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Published: Fri, 02 Feb 2018
Embryo and foetal rights
(Embryos are “…not, strictly speaking, either ‘persons’ or ‘property’, but occupy an interim category that entitles them to special respect because of their potential for human life”)
This essay will address the various contentious issues relating to Embryo and Foetal rights in both domestic and international jurisdictions, including Abortion and Foetal Rights, Unborn Child Destruction, Duty of Care to the Unborn, and Pregnant Women and Consent.
In some jurisdictions, legislation sometimes tries to determine the right to life of the foetus from the moment of fertilization. Such legislation regards the foetus as a live person whose legal status is equal to that of any other member of the human race.
The 1978 American Convention on Human Rights states, in Article 4.1,
“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.”
Of the 35 member nations of the Organisation of American States who ratified the convention, it is binding for only 24 of those member states.
In 1983 the “Pro-Life Amendment” (The eighth amendment), was added to the Constitution of the Irish Republic by demand through a national referendum. The amendment recognises the “right to life of the unborn”.
In Germany the Federal Constitutional Court has guaranteed through the constitution, “the right to life from conception”, In 1993 the Court held that parliament has the discretion not to punish termination of pregnancy during the first trimester, provided that the mother agrees to undertake counselling designed to discourage abortion and inform the mother of the “right to life of the unborn”. This intermediate decision was taken after the reunification of East and West Germany in 1990 in an attempt to merge the laws of both the East and the West. The laws of other governments do not recognise unborn foetuses as legal persons.
Unser s233 of the Criminal Code of the laws of Canada, a foetus is recognised as a “human being … when it has completely proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it has an independent circulation or the navel string is severed.”
There is strong opposition in the West, to legal abortion based on a concern for the rights of the foetus. Similarly, there are many ‘pro-choice’ organisations who oppose foetal rights, even when they do not impinge directly on the abortion issue, because they see this as setting a precedent towards restricting abortions.
In all jurisdictions, both domestic and international, the legal issues relating to Embryo and Foetal rights are viewed as contentious and are often the subject of intense media scrutiny and proposed legislative amendments. Issues at the forefront include abortion and foetal rights, unborn child destruction, duty of care to the unborn and also pregnant women and consent.
Butterworth’s Australian Legal Dictionary describes an Embryo as a “fertilized human ovum”: See The Marriage of A and B . It is considered to be an embryo from the point of conception up to around the first seven weeks. The same dictionary goes on to further describe a foetus as; “an unborn child, which is considered to be , the gestation period from the time of conception to the time immediately prior to birth”.
In 1987, during the Congregation for the Doctrine of Faith, the Vatican pronounced that:
“The human being is to be respected and treated as a person from the moment of conception; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life.”
In Australia, the Church and the State are opposed to each other because there is no right which a Court can offer protection for a foetus or an embryo until it is born and has a separate life outside the womb. Until it has a separate existence from its’ mother it is not considered in law to be a viable person; See Attorney-General (Qld) (Ex rel Kerr) v T. The courts making decisions under the Family Law Act 1975, have no power to make any orders for the protection of the rights of an embryo or a foetus as it has no rights until it is born. However, because the foetus comes into being out of the union between a man and a woman, the courts are empowered to make orders about it; see In the Marriage of F. Thus far the courts have declined to exercise their discretion in favour of making such orders.
There is an ethical debate known as the “Stem Cell Controversy” which is the research concerning the creation, usage and destruction of human embryonic stem cells. Contrarily, medical practitioners in the field of stem cell research argue that it is necessary to pursue embryonic stem cell research because emerging technologies resulting from the research could produce significant medical benefits, and that excess embryos created for in-vitro fertilisation could be donated and used for the research.
Pro-life movement advocates for the protection of human embryos, have argued that this practice will lead to reproductive cloning, and will therefore reduce the value of human worth. The resulting debate has prompted authorities world wide to institute legal frameworks. This also highlights the fact that embryonic stem cell research poses an ethical and social challenge.
