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WHAT IS IT? WHOSE IT? RE-POSITIONING THE FETUS IN THE CONTEXT OF RESEARCH?

Published online by Cambridge University Press:  15 March 2011

Amel Alghrani  and
Margaret Brazier
Amel Alghrani
Affiliation:
Centre for Social Ethics and Policy, School of Law, University of Manchester.
Margaret Brazier
Affiliation:
Centre for Social Ethics and Policy, School of Law, University of Manchester.
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The Cambridge Law Journal , Volume 70 , Issue 1 , March 2011 , pp. 51 - 82
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 E. Jackson Medical Law: Text, Cases and Materials second edition (Oxford 2010), 642.

2 In England and Wales the Congenital Disabilities (Civil Liability) Act 1976, s.4 (2) (a) states that “born” means “born alive (the moment of a child's birth when it first has a life separate from its mother) …”

3 We should make it clear that our paper does not seek to analyse classical issues of property in the fetus or the baby and in asking whose the fetus is, our question is who has a legitimate claim to make decisions about the relevant entity. For those interested in more specific questions regarding ownership or control they may find the English case of Yearworth and Others v. North Bristol NHS Trust [2009] EWCA Civ 37; [2009] WLR (D) 34 of interest which discusses the question of “ownership” in the reproductive context; see also Harmon, S.H.E. and Laurie, G.T. “Yearworth and Others v North Bristol N.H.S. Trust: Property, Principles, Precedents and Paradigms” [2010] C.L.J. 476–493CrossRefGoogle Scholar.

4 Children Act 1989, s2(7) provides: “Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to effect the operation of any enactment which requires the consent of more than one person affecting the child.” Nonetheless judges have consistently held that where some major or irreversible procedure is proposed and/or the parents disagree about treatment of the child either parental consent is required from both parents or a ruling must be sought from the courts. So in Re J (Specific Issue Order: Muslim Upbringing and Circumcision) [2000] 1 F.L.R 571 Butler-Sloss P. spoke of “a small group of important cases made on behalf of a child” which “should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child”. Male circumcision was stated to be one example. Later in Re C (Welfare of Child: Immunisation) [2003] E.W.C.A Civ 1148 Thorpe L.J. held “that hotly contested issues of immunisation are to be added to that “small group of important decisions””.

5 Children Act 1989, s1(1): When a court determines any question with respect to – (a) the upbringing of a child; or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.

6 See P. Singer, Rethinking Life and Death (Oxford 1994), p. 217.

7 S. Coleman, The Ethics of Artificial Uteruses (Aldershot, 2004); S. Gelfand, (ed.) Ectogenesis: Artificial Womb Technology and the Future of Human Reproduction (Amsterdam, 2006); S. Wellin, “Reproductive Ectogenesis: The Third Era of Human Reproduction and Some Moral Consequences” (2004) 10 Science and Engineering Ethics 615–626. P. Singer and D. Wells, The Reproduction Revolution: New Ways of Making Babies (Oxford 1984); Smajdor, A. “The Moral Imperative for Ectogenesis” (2007) 16 Cambridge Quarterly of Healthcare Ethics 336–345CrossRefGoogle ScholarPubMed; Kaczor, C., “Could Artificial Wombs End the Abortion Debate” (2005) 5(2) National Catholic Bioethics Quarterly 283–301CrossRefGoogle ScholarPubMed; Aristarkhova, I. “Ectogenesis and Mother as Machine” (2005) 11 (3) Body & Society 43–59CrossRefGoogle Scholar; G. Corea, The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial Wombs (New York 1979).

