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The Rule of Law, Liberalism and Foetal Rights.

‘The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country’

Paton v. British Pregnancy Advisory Service[1]

  • Introduction

The rights of the foetus in relation to it’s mother and society is a conflict which transcends societies and time. The greatest names of antiquity have all had an opinion on the issue such as Aristophanes, Plato, Aristotle, Herodotus, Thucydides, Seneca, Euripides and many more[2]. The myriad of intersecting concerns that form part of the foetal right to life debate speak not only on our attitudes towards the foetus per se but our attitudes towards sexuality, individual human integrity and how we define humanity as well. The controversy that has subsisted since Christian and Roman attitudes clashed over this issue[3] continues into the modern day. Ever since the 22nd January 1973[4] the U.S. has struggled to deal with how the law should regulate such a difficult issue, the position is far from settled; on the 25th February 2006 the South Dakota Senate voted in favour of a bill to ban almost all abortions in the State[5] and effectively passed the bill.

As a legal scholar the considerations in a debate on Abortion and the rights of the foetus are distinct from the simple pro-life / pro-choice stances because we must take into account wider theories on the governance of people and importantly what is concerned with the ‘Rule of Law[6]. With regard to the latter there is an important distinction that when understood can change the perception of our role as legal scholars. This was touched upon recently in a speech by Lord Goldsmith to the London School of Economics[7]:

the rule of law is that it is not simply about rule by law. Such a proposition would be satisfied whatever the law and however unfair, unjust or contrary to fundamental principles, provided only that it was applied to all. Instead it seems to me clear that the rule of law comprehends some statement of values which are universal and ought to be respected as the basis of a free society[8]

Interestingly Lord Goldsmith was happy to include the right to life as a fundamental part of the rule of law which he described as ‘non-negotiable[9]. Except according to most western jurisdictions it is negotiable in respect of the foetus, as Sir George Baker P. stated in Paton, above. As legal scholars we have to understand that laws regarding the rights of a foetus go to the heart of the legal system because of the difficulties it presents for the rule of law. The problems of the abortion debate for legal scholars can often dissolve into an argument of morals[10], however, as I will attempt to outline in this work, the role of legal scholars is distinct in this debate as it is about the translation of difficult moral problems into authoritative normative propositions in the form of legal rules. We will start by looking at this important jurisprudential issue and move onto consider the approach that has been taken in England and in other jurisdictions. The focus will be to look at how the law should deal with the right to life of a foetus and the surrounding moral controversy.

  • The Rule of Law, Liberalism and Foetal Rights.

This work doesn’t intend to enter into the vagaries of the debate surrounding what exactly is constituted by the nebulous concept of the rule of law. However, a brief understanding of the evolution of the rule of the law will immensely aid the structure of the legal debate surrounding foetal rights. The Rule of Law in it’s original conception had no requirements regarding the moral content; for its progenitors such as Plato and Aristotle the main idea was that the rule of law was preferable to the rule of man because it removed the ‘element of the beast[11]. In other words the unpredictability of government by man could lead to the potential degradation of society however the concept has mutated over time and the way it was used by Lord Goldsmith, above, is part of a more contemporary approach to the Rule of Law that points to what Fuller describes as it’s ‘inner morality[12].

The major criticism of legal positivism in the mid-20th century was that it left no place for morals in law. The writings of prominent positivists such as Austin, Kelsen, Hart and Raz[13] all emphasised the divide between law and morals; a legal system was such regardless of whether it adhered to even the most basic of morals or not. In the mid-20th century numerous academics criticised positivism largely because in effect their system meant that the atrocities carried out by the Nazi party in Germany could be classified as legal. The Rule of Law for writers such as Finnis[14] and Fuller thus became a way of re-moralising the law.

However, the basis of this morality is far from clear as the blatant exception to Lord Goldsmith’s right to life content of the rule of law exemplifies. If we take even the most basic moral principle such as a right to life there are numerous exceptions[15]. These exceptions undoubtedly raise a massive degree of controversy in society and the best example of this is Abortion. Frederick Schauer argued that even where a society could agree on the content of it’s moral principles the law would still be unable to reflect these because rules produced ‘by human beings of finite reasoning & informational capacities & that are meant to improve the moral condition of human beings of finite reasoning and Informational capacities will always fail to capture precisely the requirements of morality[16]. How much worse where the society is not in agreement? This is obviously the case when we, realistically, re-characterise the debate over foetal rights as a variety of positions on a continuum between hypothetical extremes of pro-life and pro-choice[17]. The major problem with ‘moralising’ law is that law claims to be the ‘neutral, non subjectivist resolution of value disagreements and social conflict[18] however by forcing morals into the conception of law it detracts from that neutrality. The contextual nature of a moral problem such as abortion inevitably leads to arbiters of law making subjective judgements which detract from the hallowed principle of neutrality. We will look at the internal problems of certain stances later on in this work but for now the fact that different stances can be taken is a difficulty in itself.

