Association of Lawyers for the Defence of the Unborn
CHANGE THE LAW
Protect Human Babies Before Birth
Newsletter 30
Summer 1986
Contents: A.G.M. 1986; Legislation to Protect Test-Tube Babies; Activities of the Association - Educational Work, Membership Growth, Publications; The Post Coital Pill; Surrogacy; Appointment of Gynaecologists; Changing the Law.
40 BEDFORD STREET, LONDON, WC2E 9EN
Patrons of the Association: The Rt. Hon. Lord WHEATLEY; the Rt. Hon. Lord RUSSELL OF KILLOWEN
Chairman and Editor D. A. POOLE, Q.C., M.A. (Oxon),
Hon. Secretary M. N. M. BELL, M.A. (Cantab.)
Hon. Treasurer T. G. A. BOWLES, M.A. (Cantab.)
Summer 1986
Number 30
News and Comment
Annual General Meeting
The 1986 Annual General Meeting of the Association will be held on Saturday 19th July 1986 at the Grange Hotel, Southbourne Overcliff Drive, Bournemouth. The meeting will begin at 2.0 p.m. and will finish at 5.00 p.m.
Lunch can be booked at the hotel, whose telephone number is Bournemouth 424228. Members of the Association who intend to come to the A.G.M. are asked to notify the Secretary at his own Bournemouth address above.
The guest speaker at the A.G.M. will be Professor J.J. Scarisbrick, the Chairman of Life (Save the Unborn Child). Members who heard him speak at the debate on the Sanctity of Lifre at the Law Society Conference in 1984 will know that he is a powerful and able speaker for our cause. We, therefore, hope our members will make a special effort to come and hear him speak.
_________________________________________
Student Conference
A conference for students and young lawyers has been arranged in Liverpool. It will be held on Saturday 8th November 1986 at the Catholic Chaplaincy of Liverpool University, from 11.30 a.m. to around 5.30 p.m. This is the first conference that we have been able to arrange for our younger members for some years, so it is hoped that all members under the age of 30 will make an effort to attend.
Please would you write as soon as possible, confirming that you would like to come, to the organiser, Miss Pauline Connor of Flat 173 Minster Court, Edge Hill, Liverpool L7 3QF. There is no attendance fee, though a collection will be taken at the conference to cover expenses. Members are welcome to bring with them guests from other pro-life organisations.
There will be talks at the conference not only on the legal aspects of abortion from nationally known speakers, but also talks about how to promote the aims of the Association, and how to work effectively for the pro-life cause. This is your chance to meet and talk with young pro-life lawyers from all over the country. The conference is a "must" for any young lawyer who is seriously interested in taking an active part in the pro-life cause.
_________________________________________
Legislation to Protect Test-Tube Babies
In the Winter 1985 Newsletter (No 28) certain reservations were expressed by our Chairman about the Unborn Children (Protection) Bill introduced by Mr Enoch Powell. Since then a similar Bill has been introduced by Mr. Ken Hargreaves M.P. This Association does not consider it sufficient merely to point to the obvious limitations of this Bill, but we would like to urge M.P.s who are concerned about the threat to the human rights of the embryo which experimentation represents, to bring forward a watertight Bill. For this reason a Bill has been drafted on behalf of the Association by Mr. Gerard Wright Q.C. the text of which follows. We urge all our members to bring this to the attention of their Member of Parliament, and to ask him or her to introduce a Bill in these terms if the opportunity should arise.
Human Embryos Bill
A Bill to control the procedure of fertilising human ova outside the human body and to protect human embryos produced by this procedure.
Unlawful In Vitro Fertilisation
1.
Any person who fertilises or causes to be fertilised a human ovum outside the human body save for the purpose of implanting the ovum so fertilised in the womb of the woman from whom it has been removed shall be guilty of an offence namely unlawful in vitro fertilisation and shall be liable on summary conviction thereof to a fine not exceeding level 5 on the standard scale.
Human Embryo Abuse
2.
Any person who wilfully does anything or permits anything to be done to a human embryo existing outside the human body not being an act necessary for the welfare of that human embryo or who having the custody care or control of a human embryo so existing wilfully omits to do or to cause to be done anything necessary for the welfare of that embryo shall be guilty of an offence namely human embryo abuse and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Interpretation
3.