8 In this paper we chose to focus our discussion on the fetus of or above 18 weeks gestation as this seemed to be an area where guidance on such research especially merited fresh consideration. It is also the most probable way that inroads into what ingredients are needed for ectogenesis are likely to be made, since research into complete ectogenesis which involves placing a fertilised embryo beyond fourteen days into an ectogenic device, designed to carry the resulting foetus to term would be a criminal activity. See Human Fertilisation and Embryology Act 1990, s. 3(3) which prohibits the use of embryos beyond the primitive streak. Section 3(4) provides: “For the purposes of subsection (3)(a) above, the primitive streak is to be taken to have appeared in an embryo not later than the end of the period of 14 days beginning with the day when the gametes are mixed, not counting any time during which the embryo is stored.”

9 Though see Woods, S. and Taylor, K. “Ethical and governance challenges in human fetal tissue research” (2008) 3 Clinical Ethics 14–19CrossRefGoogle Scholar.

10 Although note minor changes The Human Tissue Act Code of Practice –September 2009 makes to the Polkinghorne Report, some of which we discuss below.

11 Review of the Guidance on the Research Use of Fetuses and Fetal Material (Cmnd. 762) (Polkinghorne Committee Review) 1989 (hereafter “The Polkinghorne Report”).

12 The Polkinghorne Report, see note 11 above, para. 4.1.

13 When reference is made to the fetus as a “him” or “her” the language is intended to be gender neutral.

14 Paton v. B.P.A.S. [1979] Q.B. 276, Re F (In Utero) [1988] 2 All E.R. 193.

15 Paton v. B.P.A.S. [1979] Q.B. 276, [279].

16 C v. S [1987] 1 All E.R. 1230.

17 Re F (In Utero) [1988] 2 All E.R. 193 [200].

18 C v. S [1987] 1 All E.R. 1230 [1234].

19 St George's Healthcare NHS Trust v. S [1998] 3 All E.R. 673.

20 In the aforementioned cases of Paton v. B.P.A.S. [1979] Q.B. 276 and C v. S [1987] 1 All E.R. 1230, the putative fathers were unsuccessful in their attempts to save the unborn children.

21 Paton v B.P.A.S. [1979] 1 Q.B. 276, C v. S [1988] 1 Q.B. 135.

22 S v. McC; W v. W [1972] A.C. 24, Re T (Adult: Refusal of Medical Treatment) [1992] 4 All E.R. 649, CA, Re MB (An Adult: Medical Treatment) [1997] 2 F.C.R. 541, St George's Healthcare NHS Trust v. S [1999] Fam. 26, CA.

23 Re F (In Utero) [1988] 2 All E.R. 193. D v. Berkshire County Council [1987] 1 All E.R. 20.

24 Priaulx, N., “Rethinking Progenitive Conflict: Why Reproductive Autonomy Matters” (2008) 16(2) Medical Law Review 169–200CrossRefGoogle ScholarPubMed.

25 But see E. Wicks, “Terminating Life and Human Rights: The Fetus and the Neonate” in C. Erin and S. Ost (eds.), The Criminal Justice System and Health Care (Oxford 2006) 189–206, pp. 199–201.

26 See his interview with Sarah-Kate Templeton, “Doctors: let us kill disabled babies” The Sunday Times, 5 November 2006 (http://www.timesonline.co.uk/tol/news/uk/article625477.ece). It should be noted that the law permits abortion only in certain circumstances, see Abortion Act 1967 (as amended by Human Fertilisation and Embryology Act 1990), s. 1.

27 Gillon, R., “Is There A “New Ethics of Abortion'?” (2001) Journal of Medical Ethics 115, 118; E. Jackson, Medical Law Text and Materials (Oxford 2006), pp. 589–599Google Scholar.

28 See Scott, R. “The English fetus and the right to life” (2004) 11 European Journal of Health Law, 347–364CrossRefGoogle Scholar.

29 Report of the Committee of Enquiry into Human Fertilisation and Embryology (Warnock Committee Report), Cmnd. 9314, 1984, 71–72.