The second major problem for the legal scholar is related to the unique conditions of the foetus. The rule of law is highly influenced by the principles of liberalism because it deals with how law can achieve the liberal aim of securing the autonomy of individual citizens to ‘pursue our own good in our own way[19]. In particular Hayek stated that the rule of law was specifically in place so as to define ‘legal liberty[20]. The identification of the rule of law as essentially liberal would undoubtedly be a mistake, in fact the identification of the rule of law as essentially anything would be a mistake, however in many discourses it is treated as serving liberal purposes. The regulation by the state of abortion is part of the law where the tension and inter-play of liberalism and paternalism is extremely prominent. Law in its regulation of domestic relationships currently reflects the dichotomies of liberalism and paternalism. In a sense all family law is paternalistic to a degree and especially so when it comes to the welfare of children. The Children Act 1989 enshrines the welfare principle in the regulation of a child’s living arrangements, the Adoption Act 1967 allows it to be a consideration and it has been a part of our law since 1920. However the laws paternalistic instincts as regards children wander into somewhat of a moral hiatus when it comes to the protection and regulation of an unborn child.

The temptation here is to argue that paternalism can be justified when the rights being protected are as basic as life[21]. However, the debate surrounding the foetus’ right to life is bound up with the maternal-foetal conflict which transcends the Abortion debate and widens it up to issues such as mothers who abuse drugs[22] or refuse treatment[23] with potentially fatal or harmful consequences for their foetus. Thus when we begin to take a more holistic approach to the foetal rights issue the claims of liberalism become to a large degree a major consideration. This is a subset of a much larger jurisprudential argument that Ronald Dworkin outlined long ago:

No doubt most Americans and Englishmen think that homosexuality, prostitution and the publication of pornography are immoral. What part should this play in the decision whether to make them criminal?[24]

Dworkin also explicitly laid out the problem, which exists in a microcosm in the foetal-rights issue, that enforcement of morals can be problematic because it is ‘inconsistent with our traditions of individual liberty, and our knowledge that the morals of even the largest mob cannot come warranted for truth[25]. If this appears to be an abstract jurisprudential concept which has no link to actual legal rules then one only has to look at the vast number of Obiter Dicta remarks in cases on the refusal of a mother to receive treatment such as Lord Reid in S v. S, W v. Official Solicitor:

English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear not only by coups d’etat but by gradual erosion; and often it is the first step that counts[26]

The ideal of personal autonomy and individual liberty to pursue your own happiness is embedded in English law and to a large degree the Rule of Law and to attempt to divorce protection of the unborn from these more abstract concerns would undermine any debate of the issues involved. The heralding of an ultimate principle of liberalism is unfeasible, in modern society we accept that there are many impositions on our freedom, the solution may well be found in the work of Lord Devlin below and in many respects this is the way I will approach the remainder of this work.

Lord Devlin felt that ‘the suppression of vice is as much the law's business as the suppression of subversive activities[27] whereas Hart and others that succeeded him felt that there had to be a degree of harm, the famous ‘harm principle’, before the law was justified in intervening. In order not to foreclose the issue at such an early juncture we will accept Lord Devlin’s arguments because it represents a more expansive scope for debate on the foetal rights issue. Lord Devlin believed that in society there was ‘a fundamental agreement about good and evil[28] which legitimised law in an ancient manner. The common law of the UK would appear to retain just such a power:

I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.[29]

This is not a work that wishes to enter deeply into the vagaries of the Hart-Devlin Debate but it’s pertinence when combined with the above observations on the rule of law and morality cannot fail to be seen. The Rule of Law requires that a legal system exhibit a de minimis morality otherwise it wouldn’t justify the term legal and that sensitivity to morals is complicated by the competition of principles of liberalism and whether we ought to enforce morals at all. The law’s approach to Abortion and the other issues concerning the rights of the unborn is interesting in this country; however it is far from an ideal system when compared to other jurisdictions. When we begin to investigate the substantive approach of law to certain issues then we cannot fail to understand that in advocating change or in critiquing the existent law we must have reference to the jurisprudential arguments that surround the implementation of moral problems in law. The approach to law and morals is a complex one, in some respects law ought to reflect morals and prevent the social disintegration that Devlin envisaged; on the other hand it also plays a role in instantiating and establishing morals. A good example of the latter is the issue of race where through the implementation of anti-discrimination legislation was able to change the perspectives of many in the U.S.

  • Further Caveats to discussion of Foetal Rights.

