“the unborn child is not regarded as a “person” directly protected by Art.2 of the Convention and that if the unborn do have a “right” to “life”, it is implicitly limited by the mother's rights and interests.”
The court’s alternative perspective regarding when an individual becomes a human being lies on the opposite end of the spectrum: that a person’s life and rights as an individual, as far as may definitively be assessed, begins at birth. In this case, two women with the same name went to a clinic, one who wanted an abortion, and the wrong woman received the operation. She claimed on the grounds of Article 2 of the European Convention for Human Rights, arguing that the doctor committed homicide through negligence. The European Court determined that this did not occur, because the foetus could not be considered a human being entitled to full rights under the European Convention for Human Rights, and therefore no homicide could have taken place. That is not to say that certain protections do not exist for the unborn child, but that the existing rights of the mother naturally outweigh (at least up to a point) the rights of an unborn life, and the Court found it undesirable to outline exactly when an unborn child becomes a person, allowing individual jurisdictions to allow their limits as seen fit, so far as they follow the requirements under the ECHR.
Another perspective is that of most pro-choice promoters, who believe that human life, and one’s existence as a ‘person,’ begins later in pre-natal development. However, exactly at what point an individuals’ ‘personhood’ develops varies. Some contend that a person’s life begins when the foetus’ heart starts to beat, which occurs at around 4 weeks development. Others argue that it occurs when the initial, though low-level, brain waves occur, around 6 weeks. Still more contend that a human being becomes a person when it actually ‘looks like’ a person, at around 3 months gestation. The most popular time at which pro-choice individuals believe a person’s life begins, as far as human rights and the law should be concerned, is at 24 weeks, or when the foetus becomes viable. In an interview by Newsweek magazine, respected medical ethicist Bonnie Steinbock said:
"If we’re talking about life in the biological sense, eggs are alive, sperm are alive. Cancer tumors are alive. For me, what matters is this: When does it have the moral status of a human being? When does it have some kind of awareness of its surroundings? When it can feel pain, for example, because that’s one of the most brute kinds of awareness there could be. And that happens, interestingly enough, just around the time of viability. It certainly doesn’t happen with an embryo."
It is at this stage that the unborn child, likely with medical support, may sustain its own life independent of the mother, and almost certainly is capable of perception of various sensations. In the landmark case of Roe v Wade in 1973, a decision by the Supreme Court in the United States that a woman should have the right to choose, for whatever reason, whether or not to have an abortion up to the point of viability. As far as my personal views are concerned, I agree with the judgement in Roe, and believe that if the law in the UK were to be modified any further that it ought to incorporate the decision in this case. In my opinion, as far as the law and application of human rights are concerned, I believe this point in gestation is about accurate regarding when a person’s individuality begins and whether or not a woman should be entitled to an abortion. After this point I find it difficult to support the need for abortion outside of extraneous circumstances that have already been outlined in the 1967 Act.
A very interesting perspective exists regarding when life as a ‘person’ begins with reference to the electrical output of the central nervous system. That is to say, human death, at least in the United States, is agreed to occur in many states at the point at which there is no longer electrical activity in the brain (or the brain has ‘flat-lined’). In such an instance, even though the body may be sustained through various machines, the ‘person’ in all his conscious and meaningful being no longer exists, and is considered dead. It seems logical to say that if life as a person ends when electricity has stopped flowing through the brain, then life as a person must begin when this same electrical functioning occurs for the first time, around 22 weeks gestation. It is arguable that at this point, because higher levels of functioning have begun to develop, the foetus may be capable of greater sensory perception and even possibly feeling, and therefore it is possible that the deadline the Abortion Act sets may be a couple of weeks too late. I would therefore argue that life as a person, for the purposes of the legal application of human rights, ought to be considered at the moment of gestation during which the brain’s higher functioning begins to work: 22 weeks. After this point I believe the law should remain extremely stringent regarding the rights of the unborn child, as it is capable, particularly from 24 weeks onwards, of sustaining a viable existence independent of the mother. To abort a foetus at this point may very much be likened to infanticide, or the killing of a child as soon as it is free of its mother’s womb. This point is supported by the Infant Life (Preservation) Act 1929, which states under s.1:
“(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:
Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.
(2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.”