30 Human Fertilisation and Embryology Act 1990 (as amended by the Human Fertilisation and Embryology Act 2008), s. 3(3): A licence cannot authorise – (a) keeping or using an embryo after the appearance of the primitive streak. S. 3(4) provides: “For the purposes of subsection (3)(a) above, the primitive streak is to be taken to have appeared in an embryo not later than the end of the period of 14 days beginning with the day when the gametes are mixed, not counting any time during which the embryo is stored”.

31 The Polkinghorne Report, see note 11 above, para. 2.4.

32 Ibid., para. 3.1.

33 [1998] 3 All E.R. 673.

34 Ibid., 688.

35 S. Pattinson, Medical Law and Ethics, second edition (London 2009), p. 227.

36 (Application No. 53924/00) [2004] 2 F.C.R 577. See also O`Donovan, K., “Taking a Neutral Stance on the Legal Protection of the Fetus” (2006) 14 (1) Medical Law Review 115–123CrossRefGoogle Scholar.

37 At para. 85 and see R. Scott, op. cit. note 28 above, p. 353.

38 M. Brazier and E. Cave, Medicine Patients and the Law, 4th edition (London 2007), 372 – Lexis-Nexis at para. 14.15.

39 At para. 84 and see R. Scott op. cit. note 28, p. 352.

40 M. Brazier “‘Embryos’ ‘Rights’: Abortion and Research” in M Freeman Medicine, Ethics and The Law (Ed) Current Legal Problems (London 1988) 9–22, 14. For discussions on the ethics of experiments on embryos see also J. Harris, “Embryos & Hedgehogs” in A. Dyson and J. Harris (eds), Experiments on Embryos (London 1989), pp. 65–82; J. Harris, “Should We Experiment On Embryos” in R. Lee and D. Morgan (eds.), Birthrights: Law & Ethics at the Beginnings of Life (London 1989), pp. 85–96; R. Bennett and J. Harris, “The ethics of human embryo studies” in T. Lindsay, S. Lindsay, and D. Wilson, Molecular Genetics of Early Human Development, (Oxford 1997), pp. 51– 63. H. Kuhse, and P. Singer, “Individuals, humans and persons: The issue of moral status” in P. Singer, H. Kuhse, S. Buckle, K. Dawson and P. Kasimba (eds), Embryo Experimentation (Cambridge 1990), pp. 65–76.

41 B. Steinbock, Life Before Birth (New York 1992), p. 166.

42 R v. Gibson and R v. Sylveire [1990] Crim. L.R. 738; [1990] Q.B. 619; Bortolotti, L. and Harris, J., “Embryos and Eagles: Symbolic Value in Research and Reproduction” (2006) 15 (1) Cambridge Quarterly of Healthcare Ethics 22–34CrossRefGoogle ScholarPubMed.

43 For a discussion of the law see J. Keown. Abortion, Doctors and the Law (Cambridge 1988), Fortin, J., “Legal Protection of the Unborn Child” (1988) 51 M.L.R. 54–83CrossRefGoogle Scholar.

44 The ancient “born alive rule” first postulated by Coke in 1680 quoted: “if the childe be borne alive, and dieth of the potion, battery, or other cause, this is murder: for in law it is accounted a reasonable creature in rerum natura, when it is born alive”, Co Inst., Pt.III, ch 7, p. 50. Affirmed in AG's Reference (No 3 of 1994) [1996] 2 All E.R. 10 (C.A.); [1997] 3 W.L.R 421 (H.L.).

45 Note that whilst there is no general duty in English law to rescue a person in danger, so that a failure to rescue will produce no liability either in criminal law, or tort, this rule is qualified by a number of exceptions “where there is a duty to act”. Such a duty may arise where one who has voluntarily assumed responsibility to care for another who is dependent because of age, illness or other infirmity. In such circumstances, death caused by a negligent failing to intervene to protect them can result in a conviction for gross negligence manslaughter, see R v. Stone and Dobinson (1977) Q.B. 354) and R v. Gibbins & Proctor (1918) 13 Cr. App. Rep. 134. Thus the common law does in some circumstances impose a duty to rescue on the mother or father of a living child. We are grateful to the anonymous reviewer for their comments on this point.