In this Act the expression 'human embryo' means the product of the fertilisation of a human ovum by a human spermatozoon, and a human embryo shall be deemed to exist from the moment that a human spermatozoon unites with a human ovum.
Short Title and Commencement
4.
(1)
This Act may be cited as the Human Embryo Act 1986.
(2)
This Act shall come into force on the expiration of the period of one month beginning with the day on which it is passed
_______________________________________________
Activities of the Association
A Report by our Secretary
It has been some eighteen months since we last had room to include in our Newsletter a report of the activities of the Association. This does not mean that during this time we have been less active than before. Far from it, as the following note will show.
The activities of the Association are principally carried on by the members of the Committee, although during the part two years there have been some important initiatives by other members. It may, therefore, be of some interest to readers to know who are the present members of the Committee of the Association. It now has fourteen members, of whom four were among the the original group of eight lawyers who set up the Association in May 1978. The officers of this Association are those whose names are shown at the head of this Newsletter and are our two Vice-Chairmen, Mr Robin Haig and Mrs Anne Curran who are solicitors practising in Cheshire and Cardiff respectively. Other members of the Committee are Mr Gerard Wright Q.C. of the Northern Circuit, Major General J.A. McIlvenna C.B., a former Director of Army Legal Services, and six other solicitors, Mr. Basil Pinsent, Mr Eric Moyle, Miss Lesley Cottrill, Mr Christopher Fradd, Mr John Dilger and Mr Peter Kelly. Finally, as a member advising on students, who make up ten per cent of the membership of our association, is Miss Pauline Connor from Liverpool.
The Association aims to hold two conferences each year for the benefit of members of the Association, one in the south and one in the north. In 1985, partly owing to the tragic death of our Vice-chairman Mrs Gabrielle Lumsden who had been very much involved in organising the London conferences, we were only able to hold one conference in Manchester. Nevertheless this was very well attended by members from all over the country and was fully reported in our Autumn 1985 Newsletter.
Two important matters of concern to us as lawyers have preoccupied the Committee over the past eighteen months. One was the proceeding brought by Mrs. Victoria Gillick to uphold the right and duty of parents to decide on medical treatment for children under sixteen. Although Mrs Gillick was not successful, nevertheless the clear words of Lord Fraser and Lord Scarman in the House of Lords in her case ([1985] 3 W.L.R 830) have had, and will continue to have, an effect on the provision of abortion to minors.
The other important matter during this period was the Bill introduced by Mr. Enoch Powell to make it illegal to use human embryos for experimentation. Mr Powell came to our Manchester Conference in July 1985 to talk to us about this Bill. Although the Association had reservations about the extent to which it would achieve his intended objectives, we were encouraged to note the extraordinary public interest in the welfare of the very youngest human beings. In the event, Mr Powell was not successful, despite there being a very substantial majority in Parliament for his Bill.
Educational Work
The principal activities of members of the Committee are giving lectures and talks, and writing articles and letters. All members of the Committee have been active in this respect over the period in question. The Association receives numerous requests for talks on aspects of the law relating to the unborn from all the pro-life and pro-family organisations, to which we are delighted to respond.
We have also been able to accept a number of invitations to talk to students in Universities, and we feel that this is particularly important work since law students are the future of our profession. Among the Universities at which talks were given during this period were Oxford, Cambridge, Essex, London and Sheffield. In addition considerable efforts have been made by our student representative to make the Association better known in all Universities through the Law Faculties.
Growth in Membership
A major initiative in 1985 was a circular letter sent by eleven of our solicitor members in Birmingham to all the solicitors in Birmingham; this resulted in the immediate enrolment of a number of new members, and a great deal of interest in the Association was generated among solicitors in Birmingham. The Committee continues to urge members in other towns to do the same. If any members would be willing to be involved in an initiative of this kind we would be most grateful if he or she would get in touch with our Secretary. Similar projects are under active consideration at the present time by members in London and Manchester.
A decision was made by the Committee in 1985 that the Newsletter, which at present goes out free to all our members, would in future be available by subscription to non-members. The subscription is £2.50 per annum, for a minimum of two years. If, therefore, any member knows of somebody who he or she thinks would benefit by receiving our Newsletter, we hope he or she will send £5.00 to our Treasurer with a request for that person to receive our Newsletter for the next two years.
