ABSTRACTThis paper considers the legal position of men and women following three ways of conception; within a woman's body, outside of her body and using a surrogate mother. The first chapter concerns a ‘natural' pregnancy, conceived by sexual intercourse, which is unwanted by one party. The rights of the man, woman and foetus are discussed in terms of the Abortion Act 1967 and Human Rights Act 1998. It is shown that a woman does not have a right to abortion on demand and must obtain the signature of two doctors to allow a legal abortion. Although she must consult a doctor she is under no obligation to consult the father and he has no means of preventing or enforcing a legal abortion. The second chapter looks at assisted conception, when embryos are stored for later implantation. The law allows either party to withdraw their consent up until the time the embryos are implanted in a woman's womb. When one party withdraws their consent the guidelines state that the embryos must be destroyed. The party wishing to keep the embryos has applied to the Court to overrule the withdrawal of consent citing that they have a right to found a family and the embryo has a right to life under Human Rights legislation. It was found however that the law favours the person who does not wish to procreate. The third chapter highlights the legal problems raised by the use of a surrogate mother. Disputes have arisen when the surrogate refuses to hand over the baby after birth. Cases have been decided using both biology and intent to parent. In conclusion, it was found that the rights of each party are given different legal emphasis in respect of abortion, IVF and surrogacy and the limits of technology and biology prevent rights being made more equitable.
INTRODUCTION‘Reproduction does seem to be a peculiarly - and visibly - female activity. It is the woman's body which carries a pregnancy, which provides the necessary warmth and nutrition to sustain the foetus, and which swells to accommodate its growth. By comparison, the man's involvement seems insignificant, amounting to nothing more than the ejaculation of a small quantity of seminal fluid' Sally Sheldon describes the biological view of conception and pregnancy and reduces the ‘father' to nothing more than a few drops of fluid, whereas the mother's whole body changes to accommodate the foetus. The traditional role of men and women as parents has changed dramatically in the last century. A man was viewed as the provider, the head of the family and automatically the father of his wife's children. A woman's role was to provide her husband with children and take care of his home. She had no right to vote, own property or have access to their children should the couple separate. Until quite late in the twentieth century, the only method of contraception approved by the church was coitus interruptus. Condoms were available but this too placed men in control of conception, leaving women to deal with the aftermath of an unwanted pregnancy. Although abortion was available it was not legal, regulated or safe. The 1960's saw the introduction of the contraceptive pill and the legal defence of medical abortion. A woman gained control of her fertility and could plan a family around her career ambitions, finances and relationship status. Couples could postpone having children or decide not to have any at all. Not everyone can conceive naturally. This may be due to health problems or being in a same sex relationship. Technological advances mean that couples can overcome many forms of infertility by the use of assisted conception. This has challenged the accepted idea that genetic and legal parents are one and the same. This paper will discuss the rights of a man and woman when a child is conceived naturally, through sexual intercourse, by assisted conception and by the use of a surrogate mother. The Law and Statutes governing assisted conception and abortion will be examined to ascertain if the circumstances of conception affect the rights of the parents. Relevant court cases and academic comment will illustrate how Judges have interpreted the law when couples cannot agree whether an abortion should be granted or an embryo implanted or destroyed. The use of a surrogate mother complicates the legal and socially accepted definition of a parent, as the birth mother may have no genetic connection to the child and her intention is to rescind her parental responsibilities at birth. It conclusion, it is considered whether it is possible to make the rights of a man and a woman more equitable.
CONCEPTION WITHIN A WOMAN'S BODYMost couples, when faced with an unplanned pregnancy, make the decision together as to whether to proceed with the pregnancy or have it terminated. The complications arise when the couple cannot agree and apply to the courts for a final decision. This chapter will explore the legal position when one person wants to keep the pregnancy and the other wants an abortion. It is intended to discover if a man and woman have equity in law and, if not, why the law could be said to favour one party over the other. In 2008, 195,296 legal abortions were carried out in the United Kingdom (UK). 90% were funded by the National Health Service and performed under thirteen weeks gestation. The most common reason given for women under 24 weeks pregnant to have an abortion is that ‘continuance of the pregnancy would involve risk greater, than if the pregnancy was terminated, of injury to her physical or mental health'. 81% of abortions were carried out for single women7. However, this does not mean that they were not in a relationship, merely that they were unmarried. Men can, and often do, influence the decision of abortion. According to the limited research available, women who were undecided whether to continue the pregnancy or terminate were more likely to abort if the men were unhappy that they were pregnant and unwilling, or unable, to support a child. Men who expressed the desire to keep the child often swayed a woman towards continuing the pregnancy. However, many men were presented with a woman's decision and then asked if they agreed. Pregnancy was viewed by many men as a woman's choice and they supported whatever decision the woman made.
