The Right of the Foetus and the Embryo under the UK Law - Essay Example

of the Work al Affiliation The Right of the Foetus and the Embryo under the UK Law Introduction Right to Life According to the UK law everyone’s right to life is protected by the law. That right should not be deprived unless in cases of execution done intentionally following a legal procession and a judgement following. This is done if the individual in question commits a crime that makes it important to terminate their lives by the rule of law. However, if death of a person succeeds an ensuing violence and the victim fighting for defence, the perpetrator’s death won’t be termed as murder and the person is not liable to face a murder charge in court. This right does not apply if the perpetrator is trying to escape justice and gets harmed in the process1. The UK law protects the life of the foetus by a number of laws which have been reviewed over time to accommodate the upcoming issues and trends in the health sector. International human rights law also works in relation to the laws of the different countries to determine the laws governing the right of the mother during prenatal care and ensuring that the birth of the child is done safe and the respective rights to life are followed2. There have been attempts to secure life to the foetus but the European convention has been hesitant with the invention of Article 2 of the Convention3. The European Court of Human Rights has also been on the way to solving a number of cases which deal with the rights of the unborn and the rights of the mother in relation to that of the embryo or foetus4. The History of the Abortion Law (UK) The Abortion law has come a long way to be what it is today. The first act in regard to the issue of abortion was made in 1861 in ‘The Offences against the Person Act 1861’5. This was an Act of Parliament. Section 58 under the Act made abortion a criminal offence which would be punishable by the perpetrator being imprisoned for a period ranging from three years to a life imprisonment sentence. This was to be followed even if the abortion was carried out for medical reasons6. This was a law that guarded the life of the foetus and it highly changed the society’s perception to abortion. By making abortion illegal even under medical advisory, majority of the abortions that were bound to happen were discouraged and hence guarding the lives of these foetuses. The first amendment to the law occurred in 1929. This was through ‘the Infant Life Preservation Act 1929’. This Act amended the previous law and it categorically stated that it would no longer be termed as a felony to commit abortion if the act was carried out in good faith for the sole life of preserving the life of the mother7. This law made it a felony to kill a child who was capable of being born alive and the time from conception enshrined to be the time the foetus was declared viable was set to be 28 weeks. After this time, abortion was not to take place unless it was advised for by a doctor and/or be seen that the continuance of the pregnancy would cause the termination of the life of the mother. The law also made it clear that that a doctor would perform an abortion legally if he/she was satisfied that the continuance of the pregnancy was liable to endanger the life of the expectant mother8. The Abortion Law Reform association was formed in 1936 by people who felt that the legislation of Abortion was unsatisfactory9. This association pressured on the law to be amended to stop the legislation of Abortion. The Bourne Case 1938 set the platform for the amending of the Act on abortion. In this case, a young woman was gang raped by a group of soldiers and she conceived. Dr. Bourne as came to be known of this case performed an abortion for the woman and he was later prosecuted. Dr. Bourne in his defence argued that it was important to terminate the pregnancy to restore the physical and mental health of the woman10. The doctor was not executed and this set a new era and turning point in the abortion law. The ruling of the Bourne case set a new platform where many women conducted abortions citing their mental health as the reason for doing it. The consent of a psychiatrist was all that they needed to perform the operation. However due to the fact that only the wealthy women could be able to get the consent of a psychiatrist, illegal abortions came to the rise. These involved illegal methods many of which turned tragic. By 1950s, about 40 women were dying annually from abortion related complications while many more were left injured. The Abortion Act was passed in 196711 and it is always viewed as one of the greatest achievements of the women’s movement pushing for the same. The Bill was passed to cater for the public health concerns that were being projected in relation to abortion. The Act gives the doctors the mandate to weigh the risks involved in allowing abortion considering the health of the mother and the child in relation to the continuance of the pregnancy. The law has faced much resistance but it has maintained its position. In 1990 an amendment was done to the 1967 Act by the Human fertilisation and Embryology Act12. The Act reduced the original time limit from 28 weeks as set initially to 24 weeks from which the foetus was to be termed viable and thereby restrict abortion unless under the doctor’s advice that keeping the pregnancy posed serious danger to the mother mentally and/or physically. There have been calls on both sides of the matter, some calling for legalization of abortion and others calling for the restriction of it13 The British Abortion Law Abortion is a very serious issue and the laws governing its legalization or the factors that should be considered before executing it have been a headache to legislations, UK being among them. The factors that need to be considered and be well informed before conducting an abortion include ethical considerations, moral and religious stands, case