We last reported on the growth of membership in 1983 when we had 1100 members. At the present time the number is around 1500. The principal source from which new members come is our advertising in legal journals. Thanks to the generosity of members of the Association we were able to step up our advertising in the main professional journals towards the end of 1985, and since then there has been a steady growth in membership.
Our advertising is also the principal means we use to fulfil the primary objective of the Association, which is the education of our own profession. It is evident that our advertising is seen and read widely by lawyers, and we hope that all members of the Association have seen their advertisements and approve of them. Suggestions for new ideas for advertisements, and improvements from the members would be greatly welcomed by the Committee.
Advertising is necessarily very dependant on finance, and has only been made possible by the generosity of many mebers. There are unfortunately still many memebrs who do not give ay financial support at all to their Association.
On several occasions suggestions have been made that there should be a subscription for membership of the Association, but in fact that is not practical in an Association like ours. The disproportionate amount of work involved in collecting subscriptions would be very considerable, and the payment of an annual subscription must act as a substantial dis-incentive to members to continue their membership. It has always been the firm opinion of the Committee that to introduce a subscription would almost certainly reduce our membership without increasing our income. We rely instead on the goodwill and generosity of our members to support the Association to the extent they think proper and possible. The Association is not an organisation which people join for their own financial benefit. Nobody would enrol in A.L.D.U. unless he or she felt deeply about the very great injustice of abortion, and we hope that we can rely on the generosity of members to help the Association continue with its work.
Publications
The Association produces a number of publications for the use of its members; these are free to any member wishing to have them, and can be purchased by non-members. Reprints are available of a number of articles written by officers of the Association which have appeared in legal journals and other publications. In particular, in 1985 we produced a new pamphlet "An Introduction to the History and Present State of the Law relating to Abortion in England", by C.R. Fradd, for some years Secretary of the Association. We highly recommend this to members, who will be sent a copy free on request. It may be purchased by non-members for £1.00. We also recommend to members two publications produced by our Secretary personally. These are in question-and-answer form. One deals with the various issues relating to In-Vitro Fertilisation, and the other with the law relating to abortion. They are free to members, and their cost to non-members is 10p each plus postage. In addition, we regularly update our blue folder, and we hope that our members will write in to our Secretary and obtain fromn him as many copies as they think they can distribute among their friends and colleagues in their locality.
_________________________________________
The Post-Coital Pill
We have drawn the attention of members to the post-coital pill in several of our Newsletters (notably 15, 18,19, 24 and 29). In those Newsletters we have made clear that in the view of this Association to administer this pill is unlawful and a criminal offence, because it is done with the intention of procuring a miscarriage. By section 59 of the Offences against the Person Act 1861, which created the statutory offence of supplying or procuring drugs etc. to cause an abortion, this offence is committed whether or not this woman is with child at the time.
In our Spring 1986 Newsletter (No. 29) we pointed out that, hypothetically it would be possiblefor a doctor, by providing the pill as a contraceptive, not to commit any offence, if he had been able to ascertain that the preceding intercourse had taken place at a time when it would be impossible for the woman to conceive.
Two or three of our readers have written in, pointing out that this could be misleading on the grounds that no competent doctor would ever provide such a pill for the purpose of contraception, since such a heavy dosage would be medically unacceptable; and that the only reason for providing such a pill in such a dosage would be to cause and abortion if fertilisation had taken place and the woman was therefore carrying a child.
One of our medical readers has also written to point out that even if there was an intention to use such a pill "to prevent the ovulation or as a spermicide, there is no real evidence that it does either". We are not competent to become involved in medicinal controversy about the effect of various kinds of treatment. Our only purpose, as lawyers, is to clarify what would be the legal implications of providing any particular treatment, if it had a particular effect. We would therefore simply point out that for an offence to be committed contrary to section 58 or section 59 of the Offences against the Person Act 1861, there must be an intention to procure a miscarriage. Thus whatever may be the effect of this pill in the unlikely effect of it being administered, (for example following rape) with the sole intention of preventing conception, there would be no offence under those sections of that particular Act.