Abortion Law in the United KingdomContrary to common belief, abortion in the UK is not legal or available on demand. The Offences against the Person Act 1861 states that it is an offence to intentionally procure a miscarriage, either by self-administering or providing another with ‘any poison or other noxious thing&esquo; or using ‘any instrument or other means whatsoever'. The Infant Life (Preservation) Act 1929 protects a child during birth, as it an offence to ‘destroy the life of a child capable of being born alive' unless for the purpose of‘preserving the life of the mother'. If a woman has been pregnant for a period of twenty-eight weeks or more this is ‘prima facie proof that she was at that time pregnant of a child capable of being born alive'. The Abortion Act 1967 gives doctors a defence against prosecution under the above Acts, if two doctors believe ‘in good faith' that a pregnant woman meets ‘one of the specified grounds', which allows a ‘registered medical practitioner' to perform a legal abortion. The Abortion Act does not give a woman the right to reproductive autonomy but gives doctors the authority to decide if a woman meets the criteria for a legal abortion.
Grounds for a legal Abortion
- The continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated;
- The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;
- 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;
- The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant woman;
- 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; or in emergency, certified by the operating practitioner as immediately necessary:
- To save the life of the pregnant woman; or
- To prevent grave permanent injury to the physical or mental health of the pregnant woman.
Men who did not want an abortionSome men, who do not want their ex-partners to abort their child, have gone to court to try to prevent an abortion. They were all unsuccessful as the following cases illustrate.
Paton v British Pregnancy Advisory Service Mr Paton applied to the Court for an injunction to prevent the Defendants from terminating his estranged wife's pregnancy. Mrs Paton held a certificate, signed by two doctors, that her circumstances met the criteria for a legal abortion. Mr Paton stated that her actions were vindictive, spiteful and unreasonable. He wanted to have a say in the destiny of his child and relied upon Article 2(1) of the European Convention on Human Rights that everyone's right to life shall be protected by law. The Judge explained that an injunction can only be granted if a person has a legal right enforceable in law or in equity. The foetus ‘cannot in English law... have any right of its own at least until it is born and has a separate existence from the mother'. The European Commission when considering the right to life of a foetus decided that the ‘life' of a foetus is ultimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 afforded protection to the foetus the ‘unborn life' of the foetus would be regarded as being of higher value than the life of the pregnant woman. This may lead to a woman being confined against her will for the duration of the pregnancy, forced to give birth or endure a caesarean without her consent. Emily Jackson states that Mr Paton's protests could be ignored ‘without violating his interest in making decisions about his body' as greater protection should be given to people when their ‘bodily integrity is at stake'. As the child had no right to life any action taken by Mr Paton must hinge on his rights alone. The Abortion Act makes no provision for a man to be involved in the decision as to whether a woman should have an abortion. Therefore Paton had no right to stop the abortion going ahead unless he could show that the abortion would be illegal. As the requirements for a legal abortion had already been met and signed by two doctors the judge held that the abortion could go ahead. The Paton case established that a foetus has no rights until it is born alive and has been cited in all subsequent hearings that have attempted to prevent legal abortions from being carried out.
C v S and AnotherRichard Carver, a member of the Oxford University Society for the Protection of Unborn Children (SPUC), wanted to prevent his former girlfriend from having an abortion. Mr Carver's case was financed by SPUC and his Counsel, Gerard Wright QC, was a founding member of the Association of Lawyers for the Defence of the Unborn (ALDU). He argued that at twenty-one weeks gestation, the foetus was capable of being born alive within the meaning of section 1(1) of the Offences against the Person Act. Therefore, the abortion would be illegal. He did acknowledge that the child would not be viable and would die after birth but that it satisfied the requirement of being born alive. The World Health Organisation's definition of a live birth is ‘the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of the pregnancy, which, after such separation, breathes or shows any other evidence of life - e.g. beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles - whether or not the umbilical cord has been cut or the placenta is attached.' Carver accepted that the law gave him no right to take part in the abortion decision but claimed that the foetus should be a party to the claim as it was being threatened by a crime. However, Heilbron J agreed with George Baker P in Paton that the unborn child is not a person and that any rights accorded to the foetus are held upon its subsequent live birth. Therefore the foetus did not have a legal interest in the case. Oxford Health Authority had refused to carry out the abortion until the Court had ruled and therefore the cases were heard very quickly. As the pregnancy progressed the woman had less chance of being allowed the abortion. A High Court hearing, an appeal and the final dismissal by three Law Lords all occurred within thirty-six hours. The fear was that Carver could achieve, by using delaying tactics, what he could not achieve through the courts. The woman, although legally permitted to have the abortion, subsequently changed her mind, carried the baby to term and gave it to up to Mr Carver to raise.