law, clinical practice and scientific coupled with medical evidence14. Scientific and medical developments have played a big role in determining the interpretation of the law when coming to conclusions on the fate of the abortion act and whether the foetus has as equal a right to live as the born child or person. The Abortion law 1990 was a development of the Abortion Act of 1967 and those led to the reappraisal of the threshold foetal viability and hence reduce the earlier 28 week limit to the current 24 week limit which then governs the time in which an abortion can be carried out in regard to the UK law and the Abortion Act15. The development and reappraisal on the Act states as follows;- (1)Subject to the provisions of this section, a person shall not be found guilty of an offence Under the law relating to abortion when the abortion is terminated by a registered medical practitioner and if two medical practitioners are of the opinion formed in good faith- this shall apply if- a. The pregnancy has not exceeded its 24th week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy was terminated, or injury to the physical or mental health of the pregnant woman or any existing children of her family16. b. the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman17; c. That the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated18; or d. That there is a substantial risk that if the pregnancy was allowed to continue, the child born would suffer from such physical or mental abnormalities as to be seriously handicapped19. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonable foreseeable environment20 . (3)Except as provided by subsection (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in21 the secretary of State for the purposes of his functions under the22 or the National Health Service (Scotland) Act 1978 or in a hospital vested in23 a primary care Trust or a National Health Service Trust or an NHS foundation trust or in a place approved for the purposes of this section by the secretary of state24. (3A)the power under subsection (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medicines as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places25. (4)Subsection (3) of this section, and so much of subsection (1) as relates to the opinion of two registered medical practitioners; shall not apply to the to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman26. The Rights of the Foetus as Guarded by the British Law In the above cited work adopted from the British Abortion law and the amendments that have been made in its regard, the Foetus has been guarded in the following ways’- First the Abortion should not be conducted if there is no medical practitioner present who is of the opinion that the continuance of the pregnancy will lead to permanent physical and/or mental injury to the mother carrying the pregnancy. This law rules out the termination of the pregnancy without the advice of a medical practitioner which if contravened can lead to trial in a court of law. Another section that works to guard the life of a Foetus is section (1) above which rules that an abortion should not be conducted after 24 weeks since conception. At twenty four weeks since conception the foetus is already formed and many of the organs are already functional. There have been calls to lower the abortion time limit/threshold to 22 weeks due to the increased survival of foetuses at the same gestation period27. Since 1990 the survival rates have been boosted by the improvement in technology and invention of new ways to enhance the survival of the foetus. By allowing abortion at that time it is very wrong as it is conceived that it can already survive on its own. This is a section in the British Law that has called for correction to lower the threshold time to have an abortion. The threshold time had been twenty Eight weeks before the amendment to the Act that lowered it to the current twenty four weeks. With time and successful amendment to the same Act, the time limit may be further reduced to twenty two weeks. The other controversial yet an important section in guarding the life of the foetus is the part that calls for the approval of two medical practitioners to verify whether the abortion is being conducted in good faith and whether the alleged complications that are supposed to cause grievous permanent physical or mental injury to the mother for the abortion to be allowed are genuine. The section has come under criticism since the same section categorically states that the operation should be conducted by a medical practitioner. One medical practitioner should be enough to verify whether the claims for the abortion are genuine. Many mothers have lost their lives in conducting illegal abortions which has called for the process to be legalized to make them access quality practitioners while conducting it. The practitioners can be able to establish whether it is safe to conduct abortion and go ahead to do it instead of making the mothers to be to access it and end up getting complications and later death. According to the UK law a pregnancy termination can be done if it can cause permanent mental injury to any of the other children born by the same mother. This section works to guard the rights of the already born child and ensure that their life is not complicated by the birth of the new child. The life of the foetus is guarded by ensuring that the reason to justify abortion must be verified by a medical practitioner in this case or a psychiatrist who can evaluate whether the alleged mental injury to the already born children is real. If it is real then the assent of two medical practitioners are enough to allow abortion to be conducted. The Act specifies well that any treatment to be administered after the conduction of an abortion should be done in a Hospital. This rule out the conduction of abortion outside the hospital premises, therefore discouraging it to be done outside that