______________________________________________
Surrogacy
We have had occasion to mention the topic of surrogacy previously in our Newsletters, particularly in Newsletters 16 and 28. At first sight it may appear to some members that this does not directly concern the Association. The Association is primarily concerned with the destruction of human beings, and surrogacy is concerned with the creation of human beings. Nevertheless, one cannot take such a narrow view. In the first place our overall concern for the unborn must take into account anything which creates a disadvantaged child, deprived of the basic human right to be brought up by his or her own parent. Secondly, the surrogacy mentality is basically the same as that of abortion: the child is viewed as property to be created for my benefit or to be destroyed if I do not want a child, or the child is handicapped.
For these reasons among others this Association will monitor carefully any attempts to change the law relating to surrogacy. We would therefore particularly like to draw the attention of our members to the new Bill introduced by Lord Halsbury in the House of Lords. We wish this Bill every success, and we urge our members to support it in any way they can.
The Surrogacy Arrangements (Amendment) Bill was read for a second time in the House of Lords on 11th March 1986 and sent to a Committee of the whole House.
Speaking in support of the Bill, Lord Denning pointed out that it was amending the Surrogacy Arrangements Act 1985 in the light of a case reported in 1985 in the Family Law Reports. In that case the Court of Appeal held that the baby belonged to the "carrying" mother, and that they man who had provided the male gametes had no rights whatever in the child.
In the light of that case Lord Denning asked the Lords to support the two main principles behind the new Bill. The first was that any arrangement which was a surrogacy arrangement would be void and unenforceable, whether made with a view to payment or not. The second was that the child born to a surrogate mother in pursuance of a surrogacy arrangement should for all purposes in law be regarded as the child of that mother.
The other main object of the Bill, as Lord Denning pointed out, was to implement the recommendation of the Warnock Committee to make it a criminal offence to negotiate or facilitate a surrogacy arrangement, whether or not for payment of money. The present Act makes surrogacy arrangements illegal only where there is a payment, and the new Bill would remove this limitation.
____________________________________
Appointment of Gynaecologists
by David Poole Q.C.
It has long been suspected that gynaecologists with a conscientious objection to abortion have been under a grave disadvantage when applying for posts within the N.H.S., and that as a consequence the "conscientious" gynaecologist has been steadily edited out of his own profession.
A very clear example of the workings of this process has just been brought to our attention. It is from the North Western Regional Health Authority in a document bearing the tile "Appointment of Consultant Obstetrician and Gynaecologist with duties in the Trafford Health Authority". Paragraph 2 of p.3 and paragraph 3 of p.4 read as follows:
"It should be noted particularly that termination of pregnancy is at present carried out at Trafford only on strict medical grounds and this is one aspect of the work which the successful candidate will be required to develop and expand.
"(Duties of the Post) To establish and run a termination of pregnancy service for Trafford resident patients."
Particular note may be made of the words "required" and "duties", and the paragraphs may now be considered in the light of s.4(1) of the Abortion Act 1967.
"Subject to subsection (2) of this section" [viz. saving life or preventing grave permanent injury], "no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection."
How, in law or in common sense, are the N.W.R.H.A.'s "requirements" and "duties" to be reconciled with s.4(1)? This question has been put to the Authority by members of this Association in the North West and an answer is awaited, but members in every area of the country are urged to uncover and, where appropriate, to challenge appointment procedures within their own Health Authority. All it requires is determination and a small supply of postage stamps.
___________________________
Changing the Law
A personal view by Michael Bell
Amongst the pro-life organisations there are widespread differences of opinion on the topic of changing the law. Let us consider what these differences are and try to understand the reasons for them and if possible form some sort of judgement of what is the best course to pursue. The first question to resolve is whether any change in the law would reduce abortion. There are several reasons for supposing that it would not. Let us examine them.
- Pro-lifers in New Zealand were able to have an Act based on our own Abortion Act 1967 amended by legislation. The amendment reduced the grounds for abortion to cases where there was a substantial risk of serious injury to the mother if the pregnancy continued. But the result of this amending legislation was not a drop in the overall numbers of abortions. Initially, many women went to Australia for their abortions. But since the Government did not favour the change and the law was not properly enforced, the number of abortions taking place in New Zealand soon rose to the former level. The number of abortions was largely governed by supply and demand rather than the provisions of the law.