This Act, however, prematurely (so to speak) extends the age of viability to 28 weeks, a mistake that is merely a consequence of the lack of knowledge of the time, and with very simple modification would otherwise, in my opinion, be a well minded piece of legislation. While I respect the right of the mother, along with a medical practitioner’s guidance, to abort a child after 24 weeks that will be born with severe handicaps, as is outlined in s.1(1)(d) of the 1967 Act, I contend that such an occurrence should be with the most acute judgment in scenarios for which the child’s non-existence can logically result in greater good than if the child were forced to live, both for the infant, mother, and family. In so many words, the rights of a child just born should not be significantly different to those rights of a foetus capable of surviving birth (through whatever means that entails), and this ought to be considered when determining to whom human rights belong.
Now I would like to discuss what is quite possibly the more complex issue of euthanasia; more complex because there is no contestation that a person does indeed exist, and that his rights as such are not contestable when it comes to its conclusion. Euthanasia is defined by the Encarta Encyclopaedia as the: “practice of mercifully ending a person’s life in order to release the person from an incurable disease, intolerable suffering, or undignified death.” Though the definition makes the concept appear amicable enough, a great deal of ethical and legal debate revolves around this issue. It is important to note that euthanasia is technically different to assisted suicide, in that the latter involves an individual making a decision that he or she wishes to die and enlists the help of another, typically a physician, to do so. In most western countries today “assisted suicide” is an illegal act, and this is the position in the UK at present. Suicide itself, however, is not a criminal offence. There are few circumstances in which the government and the courts are prepared to allow an individual’s life to come to an end, particularly when that individual is in the care of medical professionals. Such was the case in Airedale N.H.S. Trust v Bland, in which a teenage boy had suffered injuries that left him in a persistent vegetative state for three years, from which a number of medical professionals determined he would not recover. His family brought their case to court in the hope that they would concede in allowing them to let their son pass on by no longer providing medical support, that is to cut off his breathing apparatus and discontinue tube feeding. The question here is whether this constitutes an infringement of Bland’s human rights, particularly under Article 2 for the right to live. Sir Thomas Bingham M.R. referenced a conclusion drawn by Lord Devlin when he said:
“It is murder deliberately to hasten death by however short a period of time. "No doctor, nor any man, no more in the case of the dying than of the healthy, has the right deliberately to cut the thread of life:" Reg. v. Adams (unreported), 8 April 1957.
In most instances thus far regarding euthanasia the court has found against its practice because it infringes upon the individual’s right to life as determined by the ECHR. However, in the case of Bland it was determined by the House of Lords that there was no longer a duty to provide medical treatment if doing so was no longer to the benefit of the patient, and that therefore the principle of the sanctity of life would be upheld (in a way because of the fact that treatment would no longer persist). It is clear that those officials responsible for the decisions made regarding whether or not an individual should continue to receive treatment lie on both sides of the fence. So who is right? Should people take on the responsibility of effectively ending an individual’s life, whether that means through discontinued treatment or direct interference? There may be no possible way to determine who is on the moral high ground, and that instead each individual case must be analysed and decisions must be tailored around the facts and the individual in question. A point made by Butler-Sloss L.J. at the end of his judgement in Bland echoes this theory when he states:
“…have been persuaded by the amicus that in a decision-making process of such gravity as whether to continue treating a P.V.S. patient, the intervention of the High Court is a proper safeguard. I respectfully agree with the formulation of the procedures proposed by the President and that, for the time being at least, each application to discontinue treatment should be made to the High Court. The rapid advances of medical technology create problems which may require the intervention of the courts from time to time. Such intervention may also reassure public concern.”
At the start of this essay I discussed the confusion over when life as a person begins, it is now apparent that, as far as human rights are concerned, it is questionable also as to how and when life should end. Does an individual diagnosed with PVS possess those human qualities that made him a person in the first place any longer? Does the biological mass of body left behind, usually sustained by machines, constitute a full human being? It is apparent that in circumstances for which the relatives for such an individual, or even his medical team, have taken upon themselves to go to court in order to prevent further treatment that the government is prepared to accept that it is in the individual’s best interests, which may be the case for many reasons. However, the courts in these scenarios have attempted to make it clear that in doing so there is no breach of the existing law against assisted suicide through various word choices and philosophical waxing. This begs yet another question: does omitting medical treatment (which the court claims is not illegal when done in the best interests of the patient) differ greatly from the action of ‘inflicting’ death through merciful mechanisms? When the patient is in a position to die regardless, particularly when medical treatment is stopped or when the individual would have committed suicide but is physically incapable of doing it for himself, does omission and action truly make that much difference? According to the law as it stands it does, particularly because acting in such away as to accelerate death is considered to be an act of murder at best; why is this not the case in places like Belgium and Switzerland, where euthanasia has been legalized and the amount of assisted deaths has not fallen down a ‘slippery slope’ as many euthanasia protestors fear? Ronald Dworkin, as well as the House of Lords, approached the issue of a person’s right to death from a three-fold perspective: self-determination (or autonomy), best interests, and sanctity of life. Hoffman L.J. recognises this in his judgement in the House of Lords:
“Thus it seems to me that we are faced with conflicting ethical principles. On the one hand, Anthony Bland is alive and the principle of the sanctity of life says that we should not deliberately allow him to die. On the other hand, Anthony Bland is an individual human being and the principle of self-determination says he should be allowed to choose for himself and that, if he is unable to express his choice, we should try our honest best to do what we think he would have chosen.”