Feticide or foeticide is an act that causes the death of a foetus. From a legal perspective, “foetal homicide” refers to the deliberate or incidental killing of a foetus due to a criminal act, such as a hit or a blow to the abdomen of a pregnant woman. From a medical perspective, feticide means the destruction of a foetus, which could be for example, as the first phase of a legally induced termination of pregnancy. Foeticide is not an instance of death resulting from natural causes, or through spontaneous abortion of a pregnancy where the life of the foetus was unable to be preserved artificially ex utero. Foetal homicide is considered to be a serious criminal offence in many jurisdictions; for example, in India, the term foeticide refers to the act of killing female foetuses so as to secure male children in an effort to reduce the overall number of children in the family.
In the United States, the debate over foetal rights goes on. This is an extremely contentious issue which is vigoursly fought over every year by pro-life and pro-choice advocates each vying for the upper hand. Recent debate has focused on foetuses injured or killed by acts of violence against pregnant women. There are a number of legal approaches to deal with such violent acts which may involve either civil action through the courts for wrongful death or by increasing criminal penalties for violent crimes against a pregnant woman. In these cases, legal action has focused on the harm or injury sustained by a pregnant woman and the subsequent loss of her pregnancy, but does not take into account the rights of the foetus. Another more controversial approach to prosecuting an attack on a pregnant woman involves defining the foetus as a person under proposed laws against foetal homicide or “foeticide”. There has been sustained debate concerning such legislation with various stakeholders proposing such names such as the Foetal Protection Act, the Preborn Victims of Violence Act or the Unborn Victim of Violence Act. Pro-life advocates, who support these proposed Acts, say that both the lives of the pregnant woman and the foetus should be protected at any cost. They further assert that foetal homicide laws justly criminalize these cases and provide an opportunity to protect the unborn foetus and the mother. Those on the opposing side feel that laws to protect a foetus could infringe upon a woman’s right to terminate her pregnancy at will.
In Australia focus on foetus rights gained national attention in 2001 when a young Sydney woman lost her unborn child, Byron, seven months into the pregnancy, after she became the victim of a road-rage attack. Since then, after an increase in cases of foetus death where the intent was on killing the unborn child, new legislation, known as ‘Byron’s Law’, was introduced in NSW.
“Pro-choice advocates argue that such laws would grant a foetus legal status distinct from the mother thereby possibly creating an adversarial relationship between the mother and her child. They are also concerned that the laws could be interpreted to apply to a woman’s behaviour during her pregnancy (such as smoking, drinking or using drugs). They prefer criminalizing an assault on a pregnant woman and recognizing only her as the victim”.
In April of 2001 the US House of Representatives voted in favour of introducing a bill titled The Unborn Victims of Violence Act of 2001 which provided harsh penalties for injuring or killing of an unborn foetus during the acting out of a federal violent crime. The Bill provided that punishments for harming a foetus would be treated separately from those imposed for any harm done to the mother; for example, a person who kills both a pregnant woman and the foetus could be charged with two separate counts of homicide. Lawful terminations of pregnancy conducted with the permission of the mother are exempted from prosecution under the bill. In 2001 at least 24 states had laws providing some degree of foetal protection.
In April of 2004, Congress enacted the Unborn Victims of Violence Act 2004 which recognizes a “child in utero” as a legal victim, if that person is killed or injured during the performance of any of the 68 existing federal crimes of violence. The Act defines “child in utero” as “a member of the species “Homo Sapiens”, at any stage of development, who is carried in the womb”. The acts defined include some acts that are federal crimes irrespective of where they occur (e.g., certain acts of terrorism), crimes in federal jurisdictions, crimes within the military system, crimes involving certain federal officials, and other special cases. There are 35 states in the US that recognize foetal homicide. Twenty five States apply the principle throughout the period of pre-natal development; Ten States establish protection at a later stage, which varies from state to state; for example, it is a determination of the California Supreme Court to treat the killing of a foetus as homicide, but the Court does not treat the killing of an embryo (prior to approximately eight weeks) as homicide. Some other states do not consider the killing of a foetus to be homicide until the foetus has reached a stage of viability. Illegal abortion may be considered “foeticide”, even if the pregnant woman consents to the termination.
It is submitted that enhanced laws punishing violent acts against pregnant women that harm the foetus are preferable, but further submit that granting a foetus legal rights independent of those of the mother could be interpreted and applied in ways resulting in the denial of the woman’s right to a legal abortion.