There are a number of further caveats that we have to be aware of when discussing the whole issue of whether the foetus has any rights including a right to life. The first is that more often than not any debate on the right to life centres on Abortion but this is a naïve approach. If we accept that law has an interest in governing the foetus to any extent at all then it is negligent to foreclose the issue to merely Abortion. There is a vast tract of case law on women who have refused a caesarean section because of potentially minor reasons such as a phobia of needles[30], a desire for a natural birth[31] or simply an extreme aversion to the procedure[32]. We also need to consider the degree to which we will require supererogatory duties of a mother regarding her behaviour whilst the foetus is in utero. We have little case law on this issue but in D v. Berkshire County Council[33] it held that pre-natal behaviour can be a consideration in making a care order. The issue of foetal rights cannot be looked at in isolation but has to be understood as one side of the maternal-foetal conflict. In analysing the substantive law we will do an inter-jurisdictional comparative work in assessing the various approaches to the maternal-foetal conflict.

The second caveat is related to the above one in that whilst undoubtedly the maternal-foetal conflict is a holistic problem encompassing a number of problematic situations this is not often the way that the law approaches the issue. The law in most jurisdictions deals with the inter-connected issues as separate, many view Abortion as the only area in which the law is concerned with the rights of the foetus. In analysing the role of law on the issue foetal rights it is clear that no modern jurisdiction has implemented a systematic system of rights for a foetus. It may be argued that perhaps Article 2 of the European Convention of Human Rights, in force through the Human Rights Act 1998, already provides for this and that it would merely require some expansive judicial interpretation. However, given the potential impact on various statutes and general judicial attitudes of deference to the legislature this seems highly unlikely[34]. We will therefore attempt to consider this caveat when we analyse the various incidence of the maternal-foetal conflict.

In the following three sections we will attempt to combine the observations of the foregoing sections into our analysis of the issues. The issues discussed hereinafter are not claimed to be exhaustive but they’re the most commonly mentioned scenarios in which the interests of the mother and foetus can come into opposition. The effective resolution of disputes is a major function of the law and it is in these scenarios that it is most likely to have a vested interest.

  • Abortion

Undoubtedly one of the most controversial areas of the maternal-foetal conflict is that of Abortion. In recent years the issue has gained a considerable degree of legal and philosophical attention because of the advancement of medical techniques and increasing awareness regarding the biology and anatomy of the foetus[35]. These include concerns over the medical technique of Intact Dilation and Extraction, or as it is colloquially known partial-birth abortion, which has been described as ‘a terrible form of violence [which] has been directed against children who are inches from birth, while the law looked the other way[36]. There have been concerns over prenatal screening and diagnosis which is increasingly able to detect potential disabilities in a foetus, there is particular concerns when it comes to what are seen as ‘minor or trivial conditions or characteristics[37]. Finally, there has in recent years been considerable medical and consequently social concern over the issue of foetal awareness. The Royal College of Obstetricians and Gynaecologists Working Party produced a report in 1997 which received attention in parliament[38] and the Medical research Council (MRC) followed this by producing a further report on the issue which has lead to calls that ‘given there is a possibility [that a foetus can feel pain] we should give the foetus the benefit of the doubt[39].

The approach in the United Kingdom is somewhat anomalous when compared to other jurisdictions and fails to take a coherent approach to the whole issue. The leading case in English law of Paton was cited at the beginning of this work and there are a whole host of cases that make it clear that a foetus is not a person in the eyes of the law[40]. It would be tempting to argue therefore given the general attitude exemplified in Paton that the UK was a pro-choice jurisdiction but this is not in fact the case. The UK has sidestepped the debate and rather than take a rights approach the Abortion Act 1967 ‘does not so much liberalise the regulation of abortion than 'medicalize' it[41]. In contrast to the judicial pronouncements in other areas there is barely anything formally liberal about the Abortion law of the UK[42]. Formally speaking Abortion is a crime, under the provisions of the Offences Against The Persons Act 1861, to which the Abortion Act 1967 gives a defence. Furthermore, there is the anomalous Infant Life (Preservation) Act 1929 which provides for the protection of a foetus who is born alive. The effect of this statute is unclear however it was felt in Paton that these criminal law sanctions were now ‘irrelevant’[43] and this seems to be supported with the attention it received in C v. S[44]

However, it is perhaps the largest area of disparity between law and practice. The Abortion Act 1967 sets up a system whereby Abortion is prima facie illegal unless two medical practitioners agree that it is necessary for a variety of reasons. There is, however, a large socio-legal disparity[45] between Abortion law and practice, it seems that the provision of Abortion services by medical practitioners takes a highly liberal approach. The fact that over 180,000 Abortions are carried out every year and that the number has increased greatly since the early 1990’s is argued to be proof of this enlightened interpretation of the statute by those whom it seeks to regulate[46].