46 The Polkinghorne Report, see note 11 above, para. 4.1.

47 The Human Tissue Act Code of Practice – Consent, Code 1 September 2009, paras. 157 ff.

48 The Polkinghorne Report, see note 11 above, para. 4.3.

49 Human Tissue Act Code of Practice – Consent, Code 1 September 2009, paras. 157 ff.

50 Ibid. note 11 above, para. 6.7.

51 (Application No. 53924/00) [2004] 2 F.C.R 577.

52 Ibid., para. 86.

53 Sherwin, S., “Review of Overall, Ethics and Human Reproduction” (1988) 13(2) Atlantis 125Google Scholar; C. Overall, “Biological Mothers and the disposition of the foetuses after Abortion” in C. Overall, Human Reproduction: Principles Practices Policies (Toronto 1993), p. 72.

54 Paton v. B.P.A.S. [1979] Q.B. 276 at p. 279.

55 Evans v. Amicus Health Care Ltd and Others [2004] 2 W.L.R. 713 (Fam.); [2004] W.L.R. 681 (C.A.); Evans v. United Kingdom [2006] 1 F.C.R. 585 (E.Ct.H.R.); [2007] E.H.R.C. 190 (E.Ct.H.R.).

56 Ibid.

57 See note 3 above.

58 See note 4 above.

59 P. Ramsey, The Ethics of Fetal Research (New Haven 1975), 89; Keown, J., “The Polkinghorne Report on Fetal Research; nice recommendations, shame about the reasoning” (1993) 19 Journal of Medical Ethics 114–120CrossRefGoogle ScholarPubMed, at p. 116.

60 J. Keown, ibid.

61 But note that John Harris who accords nil status to the fetus in utero agrees that having aborted the fetus the woman has no claim to determine whether or not the dead fetus may be used in research; J. Harris, The Value of Life (London 1985), p. 122. We are grateful to Sheelagh McGuinness for bringing this to our attention.

62 J. Keown, see note 59 above, pp. 114–120.

63 M. Lawson, “No Justice 4 Fathers” The Guardian, 20 January 2006; R. Little, “Fathers Still Need Justice” The Sunday Times, 22 January 2006; E. Mayne and M. Beckford, “Fathers for Justice Force the National Lottery Off Air” The Mail on Sunday, 21 May 2006.

64 See generally Collier, R., “A Hard Time to be a Father?: Reassessing the Relationship Between Law, Policy, and Family (Practices)” (2001) 28 Journal of Law and Society 520CrossRefGoogle Scholar; Collier, R., “Fathers 4 Justice, Law and the New Politics of Fatherhood” (2005) 17 (4) Child and Family Law Quarterly 511Google Scholar.

65 Although note the authors are not proposing that fathers should have the ability to intervene in a woman's decision to terminate a natural/in vivo pregnancy for this would constitute a violation of her bodily integrity. Rather, we argue that once the fetus is ex utero, alive or dead and once a woman's bodily integrity is no longer at stake, the male progenitor should have an equal say with regard to fetal research/treatment and paternal consent should also be sought.

66 Rhoden, N.K., “The New Neonatal Dilemma: Live Births from Late Abortions” (1983–4) 72 Geo.L.J 1451, 1465Google Scholar.

67 S. Romeo-Malanda, “Non-treatment of Severely Disabled Newborns and Criminal Liability Under Spanish Law” in C. Erin and S. Ost, op. Cit.., note 25 above, pp. 207–224.

68 Congenital Disabilities (Civil Liability) Act 1976, section 1(3) provides: “Subject to the following subsections, a person (here referred to as “the defendant”) is answerable to the child if he was liable in tort to the parent or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.”

69 Congenital Disabilities (Civil Liability) Act 1976, s. 3(5) provides: “Compensation is not payable in the child's case if the injury to the parent preceded the time of the child's conception and at that time either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the injury).”

