Jurisprudentially Challenged

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Abortion in the Legal Sense: Special Situations III

·       SSELECTIVE REDUCTION – S5(2) This section specifies that Abortion Act grounds apply equally to selective reduction (where one or more foetus is destroyed) Social Ground (S1(1)(a)) causes no issues, however, improving the chances of survival of the remaining foetus is not covered by a literal interpretation of S1. Such abortions require a more flexible approach THE LIVING ABORTUS According to current law, if a foetus is born alive following an abortion, it will have an existence separate from its mother and she cannot insist on its destruction. Although some issues are created by the existence of artificial wombs, Judith Jarvis Thomson argues that there is no right to secure the death of an unborn child born in one of these wombs.

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Abortion in the Legal Sense: Special Situations II

CONTRACEPTION AND ABORTION

According to Glanville Williams, since legislation is silent on the meaning of miscarriage there is nothing to prevent the courts interpreting the word miscarriage in a way that takes into account of customary and approved birth control practices,

Attorney General

The AG states that words should have been used in their popular or ordinary or natural sense. The settled medical opinion is that pregnancy occurs when the fertilised egg implants not where the sperm fertilises the egg

Smeaton

The case established that the morning after pill is not an abortifacient because:

(1) Miscarriage is not defined by OAPA and should be used in the ordinary sense

(2) Pills/IUDs and other contraception might also involve some criminal offence then, and so 4.5 million women would be guilty of crime

(3)Complying with Abortion Act conditions would delay the use of the morning after pill making it less effecting and so increase the number of actual abortions

 J. Keown

Keown criticises Smeaton decision, and disputes the existence of a medical consensus as to when pregnancy begins and when a miscarriage is therefore procured. Keown also goes to suggests judge placed too much emphasis on social consequences of finding that the morning after pill is an abortifacient.

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Abortion in the Legal Sense: Special Situations I

PATIENTS WHO LACK CAPACITY

(1) Adults

Abortion is not a special case for which court approval is necessary.

The Mental Capacity Act 2005 states that court approval is not necessary as long as the abortion is in her best interest, taking into account her values, beliefs and feeelings.

(2) Children

Girls who are 16 or 17 year olds have the capacity to consent, and their consent is valid as they are adults. According to the case of Axon, girls under 16 who meet the Gillick competency test can also give valid consent to abortion without their parents consent or knowledge.

In Re:R it was determined that where girls are not yet Gillick competent, their decisions will normally be taken by their parents, but are subject to the possibility of being overridden by the courts if it is judged not to be in the child's best intentions.

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Abortion in the Legal Sense: The Human Rights Act

The Human Rights Act

Vo v France According to Vo, there is no EU consensus on the moral status of the foetus, only it’s capacity to become a person that it should be protected as a matter of human dignity, but that this did not make it a person with a right to life.

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Abortion in the Legal Sense: Third Party Rights

Third Party Rights: Men's Rights

Paton v Trustees of British Pregnancy Advisory Service, Paton v UK According the case of Paton, the judges rejected a man’s injunction to restrain the defendants from terminating his estranged wife’s pregnancy because, as they stated, the Abortion Act gives "no right to a father to be consulted in respect of a termination of a pregnancy"

Paton took the case to the European Commission of Human Rights, and the Commission found that the pregnant woman’s right to respect for private life prevailed over his right for private/family life

So the woman's right to private life, i.e. her decision to terminate or not to terminate prevails over the third party's right to private and family life.

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Abortion in the Legal Sense: Other Restrictions on Access to Abortion

OTHER RESTRICTIONS UPON ACCESS TO ABORTION

(1) Personnel Terminations can only be carried out by registered medical practitioners only, therefore terminations carried out by nurses or by the women themselves would be unlawful.

However, the abortion pills in terms of causation, would then render that the person who takes the pill is the principal cause of the pill’s consequences (i.e. it would be the woman taking the pill who would have carried out the termination). But the issue of women taking the pill was not considered by the courts, but according to the case of Royal Colleges of Nursing v Dept. of Health and Social Security nurses can be supervised by a registered medical practitioner

By analogy, women’s own involvement could be justified if they are supervised if they retain responsibility

(2) Conscientious Objection (S4) Medical personnel who are taking part in treatment administered in a hospital have a right of conscientious objection to participation in the provision of abortion services (Janaway v Salford HA).