Abortion And Rights Of The Foetus
In cases where no emergency exists, and a foetus is capable of being born alive and living independently outside the womb, it is possible that abortion could be murder or child destruction. Unless there are specific medical emergencies or where the mother is in immediate danger, the law is generally unclear regarding late-term abortions. In some jurisdiction there are guidelines for emergencies, such as where the mother is in immediate danger of severe mental or physical harm. In these situations it would seem illogical to set a time limit. Rather the question is one of fact to be determined by the court on the evidence before it and taking into account the specific circumstances of that case. In the Northern Territory and South Australia it is a requirement that the opinion of at least one doctor is required for termination of pregnancy in an emergency.
The question of whether the foetus has a right to live has now been considered in several cases. Until the foetus has lived independently outside the mother’s body it is not considered to be a person. In the case of F v F, where, “..a husband applied to the Family Court for an injunction to prevent his estranged and pregnant wife from terminating the pregnancy of their prospective child. He argued, among other things, that the foetus had a right to protection against abortion, and that he could enforce that right on its behalf”.
The court, after considering precedent, made the following statements:
“A Court cannot make ethical judgments – it is concerned with legal rights. Its task is to interpret and apply the law, not particularly moral or ethical precepts”.
“The foetus has no right of its own until it is born and has a separate existence from its mother. – This was held by the English case of Paton v British Pregnancy Advisory Service. Note also the case of K v Minister for Youth and Community Services, where an application was sought to be brought in the name of a foetus to prevent an abortion”.
Street CJ said;
“..I am not, as at present advised, satisfied that the unborn child or foetus has the requisite status to participate as a party in proceedings of a character of those before the equity division or in those such as are sought to be brought before this court”.
In F v F, the Court also addressed the right of third parties to decide whether an abortion will be performed. The Court followed those cases mentioned in determining that a father has no right to stop the mother having a legal abortion (at 77-438):
“.. To grant the injunction would be to compel the wife to do something in relation to her own body which she does not wish to do. That would be an interference with her freedom to decide her own destiny”.
Unborn Child Destruction
“There is a period where a child may, for the purposes of criminal law, be neither a foetus whose destruction is abortion, nor a legal person whose destruction is murder. Some may consider this the period from when the child is capable of being born alive, others require that the child be in the process of being born”.
The offence of child destruction may arise where a foetus is destroyed by abortion. The intentional killing of a foetus “killing unborn child” is an offence which is covered in the Northern Territory, Queensland and Western Australia. This offence carries a maximum penalty of life imprisonment for preventing a child being born alive where a person is about to give birth to a child. See Criminal Code Act (NT), s 170.
In the UK Child destruction is a charge that is rarely used. It formed part of the Infant Life Preservation Act 1929 (UK). It was then laid down in the Crimes Act 1958 (UK):
“Any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act unlawfully causes such child to die before it has an existence independent of its mother shall be guilty of the indictable offence of child destruction. Evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born.”
A recent, relevant case in the UK is that of Maisha Ahmed Mohamed.
The Manchester Crown Court found Mohamed guilty of child destruction, after she gave several varying explanations as to what had happened to her baby. What is known is that at 28 weeks a foetal heart rate was detected at a check-up. However at a 34 week check-up Mohamed reported to staff she had bled and not felt movement for approximately a week. Upon further investigation by medical staff it transpired that she was no longer pregnant and that the foetus had disappeared. Mohamed was sentenced on the 24th of May 2007, and received 12 months imprisonment, suspended for 12 months. This was the first time in the Greater Manchester area that a person had been convicted of Child destruction. The body of Mohamed’s child has never been found.