The starkest contrast to the medicalised approach of the UK is the rights based approach of the United States. In 1973 the Abortion debate in the U.S. was radically changed by two decisions in the United States Supreme Court: Roe v. Wade[47] and Doe v. Bolton[48]. These decisions are the basis of the whole law in the U.S. and effectively removed Abortion as an issue to be dealt with as a State prerogative[49]. Justice Blackmun in Roe specifically stated:

This right of privacy... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent[50]

The decision in Roe was a landmark decision because it gave definitive rights to the mother, and importantly there was no requirement for a mother, in the early stages of pregnancy, to justify their position with reference to their underlying reasons. The substantive position was slightly altered in the case Planned Parenthood of Southeastern Pennsylvania v. Casey[51] where the gradual increase of a state’s interest in the foetus being demarcated by the trimesters was abolished. In that case the court felt that the woman’s right was not have an ‘undue burden[52] in making the abortion decision. This was defined as a state regulation that ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking abortion of a non-viable foetus[53]. It nonetheless remains that a woman in the early stages of her pregnancy will have a right to a pregnancy but near the end of pregnancy the state’s interest in the protection of a viable foetus will exceed the woman’s right to privacy. The decision in Roe did mention the role of the medical profession and this has been the subject of a great deal of academic controversy because it appeared to ‘tie’ the woman’s right to an abortion to her physician[54]. The position is somewhat anomalous but it would appear that it relates only to a doctor’s medical expertise and unlike in the U.K. it doesn’t vest the power in physicians to question the underlying reason that a woman wants the abortion[55].

A review of the approach of the world’s jurisdictions to Abortion shows a startlingly diverse approach. There is no generalisations to be made when we look at the various approaches and it is surprisingly one of the issues which transcends all societies and barriers for example countries such as Tunisia and Turkey, despite the juridical influence of Islamic law in these countries, have a more liberal approach than the UK[56]. In Egypt Islamic Law is incorporated directly into state law and their interpretation is extremely conservative. It is a criminal offence to have an abortion for any other reason than medical necessity to save the life of a mother. In Kuwait, if the pregnancy is less than four months then an abortion may procured if there is a danger to the mother’s health, if the foetus would be born with an incurable deformity or if both parent’s consent to the Abortion[57]. Kuwait seems to adopt a medicalised approach in that it requires the approval of three specialised Muslim physicians of which one must be a gynaecological and obstetrics specialist, the decision must also be unanimous. Tunisian law is much more akin to the U.S. position in that following changes in the law in 1973[58], this gives woman the right to an abortion on request in the first three months of pregnancy, in the second and third trimester it is permitted when there is a risk to the mental or physical health of the mother or where there is likelihood of serious disease or deformity. In Australia the position is particularly murky in that there is a great deal of diversity in the approaches to abortion in the various states, in some states the basis is still the UK Offences Against the Person Act 1861 and the Infant Life (Preservation) Act 1929, the general approach however appears to be based on placing the doctor’s as gatekeepers[59].

China provides a particularly insightful comparator because, unlike western jurisdictions and the interplay of liberalism with the Abortion debate, the Chinese accept a large degree of paternalism and interference into the regulation of reproduction[60]. In a paradoxical way Abortion is treated in the most liberal fashions, there is absolutely no restrictions on the procurement of Abortion, in fact it is viewed by the state as ‘as a secondary birth control measure, to be used only when contraception fails[61]. This was largely necessary because the contraceptives available to the Chinese were far from satisfactory and due to their population quota requirements Abortion had to be an available remedy. However, as a corollary there is a degree of laxity over the undoubted wrong of coerced abortion. The eastern approach to Abortion is in fact so completely alien to western society that it is hard to grasp. Eastern philosophy mandates that the foetus is always life from conception but this doesn’t connote the same concerns as exist with the establishment of life in western society. The Eastern philosophy viewed the foetus as life but ‘because its life in its organic unity was integrated with hers and derived from hers[62] the mother had the absolute discretion to dispose of the foetus. The foetus is seen as continually growing and evolving as life but it is not the moral equivalent of its mother because its life flows from her and her mate. This position is difficult to understand in isolation from other Chinese philosophies but provides an interesting comparator and insight into the occasionally dualistic and didactic reasoning that surrounds western debates about the rights of a foetus and the tendency to treat it as a separate moral component.