The three aforementioned points of the morality triangle are difficult to place in order of relevance when determining the fate of an individual’s existence as a human being. However, if and when we are forced to choose I contend that the method that best supports a person’s human rights, particularly as set out in the ECHR, is that method which supports first autonomy, then best interests, and then sanctity of life. That is not to say that any one of these principles ought to be entirely ignored for the sake of another. However, it is arguable that in order to ensure that a person’s human rights are upheld, whether that person is no longer in a competent, conscious state or not, it is necessary to attempt to determine what that individual’s personal preferences regarding treatment and life’s end may have been or are. When unknown, this may be done by determining, through relatives and friends, the type of personality the individual had when competent, any religious beliefs, and also what would be in the person’s best interest (therefore in a way best interest may be combined with autonomy when necessary).
“In the present case, the House is faced with a choice between an absolutist view of the sanctity of human life leading to the conclusion that the withdrawal of care and treatment and the resulting death amount to culpable homicide, and the view that the patient has interests or rights in his personal privacy, bodily integrity and human dignity which justify such withdrawal by a doctor acting within legally and medically prescribed limits. There is no moral and ethical neutral position to enable the House (whether expressly or impliedly) to abstain from making this choice.”
In support of this view, it may be contentious but judicious that individuals who wish their life to end and are incapable of accomplishing this end on their own ought to be supported in their choice, even if that means requiring assistance to do so. Surely allowing the legalisation, (with much restriction and caution) of some forms of euthanasia, particularly when it is in the best interest and competent wishes of an individual, makes the most sense in these cases? Otherwise such individuals may have to take much more painful and severe routes in order to achieve their desired end, such as self-starvation. This point is supported by the case of Pretty, where a woman suffering from motor neurone disease wished to end her life but was incapable of doing so without assistance, and therefore wished to have her husband Brian complete the act on her behalf. The courts refused, stating that to do so would be assisted suicide, which according to English law is extremely close to murder, and that her husband would be prosecuted. It was argued in this case that Article 2 under the ECHR supported sanctity of life, and that self-determination was a non-point where human intervention with a person’s life is concerned. Surely this contradicts the principles set out in Article 9, which allows for freedom of thought, conscience, and religion, and allows for the practice of an individual’s belief. The courts thus far have had varying decisions regarding this subject matter, some more in favour of autonomy of the individual, and others who support sanctity of life above all else. This is a matter for both the public and the government to consider as the capability of the medical realm to extend life beyond its natural means continues to evolve.
The statement ‘human rights are based on human beings’ sparks debates at either end of the spectrum of life. The questions that arise regarding when life as a person begins and when it potentially ends are not easily answered, and I believe do not necessarily require a uniform answer for all to comply by. I contend that euthanasia ought to be made available for those who wish to end their lives due to serious circumstances and as a last resort, and that the law can be structured in such a way that the sanctity of life is still protected. Also, the potential ‘slippery slope’ and ‘miracle recovery’ activists, if not appeased, may be satisfied in knowing that their personal autonomy regarding this matter will not be infringed should they themselves encounter such an outcome. The government is not consistent across the span of law regarding sanctity of life and self-determination, as is demonstrated by the case of Re MB where a woman is capable of choosing not to have a caesarean section even though this would likely result in the loss of the child. The same case also demonstrates the complexity of the abortion issue as to when the life of an unborn child may be considered to have human rights, particularly under Article 2. Again, I contend that this is an issue for individuals to decide for themselves, but that for the most part the government is on the right track. However, the case above illustrates that our courts and Parliament are slightly hypocritical regarding the sanctity of life and woman’s autonomy, and that such discrepancies ought to be righted.
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