70 St George's Hospital NHS Trust v. S [1998] 3 All E.R. 673.

71 The Congenital Disabilities (Civil Liability) Act 1976, s. 1(1) grants a mother express immunity from suit: “If a child is born disabled as the result of such an occurrence before its birth as is mentioned in subsection (2) below, and a person (other than the child's own mother) is under this section answerable to the child in respect of the occurrence, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child”. The only exception is where the injury was caused by the mother's negligent driving, see s. 2.

72 The Latin maxim “volenti non fit injuria” is commonly used to refer to a defence from tortious liability where the claimant “freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it”: Letang v. Ottawa Electric Rly. Co. [1926] A.C. 725 at 731 (citing Osborne v. London and North Western Rly. Co. (1888) 21 Q.B.D. 220.

73 [1998] 3 All E.R. 673.

74 Ibid., at p. 686.

75 AG's Reference (No. 3 of 1994) [1997] 3 All E.R. 936 (H.L.).

76 Ibid.

77 Ibid., at p. 942.

78 Children Act 1989, s. 3(1) defines “Parental Responsibility” as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” Parental responsibility includes the right to consent to medical treatment on behalf of a child, but the Children Act 1989 demands that parental responsibility must lawfully be exercised in the “child's best interests” (s. 1).

79 Cases such as immunisation and male circumcision require dual parental consent: Re B (a child) (immunisation) [2003] EWHC 1376, [2003] EWCA Civ 1148. Re J (Child's Religious Upbringing and Circumcision) [2000] 1 F.C.R. 307.

80 In relation to children born after 1 December 2003 (England and Wales), 15 April 2002 (Northern Ireland) or 4 May 2006 (Scotland), a child's biological parents automatically acquire parental responsibility if they were married at the time of the child's birth or at some time thereafter. Alternatively parental responsibility can be acquired if they are registered on the child's birth certificate (irrespective of whether the parents are married or not).

81 Thomson, J., “A Defense of Abortion” (1971) 1(1) Philosophy and Public Affairs 47, at pp. 48–49Google Scholar.

82 Costeloe, K., Hennessy, E., Gibson, A.T., Marlow, N., Wilkinson, A.R., “The EPICurestudy: outcomes to discharge from hospital for infants born at the threshold of viability” (2000) 106 Pediatrics 659–71CrossRefGoogle Scholar.

83 D.J. Field, J.S. Dorling, N. Bradley Manktelow, and E.S. Draper, “Survival of extremely premature babies in a geographically defined population: prospective cohort study of 1994–9 compared with 2000–5” (2008) BMJ Downloaded from bmj.com on 13 May 2008.

84 Ibid.

85 A point made by Simonstein, F., “Artificial reproduction technologies – all the way to the artificial womb?” (2006) Medicine, Health Care and Philosophy, pp. 1386–7423Google Scholar (Print), 1572–8633 (Online). Accessible at: http://www.springerlink.com/content/p5vlx7033r0w025h/fulltext.pdf.

86 J. Moorhead, “Against All Odds” Wednesday February 21, 2007, The Guardian. Accessible at <http://www.guardian.co.uk/society/2007/feb/21/health.lifeandhealth>

87 “Most-premature baby allowed home” Wednesday February 21 2007, Accessible at <http://news.bbc.co.uk/1/hi/world/americas/6384621.stm>

88 For more on ectogenesis see: Wellin, S., “Reproductive Ectogenesis: The third era of human reproduction and some moral consequences” (2004) 10 Science and Engineering Ethics, 615–626CrossRefGoogle Scholar. P. Singer and D. Wells, The Reproduction Revolution: new ways of making babies (Oxford 1984). S. Coleman, The Ethics of Artificial Uteruses (Aldershot 2004). S. Gelfand, note 7 above, ch. 2. Smajdor, A., “The Moral Imperative for Ectogenesis” (2007) 16 Cambridge Quarterly of Healthcare Ethics 336–345CrossRefGoogle ScholarPubMed. Kaczor, C., “Could Artificial Wombs End the Abortion Debate” (2005) 5(2) National Catholic Bioethics Quarterly 283–301CrossRefGoogle ScholarPubMed. Aristarkhova, I.“Ectogenesis and Mother as Machine” (2005) 11 (3) Body & Society 43–59CrossRefGoogle Scholar. G. Corea, The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial Wombs, (New York 1979).