Furthermore, doctors are not legally obliged to publicise their objections (Saxby v Morgan) and as a result it is unfortunately possible women can mistake GPs lack of cooperation as an indication of ineligibility, and thus delay seeking another opinion, or do not seek another opinion.

Any delays caused by the clause will primarily effect women who are dependent on NHS funding, because private abortion clinic doctors obviously don’t have a conscientious objection.

Objection is also becoming a more common thing among medical students according to a survey by Gleeson who states that "it is possible that a shift in attributes towards abortion is occurring that may affect future abortion provisions".

(3) Places According to S1(3) abortions must be only carried out in an NHS hospital to be legal. However, the abortion pill means that there is no clinical reason why medical abortions have to take place in a hospital.

The drug acts for up to two days  and as a result women are routinely sent home after being merely observed for a couple of hours, this leads to the conclusion that the "treatment" of abortion is only the taking of the pill.

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Abortion in the Legal Sense: The Law on Abortion IV

(b) THE GROUNDS FOR ABORTION continued

The time limit under S1(1)(a) [The social Ground] For the purposes of the act and for the time limits to apply (i.e. that abortion must take place within 24 weeks), it’s important to know the moment pregnancy begins however, such a fact is near impossible to determine. The conventional dating method is to treat first day of pregnant woman’s previous period as relevant start day, where any ambiguity must be construed in favour of the defendant.

However, again, women still do not have right to abortion up to 24 weeks, rather it is that the doctors have power to carry out terminations legally if grounds are met. Further more, the medical discretion means an earlier time limit than that specified in the statute and women may encounter difficulties in obtaining an abortion under this ground late into the second trimester

Kirklin - According to the Kirklin, biomedical imaging creates an illusion sowing foetal movements, and as a result calls for reviewing the legal time limit for abortions. This is because a 24 week time limit assumes deviation from assessment of when foetus might be viable (where a concept of viability is confusing). - Kirklin also states that deciding on a time limit also assumes we can accurately date the duration of pregnancy, but doctors say a margin of error to diagnose gestational age is = one week

Cut off points in other countries is a political decision rather than a biologically determined fact

The Foetal Abnormality Ground - Only about 1% (approximately) of all abortions under this ground take place as they depend on two doctors agreeing that a particular handicap is serious enough and that the risk of materialising is substantial therefore giving doctors flexibility in determining whether or not an abortion is justified under this ground. - There is also no definitive list of conditions which justify abortion or of conditions which do not. - Unfortunately, as a result there are vast discrepancies between different doctors definitions of serious handicaps. - However, under S1(1)(d) there only needs to be a substantial risk of handicap in the doctor’s opinion

Simo Vehmas Vehmas argues that once a woman has decided to have a baby, it is not legitimate for her to reject a particular foetus on the grounds that it does not have the characteristics she requires. He states that “the parents commitment to care for their child has to be unconditional”.

Sally Sheldon and Stephen Wilkinson Sheldon/Wilkinson suggest that the only logical justification for allowing women to terminate pregnancies where the foetus is disabled is to protect the women’s own interests, which would make this ground indistinguishable from S1(1)(a), i.e. the social ground. However they argue that maintaining the foetal abnormality as a separate ground might desirable to allow for small percentages of abortions in the 3rd trimester to prevent backlash against proposals to remove S1(1)(a) time limits.

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Abortion in the Legal Sense: The Law on Abortion III

(b) THE GROUNDS FOR ABORTION

S1 Abortion Act S1 provides the grounds for abortion, i.e. abortion is legal where:

(1) that the pregnancy hasn’t exceeded 24 weeks and continuation of it would involve risk greater than if its terminated, of injury (2) that the termination is necessary to prevent grave permanent injury (3) that the risk to life of the pregnant woman (4) that the substantial risk to the child suffering from physical/mental abnormalities as to be seriously handicapped

Would Unsuccessful Terminations mean that an offence has been committed? S1 suggests that defence is only available when a pregnancy is terminated, i.e. it is still illegal for a doctor to carry out a termination procedure where the grounds of S1 have not been met, and that if the pregnancy fails to terminate, then an offence has been committed.

However, in the case of Royal College of Nursing v Dept. of Health & Social Security the majority held that the idea was absurd and not the actual intention of  parliament. Therefore it is unlikely that the doctor who unsuccessfully attempted to terminate a pregnancy would not have a defence under OAPA

 The Need for Medical Approval The act doesn’t entitle women to decide to terminate even if statutory grounds are met nor does it specify they have to be met, only that two doctors opinions must state that an abortion would be lawful.