Abortion is a Medical DecisionPrior to 1938, the only justifiable reason for an abortion was to save the life of a woman. When Dr Aleck Bourne was prosecuted, for performing an abortion on a 14 year old rape victim, his defence was that to continue the pregnancy would have affected the girl's mental and physical health. Judge, Mr Justice McNaghton, compared Bourne's decision to that of a surgeon who believed it necessary to remove an appendix but later found that the appendix was normal. The surgeon would not be blamed as he believed ‘in good faith' that it was for the patient's welfare. Dr Bourne was acquitted and changed the rule that abortion was only legal to save the life of the mother. The Doctors ‘good faith' decision still applies to abortion today. An attempt to police the decision to abort and ensure that the legislation is adhered to is the insistence on two doctors' signatures on the Abortion Certificate. No other medical procedure requires two signatures and some feel this is now an outdated requirement. Objectors to the rule state that this goes against patient autonomy and creates a barrier to abortion. Without the two signatures the abortion would be illegal. The only successful case where a doctor has been prosecuted is R v Smith where the second doctor, an anaesthetist, was asked for his signature while the patient was on the operating table about to undergo the procedure. It was proven that Dr Smith had not weighed the risks of continuing the pregnancy against the risk of termination. He had not taken a medical history and had not examined her or sought the opinion of a second doctor prior to the procedure. Dr Smith protested that, at the time of the abortion, the patient was in the process of miscarrying and he was ‘merely facilitation and tidying up an inevitable abortion'. He was convicted of performing an illegal abortion under S.58 of the Offences Against the Person Act 1861.
Conscientious ObjectionDoctors are permitted to have a conscientious objection to participating in abortions unless the abortion is necessary to prevent ‘grave permanent injury to the physical or mental health of a pregnant woman, or to save her life'. 18-24% of medical practitioners described themselves as broadly anti-abortion and do not refer women There is no legal obligation for the doctor to declare his conscientious objection but if the patient meets the criteria for a legal abortion the medical guidelines state that the doctor should‘refer the patient to a colleague at once'. Conscientious objection does not exempt the doctor from giving advice or performing the preparatory steps to arrange an abortion. However, it has been suggested that a doctor who objects to abortions on religious or moral grounds can slow down the process and result in later abortions taking place or indeed the woman's decision being vetoed. A father's conscientious objection to abortion is not taken into account. The conscientious objection clause only relates to those directly participating in the abortion procedure and not to those who may be emotionally involved.
Woman's Right to AutonomyA woman does not have the right to demand an abortion but must seek the permission of her doctor. The fact that abortion is a medical decision avoids pro-life groups arguing that abortion on demand is a reality. Any attempt to ban abortions would fail as it is viewed as a medical procedure, decided by the woman and her doctor, and is therefore likely to avoid becoming the moral and political football that it appears to be in America . Patient autonomy is at the heart of UK healthcare but, in theory, a doctor can decide that the woman must continue the pregnancy. In all other medical decisions doctors must comply with instructions given by a competent adult whether those instructions appear rational or not and yet legally the woman is not allowed to make the decision alone that she does not want to continue a pregnancy. In practice however, it is highly unlikely that a request for abortion will be vetoed. This leads to the conclusion that the doctor's 'permission' is a legal requirement rather than a medical opinion.
ConsentIf the Abortion Act does not guarantee a woman's right to autonomy it does protect her right to consent. Nothing can be done to the foetus which does not affect the woman in whose body it is contained. As ‘every person's body is inviolate' a woman must consent to an abortion and this protects her from an abortion being performed against her will. Another view of consent is that she must also agree to the foetus remaining within her body for the pregnancy to continue. Pregnancy affects the woman both emotionally, through increased hormone levels, and physically as it alters every system in her body to accommodate the needs of the growing foetus. It can impact on her ability to continue her education or follow a desired career. If any other living creature invaded the woman's body or limited her freedom, without her consent, the law would consider this as an offence against her. If a man ‘invades' a woman's body during sexual intercourse, without her consent, it would be a crime as in law ‘no means no'. A woman who requests an abortion does not consent to her body being used by the foetus. To force her to continue the pregnancy because her partner forbids an abortion overrides her status as a full member of society and deprives her of her basic human rights.