The foregoing inter-jurisdictional review highlights how various societies can be influenced by various beliefs and that in general the laws of the country are greatly influenced by their moral and philosophical traditions. It reinforces the idea that abortion raises issue of such fundamental importance that they are the subject of universal legal apparatus. However, it only further complicates the debate over whether UK law ought to support Abortion and in what manner. It is clear that some of the more liberal jurisdictions are able to deal with the moral controversy easier by medicalising the issue as something that ought to be the remit of physicians. This socio-legal gap is however deeply unsatisfactory when we consider the role of the Rule of Law in articulating those morals of society which are ‘non-negotiable’. It is also inconsistent with both the social and legal reality of other incidences of the maternal-foetal conflict, as we shall see. What can be extrapolated from the foregoing is the almost universal view that where there is a danger to the mother’s health then abortion will be justified. This universal principle may hide a variety of philosophical differences but at the very least it is common ground and from which we can begin to build a coherent holistic approach to the issue of foetal rights. However, as stated above we cannot make definitive statements on the issue of foetal rights until we have considered other aspects of the maternal-foetal conflict.

  • Refusal of Treatment and the Foetus

It is a fundamental tenet of English medical law that all humans have an inviolable bodily integrity which makes all surgery or invasive medical procedures assault unless the patient consents. Lord Donaldson in Re T (Adult: Refusal of Medical Treatment)[63] stated the legal belief in Autonomy:

Prima facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death. Furthermore, it matters not whether the reasons for the refusal were rational or irrational, known or even non-existent... [T] he capacity to decide...stems from the fact that the patient is an adult[64]

Anomalously, following this rather rousing definition of adult autonomy Lord Donaldson attached the rider:‘The only possible qualification is a case in which the choice may lead to the death of a viable foetus[65]. It is impossible to square this dicta with that of Sir George Baker in Paton who argued that the lack of recognition for a foetus ‘permeated[66] the civil law and the position in the UK following Re T has been as confusing as this initial contradiction would suggest and has lead to what Maclean called the ‘illusion of autonomy[67]. A brief review of the case law in this area exhibits why this is the case.

The flashpoint for these decisions has been the Mental Health Act 1983 (MHA) and the power of members of the medical provision to override the decisions of potentially competent women. The decision of Re S (Adult: Refusal of Medical Treatment)[68] kicked off this debate because it drew on the obiter dicta remark from Lord Donaldson above and applied it to a real life situation. A couple were refusing to allow a caesarean section on the basis of religious grounds; in the making of a declaration that an operation against the women’s consent would be lawful the court was satisfied by the obiter dicta despite no other legal basis. This lead to a number of cases which raised similar issues to this. In Tameside and Glossop Acute Services NHS Trust v. CH (a patient)[69] who suffered from paranoid schizophrenia was being held under the MHA 1983 and it was held that her refusal of consent was invalid given her mental state. Whilst this case perhaps served a legitimate purpose, in that the woman was truly disturbed, it lead to other cases which had slightly less legitimate claims. In Norfolk and Norwich Healthcare (NHS) Trust v. W[70] a woman arrived at hospital and denied being pregnant despite obviously being in labour, she also had a previous history of psychiatric problems however at the time she was not being detained under the MHA however Johnson J felt that this was sufficient:

‘…although she was not suffering from a mental disorder within the meaning of the statute, she lacked the mental competence to make a decision about the treatment that was proposed because she was incapable of weighing up the considerations that were involved.[71]

The turning point from potentially justifiable to undermining the concept of personal autonomy surely came in the case of Rochdale Healthcare (NHS) Trust v. C[72] where a women stated that she had undergone a caesarean before and would rather die than undergo one again, the obstetrician felt she was competent and self-admittedly Johnson J. ‘on the scantiest of information[73] held she was unable to weigh-up the considerations effectively[74] and allowed the operation to go ahead. This was followed by a succession of less unsatisfactory decisions in Re L and Re MB[75] where a phobia of needles was held to overcome a women’s competence to effectively balance the considerations. These excesses were clearly creating an ‘illusion of autonomy’ as Maclean suggests and this was finally recognised in the Appeal courts in Re MB and the case of St George’s Healthcare NHS Trust v. S; R v. Collins ex parte S[76]. The facts of the latter case were that the mother wished a natural birth and despite her being a competent qualified veterinary nurse the court overruled her refusal for treatment. On appeal this was overturned and the court re-iterated:

While pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatmenther right is not reduced or diminished because her decision to exercise it may appear morally repugnant[77]

The foregoing decisions with the exception of Re T and Re S has made no direct reference to foetal rights but it is clear that one of the interpretations of the position is that where the danger of death to a nearly-born foetus is present the women may not be competent to make a decision that could affect its health. On Appeal the decision of Re MB specifically overruled Lord Donaldson’s dicta in Re T and re-affirmed Paton as stating the common law position on the legal status of the foetus, they also reviewed a number of other leading authorities on the issue and categorically stated there was no authority that ‘lends any support to the proposition that the court should take into account the interests of the unborn child[78] either at a UK or European level.

