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The Fetus and the “Right to life”

Published online by Cambridge University Press:  16 January 2009

Glanville Williams
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Extract

The philosophical answer to Milton's problem is, like so many philosophical answers, a counter-question. What do you mean by human life? This could involve further probing of a kind that a pre-Darwinian like John Milton would fail to comprehend. Does he include Neanderthal man, for example, in “human life”, or does he want to start with Homo sapiens?

A resurrected Milton might protest that in writing Paradise Lost he was not concerned with problems of evolution (of which he had not previously heard). His question suggests that he was thinking of the “life” of a particular “human being”; but he knew so little of what we now call biology that he would probably have been as nonplussed by the biological answer to his problem as one given in terms of prehistory.

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Articles
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The Cambridge Law Journal , Volume 53 , Issue 1 , March 1994 , pp. 71 - 80
Copyright
Copyright © Cambridge Law Journal and Contributors 1994

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References

1 Tait [1990] 1 Q.B. 290 (a threat to a pregnant woman to kill her fetus is not a threat to kill a “person”); Hamilton v. Fife Health Board (1992) The Times, 28 January. The point took three days of argument to settle in Brady (Crown Court 1993), The Times, 7 July. In Canada the right to life conferred by the Charter of Human Rights has been held not to encompass the fetus: Borowski v. A-G of Canada [1987] 4 W.W.R. 385; cp. Tremblay v. Daigle [1989] 2 S.C.R. 530. Purely on terminology: the word is often spelt “foetus”, and is so spelt in statutes; but “fetus” is etymologically correct and is now coming to be preferred in medical writing ([1967] 1 B.M.J. 425; [1972] 2 Lancet 1123; [1981] 2 Lancet 1085; 3 Biochemistry Society Bulletin. December 1981: 288 B.M.J. 1605). The e is long. Medical parlance distinguishes between the embryo. up to about 8 weeks' gestation (by which time it is sufficiently developed to be unmistakably human) and the fetus which it them becomes; but the distinction has no legal significance, and legal writings do not generally adopt it. Both embryo and fetus are here denoted by the latter term.

2 See C. v. S. (judgment of Heilbron J. affirmed in the C.A.): [1988] O.B. 135: [1987] 1 All E.R. 1230; Rance v. Mid-Downs H.A. [1991] 1 O.B. 587. Whether the infant must be able to breath without mechanical assistance is left undecided. Dr. I.J. Keown, a vigorous opponent of efforts to reduce the scope of the abortion law, challenges C. v. S.. because in his view an unborn child can be murdered. One of his reasons is based on Coke's rule (see note 8 below), which contemplates that a child can be the subject of murder if it is born after it has quickened: quickening takes place well before the child is able to breathe: therefore, he concludes, breathing is unnecessary for live birth ((1988) 104 L.Q.R. 141). The reasoning is fallacious. Coke's rule required both (i) quickening and (ii) live birth: the fact that a child can quicken without being able to breathe does not dispense with the necessity for live birth. In Coke's time the legal definition of live birth was unsettled, and in addition he may well have been hazy about the obstetric facts. His requirement of quickening is no longer part of the law.

3 Girls as young as 12. pregnant by their fathers. were refused abortions. Special hoarding schools were opened for expectant mothers aged from 12 upwards. in order that they might continue with their lessons while looking after their babies. Women who had been raped. women deserted by their husbands, and overburdened mothers living in poverty with large families, also failed to get a medical abortion. One “liberal” hospital in London and one in Newcastle performed the operation comparatively freely, but the doctors concerned suffered faint opprobrium from people who should have known better (the courageous London doctor who operated within the law as laid down in Bourne [1939] 1 K.B. 687 was known as the “Gower Street abortionist”). and their example was not generally followed. Abortions could be readily bought in Harley Street: but in general the mass of women could only go to a “back-street abortionist”, wielding a knitting needle, syringe or stick of slippery elm. or to a skilled operator acting illegally for large fees. Some unwilling mothers-to-be used dangerous methods on themselves. A teenage girl who took quinine to produce a miscarriage became blind (letter by Dr. C. Brewer in The Times. 30 June 1965). Other women became paralysed for life or gravely impaired in health: some committed suicide. Although illegal abortions ran into thousands each year, convictions were comparatively few (less than a hundred a year). largely because women who had sought the help of an abortionist were unwilling to give him away. but partly also because the police themselves tended not to look upon abortion as a real crime. The only people who were effectively deterred by the law were the doctors, who alone could operate safely. The problem was common to all Christian countries that started with an unqualified prohibition of abortion.

4 Recalling a discussion of research on human embryos. Dame Mary Warnock declared. with some vehemence: “To say, as one speaker did. that there is no difference between experimentation at 14 days or 40 days or up to 40 years. that there is really no difference between an embryo and a fully-grown child, is an absolutely preposterously stupid thing to say”.

5 Human Fertilisation and Embryology Act 1990, s. 3(3)(a).

6 Malcolm Potts in [1983] 2 The Lancet 223. He went on to say: “To pursue a less emotive parallel from postnatal life, we would not in a democracy give the vote to a child of 6 months or withhold it until an individual is 60, but whether the franchise is given at 18, 20 or 30 is an arbitrary decision”.

7 The point is well made by Linda Clarke in Birthrights, ed. Robert Lee and D. Morgan, paperback edn. (1990), p. 166. Cp. Margaret Brazier, review of DrKeown's, Abortion, Doctors and the Law (1988) in (1989) 9 L.S. 217.Google Scholar

8 Open Door and Dublin Well Woman v. Ireland Eur. Court H.R.. Decision of 24 March 1992, Series A. no. 246-A.