This means that the legality of the abortion exists on whether the doctors have formed an opinion in good faith that the woman’s case fits within statutory grounds not that those grounds exist

R v Smith In Smith, the ratio states that the doctors performing abortions will therefore only fail to be protected by the defence in S1(1) if there is evidence that they did not act in good faith.

There is thus evidence that the statute’s purpose is to protect medical discretion rather than women’s rights, which is evident in The Paton case –  the case states that under the 1967 Act it is doctors not pregnant women who pear principal responsibility for deciding whether a pregnancy should be terminated.

Sally Sheldon Sheldon criticises the Abortion Act’s delegation of decision-making to doctor’s, arguing termination is not necessarily a question requiring medical expertise.

 The House of Commons Report, 2007 The report actually goes on to state that the 2 doctors rule is unnecessary and delays access to early abortions.

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Abortion in the Legal Sense: The Law on Abortion II

(2) The Abortion Act 1967

(a) BACKGROUND The act was not intended to give women the right to abortion, but to combat high mortality rates form illegal abortions and successful prosecutions were rare of those. Abortion was historically not legalised in order to enhance women’s reproductive autonomy; the act’s principal purpose was to enable doctors to act lawfully to assist women.

R v Scrimaglia The ratio in Scrimaglia states that one of the objects of the '67 act was to try to actually get rid of backstreet insanitary operations and reduce those high mortality rates associated with terminations.  Abortion, however, continues to be prescribed by the OAPA 1861, but the Abortion Act provides that abortion will be lawful, and no offence will be committed if the criteria are met.

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Abortion in the Legal Sense: The Law on Abortion I

(1) Pre 1803 Abortion was governed by the common law (i.e. judicial decisions). Bracton According to Bracton, it was a criminal offence only after quickening, the moment when the woman can first feel the foetus moving inside her

(2) Offences Against the Person Act 1861, S58 & S59 The OAPA 1861 stated that someone must unlawfully do something with a poison/instrument/noxious thing, with intention to procure a miscarriage. The minimum life sentence for a woman who intentionally procures her own miscarriage is life imprisonment.

R v Bourne 1937 According to the ratio in Bourne, it would be possible for an abortion to be carried out lawfully, not only where the pregnant woman was in imminent danger of death but also where the effect of carrying out the pregnancy to term might be to make a woman a physical or a mental wreck.

However, historically doctors were prepared to interpret "physical/mental wreck" widely to include distress; these doctors risked prosecution so they charged high fees, and therefore abortions were inaccessible to the majority of women, and only those who could afford to pay were able to access termination procedures.

There were almost 100,000 backstreet abortions each year before 1967 with excessively high mortality rates. These terminations were extremely dangerous. So much so that the UK law had to legalise abortion mainly to combat the high mortality rates from backstreet abortions.

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Abortion in the Legal Sense: The Ethics of Abortion Analysis III

(3) A COMPROMISE POSITION

A compromise position in which abortion is permitted, but only in certain restricted circumstances which are designed to offer the foetus some protection.

This is where a middle ground exists which acknowledges that both the foetus’s potential personhood is a good reason to afford it some protection and that the pregnant woman has a legitimate interest in self determination - it provides the protection of woman’s right to terminate only in certain circumstances (e.g. time limits) - it is consistent with almost every country’s abortion regulations

Dworkin Dworkin argues that most people share a deep belief in the sanctity of human life and so regard abortion as a morally serious matter but they also do not believe that the foetus has exactly the same status as a person. Otherwise it would be impossible to justify any exceptions to the prohibition of abortion e.g. that it might be legitimate if the pregnant woman’s life is in danger, or she is pregnant because of rape

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Abortion in the Legal Sense: The Ethics of Abortion Analysis II

(2) AN EMPHASIS UPON THE PHYSICAL INVASIVENESS OF PREGNANCY: and upon the degree of self sacrifice which would be forced upon women if they were compelled to continue their unwanted pregnancies.