We shall also briefly look at the position in other jurisdictions which gives us a more holistic understanding of this issue. In the U.S. for a long time the leading decision on this issue was Jefferson v. Griffin Spalding County Hospital[79]. In this case there was an application by a child protection agency to treat the foetus as a deprived child after the mother had refused consent to a caesarean section for religious reasons. Hill PJ held that the mother’s right to practice her religion was outweighed by ‘the State’s duty to protect a living, unborn human being from meeting his or her death before being given the opportunity to live[80]. This approach was kept and was used time and again until the tragic case of In re AC[81] where both mother and foetus died after the court authorised delivery by caesarean section of a 26 week year old foetus, which proved unable to sustain itself out with the womb. The case sparked concern over infringement of maternal autonomy and the fact that it was only particular groups of society this was occurring to because apart from the poor single moms from ethnic minorities others could afford to go to fee-paying hospitals that were less reluctant to subject patients to a court order. The balance seems to have swung the other way now and in decisions such as Re Baby Boy Doe[82] and In re Fetus Brown[83] the court upheld maternal autonomy and allowed the mother to make the decision.

It seems fortuitous that the UK decided to reverse their trends before they had to deal with the unfortunate situation that arose in the U.S. following In re AC however it is clear that in many respects there is still an ambiguity, much as there is in the U.S., about whether the very fact of pregnancy might be sufficient to overcome the competence of a pregnant women. There are number of commentators that have noted this trend, for example even on Appeal in Re MB the court felt that that factors affecting competence could include ‘fatigue, shock, pain or drugs[84], all of which are invariably a part of childbirth and could have the effect of making a pregnant woman never competent to refuse medical treatment. The same critique can be levelled at the nebulous U.S. test of ‘extra-ordinary or compelling reasons[85] for overriding the refusal of medical treatment.

The maternal-foetal conflict is at it’s highest here although often the re-characterisation into terms of competence tends to obscure the concerns here. However, it is clear from the attempts in Re S and Re MB to argue on the basis of foetal rights that at least one of the motivating concerns is the seeming moral weight of a foetus that is so clearly capable of being born alive. The refusal of medical treatment cases are all the more poignant for this because it is an incidence whereby we’re faced with a situation that the classification of the foetus as not legally a person doesn’t square with the obvious moral weight attached to an extremely viable foetus. However, again we see the Rule of Law concerns intervening here, principles such as bodily autonomy are possibly one of the most fundamental concerns in a liberal society. The choice of how you deal with your body is fundamental to your identity as a person. In the conclusions section we will deal with the resolution of all these conflicting concerns but at this point it is key that we see here the English law’s position on the foetus fails to attune itself to clear moral concerns and perhaps in that respect doesn’t live up to it’s role in a Devlin sense.

  • Lifestyle whilst Pregnant

The final incidence of the maternal-foetal conflict that academic commentators and the courts in certain jurisdictions have come across has been the blatantly harmful behaviour of a mother who, for example, abuses drugs and alcohol whilst pregnant. It is clear that the negligent actions of the mother in this case could have potentially catastrophic effects on the development of a child. This issue highlights the degree to which law will place positive duties on a mother to refrain from doing something otherwise legal such as consuming alcohol. It is clear from general principles of Tort that the law will imply such duties where the person has a duty of care towards the harmed individual, furthermore family law generally provides for the protection of children who are inadequately cared for by either parent. The issue of mothers who are reckless with the health of a foetus could potentially be the remit of a variety of areas of law such as child protection or criminal law.

There have been a number of cases in the U.K. which have discussed this issue to a degree, however as with the cases on refusal of treatment often the issue is re-characterised by the courts or completely ignored as a motivating factor. The issue of a drug-abusing mother came before the courts in D v. Berkshire County Council[86]. The mother in this case was a registered drug-addict and as a result her child was born addicted to drugs and was kept in intensive care suffering from withdrawal symptoms. The local authority took the child into care proceedings under the then Children and Young Persons Act 1969. The House of Lords felt the fact that ‘the circumstance that the cause of the two situations in which the child was at that point of time, and the possibility of their having been avoided, dated back to the time before she was born appears to… be immaterial[87]. It was argued by some that the effects of this decision had a symbolism that outstripped the individual facts; in particular it was argued that if behaviour towards the child was relevant for care proceedings then perhaps it might be relevant for criminal sanction such as Murder or Manslaughter if the foetus died[88] or perhaps that the mother may be liable in Tort to their harmed child. The likelihood of the foregoing has been argued to be remote given the statutory system for liability setup in the Congenital Disabilities (Civil Liability) Act 1976 which specifically excludes general liability of the mother[89]. The establishment of criminal law liability was also argued to be a remote likelihood because it would create a situation where there was no civil liability but there was criminal liability.[90]

