Unfortunately there was an important legal loophole which made it an offence to kill a child in utero and to kill a child who was capable of living without relying on its mother, but it was not an offence to kill a child during child birth. Nonetheless in 1929 the legal limit for an abortion was set at 28 weeks and a new concept was introduced through the Infant Life (Preservation) Act 1929, which closed the legal loophole and made it an offence to “destroy the life of a child capable of being born alive unless done in good faith to preserve the life of another.”[2]
In the case of R v Bourne[3] an imminent surgeon carried out an abortion on a young lady who had been raped and his reasons had been that he had done so as he believed that there was a risk of injury to the health of the mother, not just physically but also mentally. The courts acquitted him of any wrongdoing as the word 'unlawfully killing' was interpreted to include the prevention of serious injury, physically and mentally.
“As a result of the Bourne case, more and more abortions began to be practised in Britain in cases where the woman's physical or mental health was thought to be in danger.”[4] Society seemed to be more relaxed in their attitudes to abortion but as there was still no legislation which legalised abortion, many of them were done in covert operations. The current climate was such that something drastic had to be done, so the Abortion Act 1967 was introduced by Lord David Steel who stated that “the point of the act was not to encourage abortions but to codify reasons when it would be lawful to have an abortion, as there were too many backstreet abortions occurring which were leading to high mortality rates.”[5]
It is arguable that this significant change in the law reflects the commencing of the society and the legal bodies change in attitude towards the issue of abortion. Instead of condemning a pregnant woman for wanting to have an abortion, more of her needs were taken into account as opposed to previous circumstances where it was the needs of the foetus that was of utmost importance.
Abortion was then made legal for the first time in history, but there were certain factors which had to be satisfied and were found under s.1(1) of the Abortion Act 1967. In this section it stated that ‘the pregnancy must be prior to 24 weeks and if continued would involve greater risk than the pregnancy of injury to mental or physical injury to the pregnant woman or her children. That it is necessary to avoid risks of grave permanent injury to the pregnant woman. That it is necessary to avoid risk of the life of the pregnant woman. That if born the baby would suffer form physical or mental abnormalities.’
This was amended by virtue of the Human Fertilisation and Embryology Act 1990 which clarified that the four points from the Abortion Act 1967 had to be satisfied before the abortion would be deemed as legal. Although no specific time limit was introduced by the Act, it referred to the Infant Life (Preservation) Act 1929, which said that no unborn child could be killed who was 'capable of being born alive'. This was taken to be 24 weeks gestation for the first criteria, but the act allowed disabled babies to be aborted right up until the child was born.
Through the trials and tribulations of the abortion argument, "the English law took the
position that a persons life begins at birth. Before the birth the foetus is not a person, but
this does not mean that the unborn child is 'nothing'. In the eyes of the law the foetus is a
'unique organism as stated in the case of Attorney General.[6] However the law is willing to
protect the foetus at the expense of the rights of the mother to bodily integrity and self-
determination. This was illustrated in the case of Re F[7] where the courts held that the unborn
child could not be a ward of the court, as to enable an unborn child to be warded would give
the court inappropriate control over the mother’s life.”[8]
The Human Rights Act 1998 also appears to support the notion that a woman should be
allowed to have an abortion, this is under article 8 which states that a person is entitled to the
right to respect for private and family life.
The most prominent cases which included the use of the human rights articles include the case of Paton v UK[9] and the case of Vo v France[10] where “the plaintiff complained that the termination of her pregnancy as the result of clinical negligence had breached the European Convention on Human Rights 1950 Article 2. She had been mistaken for another patient with the same name and subjected to a clinical procedure to remove a coil. However the doctor was acquitted on the ground that, under French law, a foetus was not a living person but rather an extension of the mother's body. The courts refused to uphold the complaint as they felt that Article 2 did not confer a right to life that extended to a foetus and there was no relevant case law to determine when life began for the purposes of Article 2. Given the wide degree of variance on the point in the domestic law of Contracting States, determination of the commencement of life came within the margin of appreciation. Although she had chosen to make a criminal complaint, she could have sought damages in the administrative courts, which would have provided an appropriate remedy in French law that she was entitled to take on behalf of her unborn child.”