Eileen McDonagh To be pregnant is to be inhabited… to be occupied - Restrictions on women’s access to abortion effectively compels them to exercise a wholly unprecedented degree of self sacrifice - the state doesn’t have the right to force the woman to continue in this relationship of unparalleled intimacy without her consent - even where a person creates a risk, it does not follow that the person consents to injuries occurring subsequent to the risk

Judith Jarvis Thomson Even if we assume that the foetus is a person, it might be argued that pregnant women have the right to use self defence in order to protect themselves from the physical invasion of an unwanted pregnancy.

Reva Siegel According to Siegel, abortion is a more serious/difficult moral choice than carrying a pregnancy to term, where motherhood is an easy/natural choice for women while rejecting motherhood is seen as unnatural and selfish.

Roaslind Hursthouse Hursthouse contends that motherhood is intrinsically good, disputing the idea that women have the right to decide for themselves whether they want to become mothers

However the rather dated virtue ethics argument states a woman who rejects motherhood without a compelling or virtuous reason is acting wrongly.

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Abortion in the Legal Sense: The Ethics of Abortion Analysis I

THE ETHICS OF ABORTION I

In what circumstances is it legitimate for a woman to terminate an unwanted pregnancy?

There are 3 types of analysis:

1. AN EMPHASIS ON THE MORAL STATUS OF THE FOETUS: It's potential personhood

Finnis Conception is at the moment which a new individual comes into being and therefore acquires personhood

Warren while a foetus is human, it is not a person. Person hood needs consciousness, self motivated activity, reasoning and self awareness

Philippa Abott However, Abott argues that Warren's test would exclude disabled children and adults

Don marquis What makes killing adult human beings wrong is that it deprives them of everything they might value in the future. By analogy, therefore killing of foetuses deprives them of everything they might value in the future, so it’s just as wrong as killing an adult human being

Julian Savulescu Savulescu argues that contraception or deciding not to have sex may deprive a possible future person of a future of value, but that does not mean that either is wrong to do.

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Embryo and Stem Cell Research: Creating Embryos without Consent

Creating Embryos without Consent

The 2008 act reforms the 1990 act create three exceptions to the need to obtain consent to the use of an embryo in a research project:

(1) Parental Consent Schedule 3 provides that provided parental consent conditions are met someone with parental responsibility can give consent to the use of their child’s cells to create an embryo for research purposes

(2) Lack of Capacity Similar provision for adults who lack capacity: provided it would not be possible to carry out the research on cells taken from people who can give consent, it may be possible to use cells from an adult who lacks capacity in stem cell research involving the creation of embryos.

(3) Pre-Act Embryos If the person’s cells were stored before the act came into force and they have since died, these stored cells can be used to create an embryo provided there must be no evidence that the person would have objected to the use of their cells in this sort of research and there is agreement from someone who stands in a qualifying relationship with them.

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Embryo and Stem Cell Research: Consent

Embryo and Stem Cell Research: Consent

Consent With three limited exceptions, the gamete or tissue providers must have specifically donated them to research; without consent even if the providers do not want them to be stored or donated to others, the embryos must be allowed to perish.

Under Schedule 3.2 of 1990 Act Consent must be in writing and can be withdrawn under Schedule 3.4 at any time until the embryo has been used in the project of research. Schedule 3.3 provides the person giving consent must have been given a suitable opportunity to receive counselling and must be provided with such relevant information as is proper.

The following issues are addressed as follows:

(1) The Consent issue on Indefinite Stem Cell Line

It’s must be made clear to potential donors that any stem cell lines created may continue indefinitely and be used in many different research projects.

(2) The Consent Form HFEA and the Medical Research Council have contributed towards a standard consent form for the use of embryos in stem cell research which stresses among other things that the couple will not benefit medically or financially from any discoveries made during research on their cells.

(3) The Stem Cell Bank UK Stem Cell bank receives a sample of every stem cell line recovered by researchers. The immortality of tem cell lines and their centralised banking means that eventually it is possible that world-wide high quality embryonic stem cell lines will be sufficient and it won’t be necessary to create more.

There is a possibility of openly sharing stem cell lines through out the world means that it would be desirable but impractical to have greater regulatory harmonisation, especially as there is no global consensus on the moral status of the embryo.

There is also the possibility of impossibility to satisfy the Act’s criterion that the use of embryos must be necessary for the research purposes might arise. If scientists could carry out exactly the same research on an existing stem cell line, it would not be possible to establish that the use of further embryos was necessary.