Another English case that was described as ‘immensely important[91] in this debate was the case of Re F (in utero)[92] where Hollings J determined that an unborn child could not be made a ward of the court and protected in that manner. In the case a woman was suffering from delusions that the doctors and nurses were attempting to hurt her child, she had disappeared and it was thought she may have returned to a nomadic lifestyle. Hollings J at first instance specifically stated:

wardship can only apply to a living child…one can well imagine that there would be a repugnance on the part of a right thinking person in certain instances to think of applying the principle of paramountcy in favour of the child's welfare at the expense of the welfare and interests of the mother[93]

On Appeal the decision was the same but the court made it clear that although they sympathised with the position of the local authority that ‘in such a sensitive field, affecting as it does the liberty of the individual, it is not for the judiciary to extend the law[94]. We see here the dichotomy between liberalism and paternalism influencing the judiciary. Hollings J seems to be saying that the judiciary shouldn’t be the arbiters of a paternalism that could potentially lead to a moral ‘repugnance’. This is an important attitude to note in the judiciary as it casts doubt over the dictum of Viscount Simmonds in Shaw v. DPP[95] and the position of Lord Devlin that there is a place for the courts in enforcing the moral welfare of society, at least in respect of the foetus’ right to life debate and it’s position in legal discourse.

The position in other jurisdictions is broadly similar to that of the U.K. In Canada there has been two cases which have raised issues akin to Re F and Berkshire County Council. The first is the case of Winnipeg Child and Family Services v. D.F.G[96] where the court came to consider whether the court could use its parens patriae jurisdiction to protect the unborn child. The mother suffered from a mental illness, and the order was eventually made on that basis, however the court specifically commented on the role of the unborn child. The decision was significantly similar to Re F as it was felt such a revolutionary decision would in effect be such a large change to the law that it was not an appropriate decision for the judiciary. However the court did list a number of other factors that contributed to the decision[97] which included the fact that the foetus wasn’t a legal person and importantly that the imposition of conflicting rights as between mother and foetus could lead to undesirable outcomes, much the same as Holling J felt. Interestingly the court also felt that from a social point of view it may ‘produce resentment in the mother, which may have a more detrimental effect than that of the conduct the court sought to limit and may deter other pregnant women from seeking antenatal care[98]. This highlights another issue that has to be weighed in the balance when discussing the rights of a foetus and exemplifies that the existence of the Rule of Law requires more complex evaluations than exist in the pro-life / pro-choice debate.

The second case in Canada was that of Dobson v. Dobson[99] which greatly contributed to foetal rights jurisprudence in Canada. In this case a mother was being sued by her child for injuries sustained in utero as a result of negligent driving. In that case the majority felt that this issue was of much more importance than its individual facts and went to the heart of whether the law should impose liability on a mother for a harm caused by her negligent actions whilst pregnant. The majority felt that this ought not to be the case because of the ‘impact that such a duty would have upon a pregnant woman's rights to bodily integrity, privacy and autonomy[100]. This issue alone was not determinative for the majority but they also felt that the unique relationship between a mother and her foetus made this particularly difficult. Here, Cory J. delivering the majority judgement explicitly relied on the U.S. case of Stallman v. Youngquist[101] where the court refused to allow tortuous liability between child and mother on the basis that it would create ‘an unprecedented legal duty on one person to guarantee the health, both mental and physical, of another[102]. It is distinguishable from the establishment of third liability precisely because the imposition of a duty of care on a third party doesn’t materially impact on the right of that person to control his life.

The foregoing cases on the laws intervention into a women’s lifestyle clearly shows that the general approach is to deny the foetus any avenue for recourse against its parents however importantly we ought to mention that there is a distinctive manner in which the courts in Canada and the courts in the U.K. deal with the different concerns. This a distinction which Scott has made much of but it bears repeating here because of its pertinence. The court in Dobson formulated the majority judgement in such a manner as to say that public policy negated the enforcement of a prima facie duty of a mother to safeguard the health of her foetus. Whereas the position in Re F seems to endorse the position of Paton that a foetus has no rights and a mother no corresponding duties in other words the law ignores the foetus as it has no standing. The former approach of the Canadian court certainly allows more room for a Devlin style enforcement of public morals. We will now turn to our final section where we can draw all these concerns together and come to some conclusion on the approach that the law ought to take to the issue of foetal rights.

  • Conclusion

As I stated in my introduction the debate over the foetal right to life for legal scholars is not about whether morally speaking the foetus ought to have a right to life whilst this is undoubtedly an important factor in the debate but it goes a lot further. The promulgation of authoritative rules in society has a number of issues attached to it that are not easily dealt with as a holistic whole but this work has attempted to bring several strands together which in this conclusion can be pulled together to make a coherent whole.