89 Lupton, M. “The Role of the Artificial Uterus in Embryo Adoption and Neonatal Intensive Care” (1999) 18 Medical Law 613 at pp. 625–629Google ScholarPubMed.

90 The Polkinghorne Report, see note 11 above.

91 Statistics indicate that 10 mothers and 1000 babies die each year as a result of the effects of pre-eclampsia. See Department of Health. Why mothers die. Report on confidential enquiries into maternal deaths in the UK 1994–96. London: Stationery Office, 1999.

92 Nuffield Council on Bioethics “Critical Care Decisions in Foetal and Neonatal Medicine: Ethical Issues” (November 2006), para. 9.19.

93 See Royal College of Paediatrics “Child Health: Ethics Advisory Committee Guidelines for the ethical conduct of medical research involving children” (2000) 82 Archives of Disease in Childhood 177–82CrossRefGoogle Scholar.

94 Wyatt v. Portsmouth NHS Trust and another [2004] EWHC 2247; [2005] EWHC 117; [2005] EWHC 693 (Fam) Re L (Medical Treatment: Benefit)[2004] EWHC 2713 (Fam) Re C [1998] 1 F.C.R. 1.

95 SI 2004/1031. The Regulations implemented the EU Clinical Trials Directive (Clinical Trials Directive 2001/20 into UK law. See also Cave, E. “Seen But Not Heard? Children in Clinical Trials” (2010) 18(1) Medical Law Review 1–27CrossRefGoogle ScholarPubMed.

96 Surfactant trials arose in response to endeavours to treat respiratory distress syndrome (RDS) in premature babies and reduce neonatal morbidity. The lungs of premature babies were in some cases too immature to produce enough surfactant, a substance which lines the alveoli, the small air sacs at the end of the lungs” numerous branching airways. For more on clinical trials of surfactant treatment in neonates, see Halliday, H.L., “Recent Clinical Trials of Surfactant Treatment for Neonates” (2006) 89 Biol Neonate 323–329CrossRefGoogle ScholarPubMed. Hammoud, M., Al-Kazmi, N., Alshemmiri, M., Thalib, L., Ranjani, V.T., Devarajan, L.V., Elsori, H., “Randomized clinical trial comparing two natural surfactant preparations to treat respiratory distress syndrome.” (2004) 15 J Matern Fetal Neonatal Med 167–175CrossRefGoogle Scholar. Ainsworth, S.B., Beresford, M.W., Milligan, D.W., Shaw, N.J., Matthews, J.N., Fenton, A.C., Platt, M.P. Ward, “Pumactant and poractant alfa for treatment of respiratory distress syndrome in neonates born at 25–29 weeks' gestation: a randomised trial.” (2000) 355 Lancet 1387–1392CrossRefGoogle Scholar.

97 See note 4 above.

98 Section 1(1).

99 C v. S [1987] 1 All E.R. 1230.

100 M. Brazier and E. Cave, Medicine, Patients and the Law, op cit., note 38 above, p. 382.

101 [1991] 1 Q.B. 587.

102 Ibid., at p. 622.

103 C v. S [1987] 1 All E.R. 1230.

104 Royal College of Obstetricians and Gynaecologists, “Termination of Pregnancy for Fetal Abnormality in England, Wales and Scotland” (London 2010); Nuffield Council on Bioethics “Critical Care Decisions” see note 89 above, para. 4.14.