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Embryo and Stem Cell Research: Purposes of Research

Purposes of Research: Stem Cell Research and Therapeutic Cloning

Schedule 2 of Human Fertilisation and Embryology Act 1990 The Schedule states that further restriction on use of embryos in research is that they can necessarily only be used for certain principal purposes including but not limited to: - increasing knowledge about serious disease or other serious medical conditions - developing treatments for serious disease or other serious medical conditions - increasing knowledge about the causes of miscarriage - increasing knowledge about the development of embryos - promoting advances in the treatment of fertility

The following can be derived from the Schedule:

(1) The “Necessity” Principle Licenses are only granted under the Schedule if the license committee is satisfied that the research is "necessary or desirable" for one of these principal purposes and that the proposed use of embryos is necessary – where the license committee must be satisfied that research could not be done without using human embryos

(2) Extending research purposes The Schedule builds in the possibility of the statute’s revision by regulation that can extend the purposes for which embryo research may be carried out – this is an attempt to future proof the legislation in case unanticipated research purposes may subsequently emerge.

(3) Artificial Gametes Since its possible to create any human cell type from a stem cell line, its possible to create reproductive cells/gametes. 

According to the Hinxton Group it is likely that human eggs and sperm will be generated from stem cell lines during the lifetime of the amended 1990 Act. The 2008 amendments specifically allows artificial gametes to be created for research purposes, but allows only “permitted embryos” and “permitted eggs and sperm” to be used in treatment services. (4) The need for eggs In 2005, the HFEA carried out a public consultation on whether egg donation or egg sharing (where women receive reduced price or free IVF in return for donating some of their eggs) for research purposes, and following it issued guidelines on the protections which should be in place to ensure that women who donate eggs to research either entirely altruistically or via a egg sharing programme receive proper information and the opportunity to receive counselling.  Direct payment is prohibited but women can be compensated for expenses, which are directly attributable to the donation.  Radhika Rao Rao draws attention to the fact that everyone else involved in stem cell research is paid, if the researchers and regulators are paid for their services, why should women be the only ones expected to provide their services for free?

(5) Regenerative medicine Its been suggested that therapeutic cloning if successful will lead to a new sort of regenerative medicine:

John Harris In an aging world, even death might be no longer inevitable. Could we significantly extend life spans if cloned human embryonic stem cells appropriately reprogrammed could be used for the constant regeneration of organs and tissue?

This leads to complex ethical issues: -such treatment would be expensive and might initially be available only to a small minority of very rich people, raising issues of distributive justice - what effects could significantly increased lifespan have for the world and its resources? - but finding cures for diseases like cancer and heart disease is self-evidently desirable. Just as the cures for infectious disease increased life-spans in the 20th century, we should not be surprised if average life-spans continued to increase as medical knowledge becomes more sophisticated

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Embryo and Stem Cell Research: Restrictions on Embryo Research

UK Restrictions on Embryo Research: The Sources of Embryos

(1) Research might be carried out on embryos left over from an IVF treatment, happens through the following two ways:

- i - During IVF cycle its common for couples to produce more embryos. Spare embryos which are suitable for future use are frozen. There are often embryos of poor quality which are unsuitable for use or freezing. They are either donated to research or they will have to be discarded.

- ii - A couple may decide they no longer wish to store their frozen embryos, these can be destroyed, donated for the treatment of others or donated to research.

Sarah Franklin Spare embryos have a dual reproductive identity – created in order to become children, but once they are spare or leftover, they have a different potential. However, many couples feel donating leftover embryos is a way of giving something back as IVF treatment is dependent on embryo research

(2) Embryos could be specifically created for use in research.

This is particularly necessary if and where scientists want to create embryos with specific characteristics (such as genetic disease) by using cells taken from people with particular genetic conditions to create embryos – this makes it possible to carry out disease specific research.

House of Lords Stem Cell Research Committee The House of Lords Committee suggests that where the initial intention is to create a baby the embryo is less instrumentalised than where the sole intention is to create an embryo in order to use it in research.

Erik Parens Parens however argues that it is unusual to base an entity’s moral status upon the intention of its creator – “If what something is obliges us to treat it some ways and not others, how it came to being is usually thought to be morally irrelevant.”

Schedule 2.3.1.a Unlike many other countries, in the UK use of spare IVF embryos and the creation of research embryos are both permissible. But it doesn’t mean scientists are free to create as many as they want – although there is no numerical limit on creation for research purposes in the Act, the HFEA’s license committee must be satisfied that the creation of embryos is necessary.