hospital. By ensuring that the person wanting to terminate the pregnancy seeks medication then the other sections will be applied and the medical practitioner will be able to establish whether the need to terminate the pregnancy is genuine. Many ladies have been opting to do it outside the hospital plan and so by adjusting the rule then if a person terminates a pregnancy then seeks medical attention due to complications arising from it, they would be bound to be held culpable for the act28. The Abortion Act being in the British Constitution is guarded and only a bill calling for its amendment can alter part(s) of it. This shows that the life of the unborn is well guarded29 and the foetus is entitled to the right to live unless proven without any doubt that the mother will have any permanent physical or mental injury due to the abortion. To safe guard the foetus life, an abortion can be conducted if the child to be born will be handicapped and prove that his/her life will be mentally handicapped or have serious physical abnormalities. The law also specifies the type of hospital that should be used in the conduction of an abortion. This rules out the conduction of abortions in hospitals with limited facilities which can pose health complications to the mother and lead to her death. Prominent Cases in Abortion and Rights in Marriage and their Ruling Paton vs. United Kingdom The applicant to this case was a citizen of the United Kingdom born in 1944 and he was a steel worker by profession30. The applicant was married to Joan Paton on 10th October 1974. Her wife disclosed to him on 12th May 1978 that she was pregnant and she wanted to have an abortion. He applied for an injunction to the high court to prevent his wife from having the abortion. The defendants to the case were Dr. Peter Fredrick Knight who was the manager of the Merseyside Nursing Home at which two doctors had given certificates to proceed with the abortion in accordance with section 1 of the Abortion Act 1967 and the applicant’s wife. The section above of the 1967 Act permits the termination of a pregnancy by a registered medical practitioner if two medical practitioners find that;- (a) the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated31; or (b) That there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped32. The certificate had been issued under paragraph (a) (injury to the physical or mental health of the pregnant woman)33. The above application was heard by Sir George Baker, the president of the Family Division of the High Court of Justice, sitting at Liverpool on 24th May 197834. At the hearing however, Dr. Knight was deleted from the case and in the side of defendants the Trustees and director of the British Pregnancy Advisory Service by which the Merseyside Nursing Home was owned and operated35. The Applicant first conceded that the 1967 Act had been complied to36. The question at hand was whether the father had any mandate to make consent before an abortion was conducted. The English law did not accommodate that in its Act. The right of the foetus to life also came into question as the threshold time limit had not been reached. After hearing, the president dismissed the application. He stated that an injunction could be granted only to restrain the infringement of a legal right; that in English law the foetus has no legal rights until it is born and it has a separate existence with its mother37, and that the father of a foetus, whether he is married or not to the mother, has no legal right to prevent the mother from having an abortion or to be consulted or informed about a proposed abortion, if the provisions of the 1967 Act have been complied with38. The abortion was carried out within hours of the dismissal of the application39. After the Abortion was carried out, complaints arose in the way the judgement was made as regards to the rights of the foetus to live. The applicant in the above case complained that the Abortion Act 1967 violates Articles 2 and/or 5, 6, 8 and 940. Rights of the Foetus as Depicted from the Case and Complaint Article 2(1), first sentence provides that ‘Everyone’s Right to Life shall be protected by Law’. This was in the convention while trying to establish whether the foetus has any legal right to life. This is however taken to apply after birth. The English law in this context failed to guard the life of the foetus and the Abortion Law 1967 also contravenes the above articles. Though the doctors at the Nursing home had given the reason for having the abortion as (injury to the physical or mental health of the pregnant woman) the opinion of the father needed to be considered taking that he was involved in the conception of the foetus. This case was one of the ones that led to the reduction of the time limit to have an abortion from 28 weeks to the current 24 weeks. VO vs. France The case indicated concerns an application brought by French national, Mrs Thi-Nho Vo41. She was born in 1967 and at the time of application lived in Bourg-en-Bresse (France)42. On 27th November 1991, she attended the Lyons General Hospital to have a medical examination scheduled. She was on her sixth month of her pregnancy. On the same day another woman, Mrs Thi Thanh Van Vo, was scheduled to have a coil removed from her reproductive system. There was a mix up caused by the fact that the two women shared their surnames and so the doctor ended up piercing Mrs. Vo’s Amniotic sac. This immediately made therapeutic abortion necessary. The doctor was however charged for causing unintentional injury, and the charge was being increased to one of unintentional homicide43. The doctor was acquitted on 3rd June 1996 by the Lyons Criminal Court. However due to the applicant’s filed appeal, on 13th March 1997. Lyons court of Appeal overturned the Criminal Court’s Judgement. The doctor was therefore convicted for unintentional homicide and a six month suspension sentence was imposed on him. A fine of 10 000 French Francs