered to be as the mother had not sought an abortion) there was no injury. Instead he dismissed the claims for loss of future earnings and for maintenance of the child on the quite different ground that although the first defendants were admittedly negligent in not performing the sterilization properly, the plaintiff was so unreasonable in refusing to have an abortion that her conduct amounted to a novus actus interveniens and eclipsed their wrongdoing.
In general a plaintiff has a remedy in negligence when he suffers injury as a direct result of a defendant's breach of a duty of care which he owes to the plaintiff. There was no doubt in this case about the existence of the duty of care, nor about the defendants' breach of that duty, nor about causation. But where was the injury? Hitherto, in law as in life, the birth of a child has been regarded not as an injury but a blessing. To hold otherwise is to treat the very child as "the damage" or "the loss", and that not for any misconduct on the child's part but simply for being alive.
It is respectfully submitted that Park J. was at fault in not appreciating this (although he was but following the very dubious precedent of Scuriaga v. Powell, Court of Appeal July 1980, unreported). His error, however, went even further. To describe the mother's conduct as unreasonable and to deny her damages simply because she did not seek an abortion was tantamount to holding that, to mitigate the damage, she had a legal duty to abort her own child.
It cannot be too often repeated that, while under the Abortion Act 1967 a doctor may be exonerated from guilt if he aborts when two doctors hold certain opinions in good faith, nevertheless abortion remains prima facie a serious criminal offence under s.58 of the Offences Against the Person Act, 1861 punishable by up to life imprisonment. Mrs Emeh in not seeking an abortion refrained from committing that crime. It is surely not unreasonable to obey the law.
The Abortion Act is purely permissive; the Offences Against the Person Act is mandatory.
While an abortion in this case might have been permissible (and who can say retrospectively whether it would have been or not?) it is surely regrettable indeed that the learned judge should have taken it for granted that it would have been so, and upon that unargued assumption build a duty for which statute gives no warrant whatever. The Abortion Act does not impose a duty to abort upon anyone, let alone a mother. This was confirmed by Stephenson L. J. in McKay v. Essex Area Health Authority & Anor. ([1982] 2 W.L.R. 890 at p. 901).
In the Emeh case the desired result of not awarding damages against the Health Authority for the rearing of the child, but only for the extra pain, suffering, anxiety and loss of earnings directly occasioned by the negligence, could so easily have been achieved without falling into the errors mentioned above if only Park J. had been prepared to hold that the birth of a child was not in itself an injury. Happily this was the approach adopted by Jupp J. in the Udale case.
In this case the facts were very similar. A mother of four daughters had a sterilization operation and shortly afterwards became pregnant again. She did not have an abortion and in due course she gave birth to a healthy boy with whom she was delighted. She obtained damages for loss of earnings during the pregnancy and for pain and suffering directly due to the negligent conduct of the sterilization operation, but Jupp J. rejected the claim for damages for rearing the child and for extending the Udales' house to cope with the enlarged family. These claims would only have been valid if the boy's birth was itself treated as the injury. This Jupp J. held to be contrary to public policy because (i) no child should learn that his birth had been publicly declared a disaster; (ii) the injury suffered would be greater in the case of an unloved than a loved child yet to award damages on that basis would be unjust; (iii) doctors would be under subconscious pressure to recommend abortions to avoid the negligence claims which would otherwise arise from the birth of children; and (iv) a child coming into the world, though the world be a vale of tears, is a blessing and an occasion for rejoicing.
Let us hope that when the Emeh case goes to appeal the Court will heed the wise words of Mr Justice Jupp in Udale.
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The Meaning of "Miscarriage"
We are indebted to Dr. John Finnis, a Fellow and Prelector in Jurisprudence of University College, Oxford, for the following note on the meaning of "miscarriage", a copy of which had been in the hands of the Attorney General for several weeks before he gave his Written Answer in the House of Commons, to which we refer above.
Recent research by Mr. John Keown of Linacre College, Oxford, into the medical profession's understanding both of the facts about conception and early abortion, and of the law applicable thereto, amply confirms the conclusion stated by Professor Glanville Williams in his book The Sanctity of Life and the Criminal Law (London 1958), p.141:
"At present both English law and the law of the great majority of the United States regard any interference with pregnancy, however early it may take place, as criminal, unless for therapeutic reasons. The foetus is a human life to be protected by the criminal law from the moment when the ovum is fertilised".
All save one of the English enactments concerning abortion, beginning with Lord Ellenborough's Act of 1803, have referred to both "abortion" and "miscarriage", and in each case in such a way as to indicate that, if (as is most unlikely) the two terms are not to be understood as synonymous, at any rate the law's prohibition extends indifferently to both. Vide the preamble to s.2 of the 1803 Act (". . . with intent to procure miscarriage or abortion"), the sidenote to s.6 of the 1837 Act ("Punishment for trying to Procure Abortion"), the sidenotes to ss.58 and 59 of the 1861 Act ("Administering drugs or using instruments to procure abortion", etc.) and the heading to those two sections ("Attempts to procure Abortion").