In the United States, the “born alive” rule is a legal principle that holds that various aspects of the criminal law, such as the statutes relating to homicide and to assault, apply only to a child that is “born alive”. Recent advances in the state of medical science have led to court decisions that have overturned this rule. The born alive rule was originally a common law rule in England that was supplanted to the United States. Its was originally based on the state of medical science at the time and because of the rate of still births and miscarriages, it was not possible to determine whether a child was a living being at any given time before birth. As it was not possible to determine whether a child in the womb was in fact alive, and would be viably born, had serious ramifications with respect to the laws relating to assault and to homicide. (It is not possible to kill a child that has already died, for example.) Thus the event of a live birth was considered to be the point at which it could be reliably determined, that the various laws applied. Since then, advances in the development of medical science, including ultrasonography, foetal heart monitoring, and foetoscopy, have subsequently made it possible to determine that a child is alive and viable within the womb, and as such many jurisdictions, in particular in the United States of America, have taken steps to supplant or abolish this common law principle. At the end of 2002, there were 23 states in the USA which to a lesser or greater extent still employed the rule. Over time the rule has gradually be dispensed with case by case and from statute to statute, rather than wholesale. One such landmark case in the United States with respect to the rule was, Commonwealth vs. Cass, in the State of Massachusetts, where the court held that the stillbirth of an eight-month-old foetus, whose mother had been injured by a motorist, constituted vehicular homicide. By a majority decision, the Supreme Court of Massachusetts held that the foetus constituted a “person” for the purposes of the Massachusetts statute relating to vehicular homicide. It was the opinion of the justices that;
“We think that the better rule is that infliction of perinatal injuries resulting in the death of a viable foetus, before or after it is born, is homicide.”
Throughout the United States several courts have held that it is not within their charter to revise legislation by abolishing the born alive rule, and have concluded that such changes in the law should come from the legislature. In 1970 in Keeler v. Superior Court of Amador County, the California Supreme Court dismissed a murder indictment against a man who had caused the stillbirth of the child of his estranged pregnant wife, stating that;
“The courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings… Whether to extend liability for murder in California is a determination solely within the province of the Legislature.”
Several jurisdictions have, as a consequence, revised their legislation to explicitly include deaths and injuries to foetuses in utero.
In general, the policy has been that anyone who attacks or causes the stillbirth of a foetus should be punished for foetal destruction in the same way as anyone who attacks a person and causes their death. Some jurisdictions have simply expanded their existing legislation to explicitly include foetuses in utero. Others have created completely new, and separate, criminal offences.
Duty Of Care To The Unborn
It has been held by the courts in Australia that a duty of care is owed to a foetus, although it is not yet legally a person, and therefore cannot bring an action in law until it is born.
In Hawkins v Clayton Justice Deane stated at 578;
“Indeed, a relationship of proximity can exist with, and a duty of care can be owed to, a class of persons which includes members who are not yet born or who are identified by some future characteristic or capacity which they do not yet have.”
Thus the harm caused before the foetus is legally a person, the right to sue for harm caused prior to birth, can be exercised once the foetus does become viable as a person. It therefore follows that a health carer for a pregnant woman owes a duty of care to both the mother and to the foetus. A duty of care may be owed to a foetus, even before it is conceived, where a health care worker should know or would be reasonably expected to foresee the possibility of harm. Examples of situations that would come under this category of events are the negligent cross-matching of blood leading to disorders of a foetus later conceived, the negligent giving of X-rays, and negligent genetic counselling; see Kosky v Trustees of the Sisters of Charity. Further examples of the duty to an unborn child are X v Pal and Hughes v Sydney Day Nursery.
It should be noted that since 2001 the doctrine of proximity is not a good law in Australia; and a duty of care being owed to a foetus may or may not arise, depending on circumstances.
“Wrongful Life” is a very complex area of law concerning unborn children. It is a term given to a legal action whereby a doctor or a hospital is sued for allowing the birth of a severely disabled baby to proceed. Usually it is the child and the parents who will sue the doctor or hospital for failing to provide sufficient information about the disability during pregnancy to enable the parents to make and informed decision whether to proceed to birth or not. See also, Harriton v Stephens and Waller v James; Waller v Hoolahan. It was argued that if the mother had been aware of this information, she would have terminated the pregnancy. The purpose of the litigation is to provide financial compensation for the disabled child and the parents.
Wrongful life occurs whereby a child, if born, would require significant attendant care and costs and would in all probability lead a terrible existence. In these cases, children of so-called ‘wrongful life’ births allege that the attendant medical practitioner should have advised the mother to terminate the pregnancy. Wrongful life is different from wrongful birth in that wrongful birth cases arise where the mother sues for being burdened with a disabled child.