Foetal Personhood and Right to LifeAnti-abortionists insist that that the foetus is a person from conception. UK law does not recognise the foetus as a person with rights. However, it does appear to give greater importance to the foetus, as it becomes viable, by not allowing abortions after 24 weeks gestation unless the woman's life is in danger or the foetus has severe disabilities. By allowing abortions at any stage prior to birth, to save a woman's life, the law acknowledges the woman's life is of more value than that of an unborn child. In America, pregnant women have been arrested and jailed for child neglect for taking drugs and alcohol during their pregnancy. In the UK, the child protection laws apply to a person and not a foetus and a woman's conduct during pregnancy is not restricted for the protection of the unborn. A child cannot sue his or her mother for compensation if her conduct, while pregnant, causes him or her harm. Hewson states that there are ‘conceptual difficulties with attributing personhood to an entity which is invisible, inaccessible, physically contained in and attached to the woman, which lacks capacity and cannot interact with others at all, prior to birth'. The only direct relationship it can have, according to Sherman, is with the woman inside of whom it is developing. As nothing can be done to the foetus, that does not involve something being done to the woman, the decisions taken about the foetus must be made solely by the woman. When the Human Rights Act came into being in 2000 many pro-life supporters felt this would give some protection to the unborn foetus as Article 2 of the Human Rights Act refers to the right to life. This has been argued by the fathers in the anti abortion cases discussed later, when it was held that human rights apply when the person is ‘already born and cannot apply to a foetus'. Article 8 is the right to respect for private and family life. This is in regard to an existing family and is not for the right to create a family by the conception of a child. A woman's right to privacy and family life take precedence over any perceived rights of the foetus under Article 2. As the foetus is not legally a person, and therefore has no rights to protect, a mother's rights will always take precedence if she decides to abort. Human rights only extend to those already born and give no protection to a foetus.
Unmarried Father's Rights and ResponsibilitiesUntil 2003 unmarried men who fathered a child did not automatically gain parental responsibility for their child, regardless of whether they were named on the child's Birth Certificate. This meant that they had no legal right to make decisions about the welfare of their child, were unable to sign medical consent forms and had no automatic right to custody if the child's mother died. After 1st December 2003 a man who jointly registered the birth of a child was given parental responsibility. Fathers of children born before this date had to apply for parental responsibility which required the consent of the mother. When a man disagrees about whether a child should even be born it is unlikely that he will want, or that the woman will readily agree, to the man assuming parental responsibility. Regardless of whether a man wants the child, or the mother agrees to parental responsibility being shared, the man is required by law to support the child until the age of eighteen years. The introduction of the Child Support Agency (CSA) in 1993 caused anger, disobedience and even suicide. The CSA is an executive agency of the Department of Work and Pensions and is responsible for administering the system where non-resident parents are required to pay for the upbringing of their children. It was a poorly thought out and complicated system which was amended in 2000 to a ‘fairer flat-rate' system which takes into account the wage of the non-resident parent. The CSA was unpopular from the beginning. Its poor performance and sometimes controversial decisions has led to it being taken over by the Child Maintenance and Enforcement Commission. If the woman is claiming benefits and withholds the father's name she may have her benefits reduced or stopped. The financial obligation of the man ties the woman to him for eighteen years, when she may prefer not to be associated with him. Child support is not a new requirement, fathers have always been expected to support their children. The earliest legislation the writer discovered, during her research, dates back to Elizabethan times and ordered that 'bastards should be supported by their putative fathers'. This was prior to the availability of reliable contraception and safe abortion. The Act was in place to prevent the burden of illegitimate children being maintained by the State rather than to improve the lives of the woman and child (an accusation that has been levelled at the CSA). If a woman continues with a pregnancy, against the wishes of the father, he will assume all the financial responsibilities for that child and yet have no legal say in its future. If a man fails to maintain his child he faces maintenance payments being deducted at source by his employer, his assets can be frozen, his property sold and ultimately he can face a prison sentence. The law cannot force a person to love and care for his child, at most it can only force the reluctant parent to support his child financially. It could be said that it is in the best interests of society for the man to be responsible for his offspring, whether he wanted to become a father or not. He should have realised that sexual intercourse can result in a pregnancy and, if that was not what he wanted, he should have taken precautions to prevent it. However, even when he does try to avoid it, but contraception failed, he will still be held financially liable.