“The same approach was followed by the Court in its admissibility decision in Boso v Italy.[11] Once again the applicant was a father complaining that the domestic law on abortion contravened Article 2, but this time the age of the foetus had not been stated by the applicant. The Court reasoned exactly as in Paton v UK[12] and H v Norway[13] and found that, even assuming Article 2 applied, there had been no violation. The abortion had been carried out in accordance with Italian domestic law, which permitted abortions during the first 12 weeks of pregnancy if there was a risk to the woman's physical or mental health and thereafter if the woman's life was threatened or, alternatively, if the child to be born would suffer from a condition of such gravity as to endanger the woman's physical or mental health. Once again, the Court found that the domestic law on abortion struck a fair balance between ‘on the one hand, the need to ensure protection of the foetus and, on the other, the woman's interests. The Court thus concluded, that ‘the State had not gone beyond its discretion in such a sensitive area’.”[14]
The philosopher Judith Jarvis Thomson wrote that “a great deal turns for women on
whether abortion is or not available. If abortion rights are denied, then a constraint is imposed
on the women's freedoms to act in way that is of great importance to them, both for its own
sake and for the sake of their achievement of equality and if the constraint is implied on the
ground that the foetus has a right of life from the moment of conception, and then it is
imposed on a ground that neither reason nor the rest of morality requires women to accept, or
even to give any weight at all.[15]
Both the judgments made by the courts in the above cases and the statement made by
Judith Jarvis illustrates that society’s moral conscience has altered, in the past few decades, towards supporting the autonomy of the pregnant woman more over the rights of the foetus. However no legislation has been implemented yet which actually allows people to commit an abortion without any justifiable reasons. Abortions are still only legal if carried out by medical practitioners, therefore nurses or woman who carry out their own abortion are seen to have committed an offence. Under the Offences Against the Persons Act 1861, women who take the abortion pill are in effect carrying out their own abortion and therefore are committing an offence. Even though this has never been tested in court, the involvement of nurses during an abortion has been tested in the case of Royal College of Nursing v DHSS.[16]
“The issue of whether or not law should follow morality was hotly debated during the late 1950s, when there was public concern about what was perceived to be a decline in sexual morality. Central to this debate were the writings of the leading judge, Lord Devlin, who opposed the Wolfenden Report Findings, and Professor Hart who approved of them. The Wolfenden Committee recommended that homosexuality and prostitution should be legalised, with some restrictions. Their reasoning was based on the notion that some areas of behaviour had to be left to individual morality, rather than be supervised by the law.
Lord Devlin argued that some form of common morality, with basic agreement on good and evil, was necessary to keep society together. This being the case, the law had every right and in fact a duty to uphold that common morality. He compared contravention of public morality to treason, in the sense that it was something society had to protect itself against. He also argued that we can judge immorality by the standard of the right-minded person, who could perhaps be thought of as the person in the jury box. Opinions should be reached after informed and educated discussion of all relevant points of view and, if there is still debate, the majority view should prevail, as it does in the ordinary legislative process.
In addition Lord Devlin suggested that there was a set of basic principles which should be followed by the legislature and this included that, individuals should be allowed the maximum of freedom consistent with the integrity of society, and privacy should be respected as much as possible. He also stated that punishment should be reserved, for that which creates disgust among right minded people, and society has the right to eradicate any practice which is so abominable that its very presence is an offence. Lastly he said that the law should set down a minimum standard of morality and then society’s standards should be higher.
Professor Hart disagreed with this reasoning as he believed that it was ‘out of step’ with the social moral conscience of the time. Instead he argued that ‘using law to enforce moral values was unnecessary because society was able of containing many moral standpoints, without disintegrating, undesirable because it would freeze morality at a particular point; and morally unacceptable because it infringes the liberty of an individual. Hart also pointed out that the standard of the right minded person is a tenuous one, as people could make moral objections due to ignorance, prejudice or misunderstanding. He also objected strongly to the idea that the law should punish behaviour which does not harm others, but merely causes them distress or disgust by its very existence, even when conducted out of their sight unless there are good grounds for forbidding that particular behaviour e.g. murder or rape.”[17]
As contradictory as the views between Professor Hart and Lord Devlin were to each other, they still had a huge influence on the Warnock Committee who took both approaches of reasoning and combined them to incorporate in their reasoning and this then became integrated into the Human Fertilisation and Embryology Act 1990.