The earliest well-known English case in this area is McKay v Esser Area Health Authority,where, “…during the early months of pregnancy a woman had contracted rubella. However, the condition was not diagnosed, and the child was subsequently born with a severe disability. The mother and the child sued the doctor, in negligence. The issue was whether the doctor owed a duty of care to the child and therefore should have advised the mother to terminate the pregnancy early. The court in considering the issue held that; first, the doctor had not caused the harm to the child; the disease had. The duty of care involved preventing the effects of the disease as much as could be reasonably expected, which involved advising the mother on the possibility of termination of the pregnancy. However, the duty of care did not extend to entitlement of the child to prevention from life itself as this is a principle repugnant to public policy. Therefore, the mother could claim compensation for the cost and burden of providing care for the child. As the child’s disability existed independently and prior to the doctor’s action, she could not claim damages for the disability”.
Similar issues have been recently argued before the High Court of Australia, in Harriton v Stephens and Waller v James; Waller v Hoolahan, which were both heard together. Both matters in The High Court were on appeal from the New South Wales Court of Appeal decision in Harrington v Stephens; Waller v James Et Anor; Waller v Hoolahan. The New South Wales Court of Appeal was divided on the issue, with a majority of two judges finding against the claimants and one judge finding for them. The High Court, by a majority of six to one, dismissed each appeal. Specifically, the questions for determination by the High Court were whether a wrongful life action constitutes a valid cause of action; and, if so, what damages are recoverable. The majority reasoning for dismissing the appeal centred on the finding that the alleged damage was not recognizable in law.
Pregnant Women And Consent
The emergence of modern technology which facilitates the examination of the foetus prior to birth can be said to represent the foetus as a human being. Thus, issues may arise regarding consideration of the therapeutic interests of a possible being, (the foetus) when a woman refuses treatment that may be medically detrimental to her foetus.
It is clearly evident from legal precedent that a pregnant woman retains her right to autonomy. The principle of Autonomy recognizes that individuals have a right to self determination. Society respects that individuals have the innate ability to make informed decisions about his or her individual and personal situation. Each individuals’ autonomy has become more important as social values have changed to define the quality of medical services in relation to outcomes that are important to the individual rather than to the medical provider. There is an increasing social shift from the “paternalistic” traditions of the past to embrace the increasing importance of the individual’s autonomy. By respecting the individual’s autonomy, this then, forms the basis for the individual to direct informed consent and participate as an equal partner in the individual’s health care. Autonomy can often be at odds with Beneficence when patients disagree with recommendations provided by health care professionals. Individuals’ knowledge of their condition or medical understanding enabling informed decision making may come into question during conflict resolution between Autonomy and Beneficence. “The role of surrogate medical decision makers is an extension of the principle of Autonomy”.
The common law has established that the foetus has contingent legal interests but has no rights at law until born. With regard to the criminal law, in R v King the court contemplated whether the death of the foetus could be considered grievous bodily harm to the mother and determined that it could. In 2005 the decision was codified in law (Byron’s law) by an amendment to the Crimes Act 1900 (NSW); s4, so that the definition of grievous bodily harm now includes the destruction of a foetus of a pregnant woman other than might be required during the course of a medical procedure. However, in spite of these legislative changes, and others like it, the contention over embryo and foetal issues and rights at law is not going to dissipate anytime soon.
Where public web sites have been used in foot-notes such as wikipedia, face book etc.. I have used the notation “NB – Personal Opinion Only” as these sites have no validity in law, are considered academically unreliable and are subject to change by bloggers.
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In the Marriage of A and B (1998) 13 Fam LR 798; 99 FLR 171
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In the Marriage of F (1989) 13 Fam LR 189
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X v Pal (1991) 23 NSWLR 26
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McKay v Esser Area Health Authority  2 All ER 771 (CA England)
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Waller v James; Waller v Hoolahan  HVA 16
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Pratt, Steve, ‘Pratt Tables Bill to Protect the Unborn Child’, Canberra Liberals, web page < http://www.canberraliberals.org.au > 6 December 2009
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Unborn Victims of Violence Act. < http://en.wikipedia.org/wiki/Unborn_Victims_of_Violence_Act > 7 February 2010.
Unreported at this time , however referred to in an article published by the Greater Manchester Police, ‘Mother of 3 sentenced for Child Destruction in Landmark Case,’ 24.05.07, web page < www.gmp.police.uk > 4 December 2009.
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Informed Consent-Autonomy, web page < http://en.wikipedia.org/wiki/Medical_ethics#Informed_consent > 8 December 2009
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