Contraceptive FraudBoth the man and the woman take an equal risk of pregnancy by having unprotected sex. Contraceptives do fail and pregnancy is not the intended outcome but there are rare cases where women deliberately become pregnant knowing the man has not agreed to fatherhood. Legal paternity is decided on the basis of genetic fatherhood not a willingness to become a father. In the United States of America (USA) men have sued for breach of contract, fraud, trespass to the person and emotional distress, which all come under the broad heading of contraceptive fraud. None of the cases were successful. A male victim of statutory rape was held financially responsible for his child although he was still a child himself. It seems very unfair that a woman can deceive a man into impregnating her and then he is held financially responsible especially when the deceit is on the man's part it has been viewed differently. A woman sued a sexual partner, as he stated that he was infertile, but she subsequently became pregnant. She was awarded the costs of the abortion, loss of wages and pain and suffering. The often used argument, that if a man does not want to be a father, he should use appropriate contraceptives is a valid one but if the woman assures him that she is infertile or taking appropriate precautions to avoid pregnancy his only mistake was to believe her. Eighteen years of child support is a very expensive error in judgment.
AnalysisThe biological fact that the foetus develops inside the woman's body and is totally dependent on her for its survival puts the foetus at a disadvantage in any argument justifying its right to life. Without a woman's consent the foetus cannot be preserved or destroyed. Whatever is done to the foetus involves invading the woman's body. A woman's right to protect her bodily integrity allows her to decide if she will continue with the pregnancy. However, she cannot decide alone is she will have an abortion, she must obtain the approval of a doctor. It is a legal requirement to consult a doctor but she is under no obligation to consult the father even if she is married to him. It is argued that the only way for a woman to be granted an abortion is to prove that she is in some way ‘unfortunate, inadequate, unlucky or generally deserving' and that they ‘won't do it again'. McDonagh states that a woman, who consents to sexual intercourse, may be partially morally responsible for becoming pregnant but it does not follow that she is legally required to consent to the condition. She states that if pregnancy is seen as a risk to the woman she has a right to self-defence to stop the foetus from harming her. The doctor may not be fully informed of the woman's personal circumstances and there is no requirement for any proof that what she says is truthful. It could be said that the woman and doctor simply fit the circumstances to the requirement of the law to achieve the desired outcome. Berer states that a more honest approach would be to allow a woman to say that she simply does not want a child at this time but that would not satisfy the grounds for defence against an illegal abortion and the doctor could be prosecuted. Provided the doctor is of the opinion, in good faith, that a woman meets the requirements for a legal abortion she will be allowed to terminate the pregnancy. Despite objections that the two signature requirement is in conflict with a woman's autonomy it is likely to remain to ensure abortion is a medical rather than a moral or political decision. The medical opinion of a doctor appears to be a mere formality, in the first trimester of pregnancy, as almost all women in the first trimester of pregnancy, fulfil the criteria of the Abortion Act. A foetus is not dependent on its father in any way once conception has occurred. The father cannot force an abortion or insist that a woman carries the foetus to term. To allow the father to dictate what happens inside a woman's body after conception would limit the woman's freedom to the point that she would just be a baby container. Human Rights support the woman's right to privacy and does not acknowledge the foetus' right to life. From conception to birth the foetus is the sole responsibility of its mother. Once the child is born the father becomes financially responsible, even if he does not want the child or takes no active part in the child's upbringing. This is not necessarily in the best interests of either parent or the child but a way of preventing society as a whole paying for the upkeep of fatherless children. Stephen Hales refers to child rearing and child support as ‘future duties'. He states that a woman can choose whether to accept these duties or not by electing to terminate the pregnancy. A man has no such right and, if a woman continues the pregnancy, a man will ultimately be financially responsible for the resulting child. A man does not have to be consulted at any point in the decision making process. In Hales' opinion a woman's choice to keep a child against the father's wishes is a ‘selfish unilateral decision' which takes into account only her motives and desires. If a woman has a minimum of twelve weeks to decide if she wishes to have the child the man should be allowed the same amount of time to decide if he wants to be a father. For equality of rights, Hales suggests that a man does not have to consult a mother and she cannot veto his final decision to have a ‘social' abortion. Hales argues that a woman's burden is only for nine months whereas a man's (financial) burden is eighteen years which is twenty-seven times longer. This appears to completely ignore the fact that the main 'burden' of childrearing usually falls to a woman. Her responsibility does not end when the child is born, unless she gives a child up for adoption, when both her and the father's responsibilities are transferred to another legal parent. If a woman has child rearing responsibility, equity can only be achieved by a man accepting financial responsibility, according to Hales. It does not seem equitable that a man's right to decide he does not want a child can be overridden by a woman who has the opportunity to change her mind long after conception. Reproduction is a joint biolog
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