105 Nuffield Council on Bioethics “Critical Care Decisions” see note 89 above, para. 4.14.

106 G. Williams Textbook on Criminal Law, 1st edition, (London 1978), p. 263, footnote 8; Keown, J., “The Polkinghorne Report on Fetal Research; nice recommendations, shame about the reasoning” (1993) 19 Journal of Medical Ethics 114 at p. 115CrossRefGoogle ScholarPubMed.

107 The Polkinghorne Report, see note 11 above, paras. 2.4 and 3.2.

108 See S. McLean, “Women's Rights and Reproduction” in S.A.M. Mclean (ed.), Legal Issues in Human Reproduction (Aldershot 1989), pp. 213–232.

109 Ibid., at p. 220.

110 The Polkinghorne Report, see note 11 above, paras 2.4 and 3.2.

111 Offences Against the Person Act 1861, s. 58: “Every woman, being with child, who, with intent to procure her own miscarriage, shall administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.”

112 Abortion Act 1967 (as amended by Human Fertilisation and Embryology Act 1990), s 1 (1): “Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith – [(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) 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 handicapped.]”

113 The Polkinghorne Report, see note 11 above, para. 4.1.

114 (Our emphasis) The Human Tissue Act Code of Practice – Consent, Code 1 September 2009, paragraph 160. On valid consent see paragraphs 30–34.

115 J. Raskin and N. Mazor, “The Artificial Womb and Human Subject Research” in S. Gelfand (ed.), Ectogenesis, note 7 above, p. 177.

116 W. Gaylin and M. Lappe “Fetal Politics: The Debate on Experimenting with the Unborn” unpublished manuscript, as cited in P. Ramsey The Ethics of Fetal Research (New Haven 1975), p. 41.

117 P. Ramsey, ibid., p. 42.

118 Ibid., 44.

119 Ibid., 32.

120 H. Jonas “Philosophical Reflection on Human Experimentation” Ethical Aspects of Human Experimentation on Human Subjects, Daeldus, (spring 1969), 98: 241–3; reprinted in Philosophical Essays: From Ancient Creed to Technological Man (Englewood Cliffs, N.J: 1974), pp. 123–129; P. Ramsey, note 117 above, p. 35.

121 For evidence regarding the capacity for fetal pain see RCOG Fetal Awareness, Review of Research and Recommendations for Practice, March 2010, http://www.rcog.org.uk/files/rcog-corp/RCOGFetalAwarenessWPR0610.pdf; Lee, S.J., Ralston, H.J., Drey, E.A., Partridge, J.C., Rosen, M. A. “Fetal Pain A Systematic Multidisciplinary Review of the Evidence” (2005) 295(2) J.A.M.A. 947–954CrossRefGoogle Scholar. Benatar, D., and Benatar, M. “A pain in the fetus: toward ending confusion about fetal pain” (2001) 15 Bioethics 57–76CrossRefGoogle ScholarPubMed; Smith, R.P., Gitau, R., Glover, V., Fisk, N.M. “Pain and stress in the human fetus” (2000) 92 Eur. J. Obstet. Gynecol. Reprod. Biol. 161–165CrossRefGoogle ScholarPubMed.

122 Harris, J., “In Vitro Fertilisation: The Ethical Issues” (1983) 33 The Philosophical Quarterly 217–238CrossRefGoogle ScholarPubMed; R. Bennett and J. Harris, note 40 above, pp. 51– 63.

123 P. Ramsey, note 117 above, p. 43.

124 Ibid., 48.

125 Ibid., 35.

126 F. Simonstein, note 85 above.

127 In the present discussion we have limited ourselves to the fetus of 18 weeks and above, however it is clear that if ectogenic research continues to lower thresholds of viability and we get to a point where a 10 week fetus can be sustained ex utero in an ectogenic incubator it may be the case that we need a third category, besides fetus and baby to govern this entity with separately developed rules.

128 The Polkinghorne Report, see note 11 above, para. 3.