The issue of whether the foetus has a right to life in law cannot be readily distinguished from whether the law ought to accord any rights to a foetus. The issue is one which exhibits a great deal of moral controversy and the legislation currently in South Dakota and the variety of approaches in the regimes around the world shows that there are wildly varying approaches that rational legislators can take to the issue. The English legal position is clearly unsatisfactory because it has at its core three inconsistent principles. Primarily, that of Paton which has come across the board in all the incidences of the maternal-foetal conflict to represent the ultimate common law position; the foetus has absolutely no recognition in the law. Secondarily, our law places a premium on the liberty, freedom and autonomy of the mother which was well exemplified in the section on refusal of treatment. Thirdly, the Infant Life (Preservation) Act 1929 which at s.1 creates the offence of a killing child whilst in the womb which ‘is capable of being born alive[103], and the illusion of autonomy in some of the cases on refusal of medical treatment which clearly shows that legal decision-makers place a premium on the moral value of the foetus.

The law in England seems to be acknowledging the maternal side of the conflict but it is likely that the line of decisions that followed Lord Donaldson’s dicta in Re L will be repeated elsewhere because whilst the law continues to ignore the fact that there is a degree of moral conflict over the issue. This is where the argument over morals and the rule of law becomes important. In my opinion the degree of moral controversy means that law has a duty to reflect the conflict rather than ignore the problem or medicalise it. This makes no claims as to whether the U.S. gradual increment of foetal rights or the Chinese complete disregard of any foetal rights is the correct position but simply to say that taking a stance is clearly necessary for law to fulfil it’s fundamental role, especially if we agree with the interpretation of Lord Devlin.

In considering the approach the law ought to take the foregoing is all very pertinent. The approach for the law however cannot be the extension of a right to life, in my opinion, regardless of whether there morally is one because the ‘proliferation of poorly-supported rival rights is not progress towards a solution but rather a symptom of the rigid thinking that blocks progress[104]. The correct approach, following that of the majority in the Canadian case of Dobson, is to recognise the fundamentally unique situation that pregnancy can occasion. As long as we don’t foreclose the issue by trying to argue for the supremacy of one set of rights over another in a moralistic fashion but recognise that the decisions of a mother with regards her foetus is one that can only be understood contextually when we take into account all the variety of factors both legal and extra-legal. In Abortion this may well include issues such as the sentience of the foetus, it’s viability, the underlying reasons for the Abortion and the importance of allowing each female create her own identity by having the choice of whether or not to have a child. In respect of the lifestyle of the mother and refusal of treatment the importance of bodily autonomy, the degree to which the imposition of duties will create an almost impossible burden and the avoidance of creating maternal resentment given the inherent power imbalance between the foetus and the mother.

In my opinion the legal academic has no place in being determinative of moral conflicts and the work of legal academics ought not to be presented as jurisprudence when they’re in fact just moral debates. The purpose of this work has been to outline the incidences of conflict and the way the law de facto deals with them. We have then subjected the approaches of the court to scrutiny in light of jurisprudential concepts such as the rule of law. The outcome is to show that our approach is flawed but not in that it doesn’t substantiate the correct moral values but that it doesn’t reflect the true complexity of the moral debate and doesn’t do it’s job in reflecting the culture and beliefs of the society it intends to govern. Whilst we may stand in moral judgement of the conservative Egyptian approach to Abortion as nearly always illegal, or perhaps the Chinese approach, at least that reflects the teachings of the Quran that inform that society’s views. We maybe a secular society but it is clear that we have opinions on the various issues and the law ought to reflect this.

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[1] [1979] Q.B. 276

[2] See Grant (1991)

[3]Ibid. Chapter 2

[4] This was the date in which judgement was handed down in the seminal US Abortion case Roe v. Wade 1973 410 U.S. 113.

[5] See 10th February 2006 That’s not to mention the Partial-Birth Abortion Act of 2003 which was seen as a victory for the pro-life campaigners.

[6] I highlight this phrase so as to make clear that this is a reference to the philosophical concept of the rule of law.

[7] Speech was given on 22nd February 2006 and reported in The Times 24th February 2006. See also Allan (2003) p.89 where he highlights that respect for inalienable rights has recently become a mainstay of the rule of law.

[8] Ibid.

[9] Ibid.

[10] For example debate about when life begins whilst obviously important is hardly to be determinative in deciding when

[11] Quoted in Tamanaha (2005) Ch.1 p.9

[12] See Marmor (2004) p.38 for a discussion.

[13] Ibid.

[14] See Finnis (1980) also note that Finnis was a noted pro-life writer.

[15] right to life is not transcendent of all other rights but, as English (1975) points out for example if an innocent person is hypnotised into attempting to kill someone it would not be wrong for the person being attacked to kill his attacker.

[16] Schauer

[17] See Gillon (2001) who also substantially argues that even so called pro-life arguments exhibit a great degree of variance.

[18] Davies & Holdcroft (1991) at p.266

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