In conclusion it is arguable that prior to 1803 the rights and needs of the foetus were seen as more important. However in this modern society there is legislation which appears to illustrate that the English law does not view the foetus as having many, if any, rights at all in comparison to that of the pregnant woman’s autonomy. These legislations appear to construe a notion that “in the abortion debate, we should regard the woman as a person and not just a container for the foetus. Therefore there should be greater consideration of her rights and needs as well as those of the unborn.”[18] This statement can be perceived as a reflection of the moral conscience of today’s society, as abortion statistics show that “in England and Wales there were a total of 198,500 abortions in 2007 compared to 193,700 abortions in 2006.”[19] It is open to question whether these statistics reflect the tensions which arose from the Hart/Devlin debate as they appear to be in support of Lord Devlin’s argument that law and morality are concurrent, so the more permissive the law is about the issue of abortion, the more permissive the social moral conscience will also become.
BIBLIOGRAPHY
Books
Herring. J. Family law, 3rd ed. (Pearson Education Limited, England, 2007.)
Elliott, C, & Quinn. F, English Legal System, 8th ed. (Pearson Education Limited, England 2007)
Articles
Plomar. A, ‘A foetal right to life? The case of Vo v France’ Human Rights Law review, vol 1, no 1 pg. 320
Legislation
The Abortion Act 1803
The Abortion Act 1969
-s.1 (1)
The Human Fertilisation and Embryology Act 1990
The Human Rights Act 1998:
-Article 2
-Article 8
The Infant Preservation Act 1929
-s.1
-s.2
The Offences Against the Person Act 1837
The Offences Against the Person Act 1861
-s.58
-s.59
European Convention on Human Rights 1950
-Article 2
Cases
Royal College of Nursing v DHSS [1961] AC 800
Boso v Italy [2002] VII 411
Paton v UK [1981] 3 EHRR 408
H v Norway [1992] 73 DR 155.
Attorney General's reference (No 3 of 1994) [1998] AC 245
Re F (In Utero) [1988] FAM 122
Vo v France [2005] 40 EHRR 12
R v Bourne [1939] 1 K.B. 687
Other Written Sources
Other Sources
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsStatistics/DH_085508
http://www.bbc.co.uk/ethics/abortion/mother/for_1.shtml.
http://www.guardian.co.uk/uk/uk/2007/oct/24/politics.topstories3
[1] The Offences against the Person Act 1861 s.58, s.59
[2] The Infant Life and Preservation Act (1929) s.1, s.2
[3]R v Bourne [1939] 1 K.B. 687
[4]http://www.spuc.org.uk/students/abortion/history
[5]http://www.guardian.co.uk/uk/uk/2007/oct/24/politics.topstories3
[6]Attorney General's reference (No 3 of 1994) [1998] AC 245 at para 256
[7]Re F (In Utero) [1988] FAM 122
[8]J. Herring. Family law, 3rd ed. (Pearson Education Limited, England, 2007.)
p. 373
[9][1981] 3 EHRR 408
[10][2005] 40 EHRR 12
[11][2002] VII 411
[12][1981] 3 EHRR 408
[13][1992] 73 DR 155.
[14] A. Plomar, ‘A foetal right to life? The case of Vo v France’ Human Rights Law review, vol 1, no 1 pg. 320
[15]http://bbc.co.uk/ethics/abortion/mother/for_1.shtml.
[16][1961] AC 800
[17]C, Elliott, F, Quinn, English Legal System, 8th ed. (Pearson Education Limited) p. 600-602
[18]http://bbc.co.uk/ethics/abortion/mother/for_1.shtml.
[19]http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsStatistics/DH_085508
by
toffeeapple87 (student)