It can be demonstrated that the medical profession campaigned for the enactment of the anti-abortion provisions of Lord Ellenborough's Act. And it is clear that at that time there was no illusion that pregnancy begins at implantation; on the contrary, conception and implantation were known to be quite distinct, and no relevant significance was attributed to the latter. It was well-understood that the conceptus, the new human life, travelled to the uterus via the uterine or Fallopian tube; Denman's Introduction to Midwifery (London 1794), vol. I, pp. 222ff. describes impregnation thus:
"Previous to or during the act of coition it is presumed, that one or more of the vesicles, or ova. contained in the ovaria, is brought to a state fit for impregnation, and that the male semen being transmitted to the cavity of the uterus, is thence conducted by one of the fallopian tubes to one of the ovaria, where it perfects the rudiments of the foetus, or impresses them already perfected with the principle of life. The prolific ovum, having undergone its first changes in the ovarium. is then loosened from its connexion, grasped by fimbrae, and conveyed by one of the fallopian tubes to the cavity of the uterus".
The most distinguished authority on medicine and the law in the nineteenth century was perhaps A. S. Taylor. In his Manual of Medical Jurisprudence (London 1844), pp 596ff., he stated that the term "miscarriage", as used in the statutory prohibitions of abortion, has the broadest sense:
"In a popular sense and here a popular appears to have been purposely selected in preference to a professional term miscarriage signifies the violent expulsion not merely of a child, but of moles, hydatids, and other diseased growths, or even of vagula of blood".
In the 1905 edition of Taylor's work, edited by Frederick Smith, it is accurately remarked (vol.2, p.150):
"the statute only uses the word 'miscarriage', including in that term comprehensively the emptying of a pregnant uterus at any time of conception, ignoring altogether the technical terms abortion, miscarriage. premature confinement, which are merely convenient descriptive terms for medical men".
F. J. Taussig's classic medical works on abortion make the same point about the legal meaning of "miscarriage" being synonymous with abortion: The Prevention and Treatment of Abortion (London 1910), p.2. In his later work, Abortion: Spontaneous and Induced (London 1936), p.23, Taussig further maintains that abortion should be defined as "the detachment or expulsion of the previable ovum", a definition which plainly understands "ovum" as "fertilised ovum" and equally plainly includes the unimplanted embryo.
The whole matter is made explicit in many other medical works of historic influence. Charles Tidy, Legal Medicine (London 1883), p. 154, wrote:
"The ovum as really lives from the moment of conception, as does the child or the man. Criminal abortion, therefore, is as criminal at the instant of conception, if we could tell it, as at any other point of pregnancy. The life may be feeble and the embryo incomplete, but neither feebleness of life, nor incompleteness of embryo constitute the slightest argument against the existence and perfection of the vital principle".
Likewise Arthur Luff, Text-book of Forensic Medicine (London 1895), pp. 178-9:
"The ovum acquires vitality from the moment of its impregnation, and from that moment the attempt to unlawfully procure abortion becomes a criminal offence".
Likewise Dr. William Sellers, barrister, in his Handbook of Legal Medicine (1906), p. 187.
Mr. Keown's very extensive research has revealed no medical or medico-legal or legal work, until the last few years, which attributes any legal significance to implantation.
The courts, too, have spoken plainly enough when opportunity presented itself. In R. v. Wycherley (1838) 8 C & P 262, Gurney B., at the Oxford Assizes, charged the jury of matrons that "Quick with child" (for purposes of the execution of the sentence of death upon a woman) "is having conceived", and plainly implied that it matters not how early in pregnancy. Gurney B.'s ruling doubtless lacked historical accuracy; it shows, however, the effect of the previous fifty years' advances in medical knowledge. The learned reporter adds an interesting footnote about the detection of pregnancy in its earliest stages by examination of cervical mucus; he also quotes the medical authority of the day. Dr. Paris, as denying that "there is any difference between the aboriginal life of the child and that which it possesses at any period of pregnancy" (at 264 n).
In Queen-Empress v. Ademma (1886) IX Indian L. R. Madras Series 369, the Court of Appeal at Madras held that on a charge of causing miscarriage under s.312 of the Indian Penal Code, it matters not that the woman had been pregnant for only one month, or that what was expelled from her "was only a mass of blood":
"The term 'miscarriage' is not defined in the Penal Code. In its popular sense it is synonymous with abortion, and consists in the expulsion of the embryo or foetus, i.e. the immature product of conception. The stage to which pregnancy has advanced and the form which the ovum or embryo may have assumed are immaterial.
The words 'with child' mean pregnant, and it is not necessary to show that 'quickening', i.e. perception by the mother of the movement of the foetus, has taken place, or that the embryo has assumed a foetal form".
This judgement seems impeccably accurate. Any alternative view leads to absurdities, particularly if it ascribes significance to implantation. In the case, for example, of an ectopic pregnancy, there is never implantation; yet such an event is pregnancy and its outcome will be miscarriage, induced or spontaneous.
As Glanville Williams rightly said, there is a mass of American authority to like effect. And there seems to be no judicial authority the other way.
The Association of Lawyers for the Defence of the Unborn accepts the undisputed finding of modern embryology that human life begins at conception. The Association accordingly holds that natural justice requires that the unborn child, no matter how young, should enjoy the same lull protection of the criminal law as is enjoyed by his or her mother or father or by any other human being. The Association was founded by eight lawyers in May 1978 and already has well over 1000 members.