was also imposed on him44 . On 30th June 1999, the court of cassation reversed the court of Appeal’s Judgement45 holding that the facts of the case did not constitute the offence of involuntary homicide; it therefore refused to consider the foetus as a human being entitled to the protection of the criminal law. Due to this ruling the applicant complained that her unborn foetus failed to be considered as living and therefore was not guarded by the criminal law. She therefore maintained that France had an obligation to pass legislation making such acts a criminal offense46. R.H. Vs. Norway The case involves an applicant who claimed that in 1986 they were living with a young Norwegian woman. They were not married. She got pregnant on June 1986 and the applicant was the father. In August, the two visited Israel and they planted three trees there in their wish to have a child. Upon coming back, the mother changed and decided to have an abortion47. They visited a clinic together to get advised on the same as the applicant was against the move. The mother being so determined to have the abortion appeared before a board of two doctors on 1st September 1986 to ate her reasons48. The mother did not seem to have any medical reasons to have the abortion but rather had social concerns prompting her to do it49. The request was granted and the abortion was done on 5th September 1986. The applicant was not entitled in any of the proceedings leading to the abortion and his opinion was not consulted. He had applied for an injunction in order to prevent the abortion to take place. The application was rejected on 6th September 1986 by the City Court50. On 10th March, 1987 the applicant appealed to the decision in the Oslo City Court against the State represented by the Ministry of Social Affairs51. He claimed that the abortion had been carried contrary to Articles 2, 3, 8 and 9 of the convention in respect to the applicant and the foetus52. However the court did not find any law to having been violated. The applicant appealed again but this time his appeal was dismissed53. In the two cases the rights of the foetus were not addressed and that called for amendments into the Acts that govern the rights of the Foetus. The foetus should be defined as a living organism and in case of an abortion it should also be considered. The opinion of the father should also be considered in making the decision to conduct an abortion. Conclusion The cases referred to above-Paton vs. United Kingdom, Vo vs. France and R.H. vs. Norway show great lapses in guarding the rights of the foetus to life. In the case of Paton vs. UK the court ruled to her favour despite the fact that she did not have tangible proof that keeping the pregnancy would involve risk to her life, or cause injury to her physical or mental health or any existing children of her family, greater than if the pregnancy were terminated. There was also no proof that there was a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. She acquired a certificate to proceed with her abortion under paragraph (a) (injury to the physical or mental health of the pregnant woman). This set law was therefore not enough to safeguard the life of the unborn foetus. In Vo vs. France, the complainant complained that due to the reversion of the ruling that had imposed a suspension on the doctor who allegedly did the unintentional homicide and that led to the death of the unborn child, France criminal law had failed to guard the life of her unborn child and so that called for amendment of the present laws to ensure that life of the foetus was kept safe and the unborn would be considered an independent person with rights to life just as the mother. In the case B.H. vs. Norway, the mother did not seem to have any medical reasons to have the abortion but rather had social concerns prompting her to do it. However, the request was granted and the abortion was done on 5th September 1986. Here, the applicant (man) was not entitled in any of the proceedings leading to the abortion and his opinion was not consulted. The ruling was done in favour of the lady and the applicant’s appeal on the ruling was dismissed. This happened to be another case where the life of the unborn was not guarded and it showed that the current laws did not work to ensure that malicious decisions-say from the mother does not cause the termination of a pregnancy. This calls for stiffer laws that should be aimed at ensuring the life of the unborn is safe and independent from that of the mother. Bibliography -, Why Abortion?: Understanding why Women Choose to have an Abortion.(Family Planning Association Press, 2008). Abortion Act 1967 (UK) Health Services Act 1980 (UK) Human Fertilization and Embryology Act 1990 (UK) Keown J, Abortion, Doctors and the Law: Some Aspects of the Legal Regulation in England from 1803-1982 (n.p. 2002) Puppick G, Abortion and the European Convention on Human Rights, Irish Journal of Legal Studies, Vol 2. Helena Kennedy, Eve was framed. (Vintage Publisher, 1993) Paton Vs United Kingdom|1978|8416|78|QB276|High Court of Justice, Liverpool. Vo Vs France|1991|53924|00|Lyons Criminal Court, Lyon. B.H. Vs Norway|1986|17004|90|Oslo City Court, Oslo. HMSO Publications Staff, Abortion Statistics (OPCS Series AB #20): Legal Abortions Carried Out Under the 1967 Abortion Act in England and Wales, (HMSO Publisher, 1993). Sally Sheldon, Beyond Control: Medical Power and Abortion Law, (Pluto Press, 1997). Education for Choice-Supporting Young People’s Right to Informed choice on Abortion (n.d) Royal College of Obstetricians and Gynecologists: The Abortion Time Limit. < http://www.rcog.org.uk/what-we-do/campaigning-and-opinions/briefings-and-qas-/human-fertilisation-and-embryology-bill> The ‘Right to Life’ Commentary on Article 2 (Author not Listed) Center for Reproductive Rights (Part one) Convention for the Protection of Human Rights and Fundamental Freedoms (1950) as amended by protocol 11 (ETS No. 5) Read More