- When in 1966 Roumania passed a law restricting the grounds for abortions, the average number of children per family rose from 1.90 to 3.63. The reason was that the Government favoured the new law and enforced it. Law enforcement is of key importance. The Roumanian Government was concerned about its falling population. By contrast, official thinking in England is that we haver too many people, and unborn babies as well as the Rule of Law suffer accordingly.
- There is reason to believe that it is public opinion rather than the law which determines the number of abortions. The partial legislation of abortion in 1967 certainly changed the public attitude to abortion and the media began to adopt the strong pro-abortion slant which it has maintained ever since. Many people still take their ethics from the House of Commons 1967 attitude, even in Scotland where the Infant Life (Preservation) Act 1929 does not extend, and in Northern Ireland where neither that Act nor even the Abortion act 1967 extends.
It is alleged that the statutory presumption in the 1929 Act about "28 weeks" has been instrumental in preventing the aborting of babies older than 28 weeks here in England. But in Scotland, where there is no such statutory presumption, late abortions are as rare as in England. The reason is because most women have decided one way or the other about abortion by the seventh month of their pregnancy, and also because late abortions carry increased risk to the mother.
As regards Northern Ireland to which the Abortion Act does not extend, most women who want abortions travel to England. If we repealed or partly repealed the Abortion Act they would presumably travel to the Continent. Would this save lives? Without a change in attitude it is only too possible that to repeal the Act would not significantly reduce abortions, although the saving of even one life would be most welcome.
It should be remembered that changing the law to make illegal something which is legal is a very different matter from legalising something previously illegal. To make a hitherto criminal activity legal imposes no additional law-enforcement problems at all, and it is obviously easy to relax the law. But to make criminal an activity which has hitherto been legal obviously demands more vigorous law enforcement. Under our Constitution there is mo power in English law to make the Attorney General (who superintends the Director of Public Prosecutions) enforce the law. It is not even possible to enforce the law by private prosecutions, because the Attorney General has power to step in and halt such prosecutions.
The next step to consider is this. Supposing the law were amended or repealed, not only does it seem unlikely that many cases would be brought before the courts, but past sad experience also suggests that juries are quite likely to be given incompetent or incorrect directions on the law in the judicial summings-up, and that this can easily result in reluctance on the part of juries to convict criminal doctors.
But might a change in the law have other consequences? If everyone believed it was illegal to kill babies aged 20 weeks or more because the law said that in clear and simple terms, would this mean that doctors, parents, boyfriends etc would no longer exert pressure on patients, daughters and girlfriends to kill babies who have attained that age? Would this mean that doctors would be less willing to kill such babies? If the law limited abortions to cases of serious risk of substantial injury to the woman, would healthy women be deterred from seeking abortions, and would abortion clinics be deterred from arranging them for such women? Such evidence as there is suggests that the pressure to seek and provide abortions in the present climate of opinion are such that nothing short of an expectation of punishment would deter anybody involved.
Is it then a waste of time to introduce amending or repealing legislation? By no means. The benefits to the pro-life movement are numerous and this is true whether a Bill succeeds or fails. In the first place a great deal of publicity is obtained for the arguments on both sides. This must always benefit the pro-life movement because the arguments for abortion are so shameful and illogical that they only gain acceptance with the public because they are trumpeted daily in the media without the counter-arguments being heard. Secondly, every attempt to change the law brings pressure on the Government. It enables us to remind them again that the present position is directly contrary to the interests of the people they claim to represent and whose welfare they claim to have at heart, and that every single abortion is contrary to clearly-stated words in the 'Conservative Manifesto 1983'. Thirdly, it reminds everyone that the voice of truth and compassions will not be silenced, and that the pro-life movement is alive and well and growing stronger. It is vital to our eventual victory that the public should hear the truth and know that there are still vast numbers of people who reject and abhor the injustice of abortion.
Should we then keep putting forward amending legislation with no real hope that, even it is enacted, it will achieve its objective? I do not think this is the right way to look at the question. I believe the correct conclusion is to recognise that legislation alone will not cure the evil or end the injustice, and that amending legislation must be accompanied with a change in attitude of the Government, of the civil servants in the Health departments, of the medical profession and of pregnant women. It is clear that the majority of current abortions are performed illegally merely on demand. If the police were encouraged to seek out criminals who perform these abortions, if the D.P.P. would prosecute them and if the juries would convict them, the number of abortions would quickly fall into a trickle without any change in the law.
