Beginnings of Life II

Question 1

R (John Smeaton on Behalf of SPUC) v SoS [2002]

Answer 1

PUC stands for the Society for the Protection of the Unborn Child. The claim was brought by this organization challenging the legality of the morning after pill.
The morning after pill works differently from the normal pill in that it prevents implantation. So it doesn’t prevent a fertilized egg, a zygote, from being formed. It prevents it from implanting in the womb lining. The argument was that that actually, therefore, fell afoul of the abortion laws and amounted to an unlawful termination.
So, the issue was whether this pill was actually contraception, or did it fall afoul, because it worked in a different way, of the abortion laws.
The result was against the interests of the Society, because the court found that the laws on abortion only catch termination of an established pregnancy, which they defined as post-termination. So, this morning after pill is contraception.

Question 2

Section 73, Sexual Offences Act 2003

Answer 2

Makes it clear that prescribing in order to treat sexually-transmitted diseases and also to prevent pregnancy does not involve any criminal activity on behalf of doctors.

Question 3

A Local Authority v Mr and Mrs A [2002]

Answer 3

This is a case on capacity involving contraception. It involved a couple who had quite low IQs and a low level of intelligence. The issue was whether or not the woman could be prescribed contraception; could she give her consent to it? What the court said was that capacity is “decision specific” and the question was whether or not the patient understood the proximate issues – the general issues surrounding conception. For example, would the woman know that without contraception she would get pregnant? If that were so, then she could give consent. So there was no need to have a higher level of understanding concerning the realities of childbirth and the problems of bringing up children, etc.

So in terms of capacity, it is an understanding in broad terms of the nature of the treatment, rather than a higher level of understanding, that is required.

Question 4

Section 15, Mental Capacity Act

Answer 4

Technically you don’t need this if there is a therapeutic reason – so if the sterilization is to treat, for example, endometriosis (which causes heavy periods)… So if there is a therapeutic reason you don’t need the court’s approval. But other than that, if it is to prevent a pregnancy for reasons such as in DE’s case, then the courts should sanction this to confirm “best interests”.

Question 5

A NHS Trust v DE [2003]

Answer 5

Involved a couple. The man was of low intelligence – he had a mental age of around nine. He formed what was described as an endearing relationship with a woman who also had a very low IQ, albeit slightly higher than his. She fell pregnant – so she had a baby, but because of their respective learning difficulties the baby was taken away at birth, which caused incredible stress both to DE and also to his female partner. What the court decided here was that it was in DE’s, the man, “best interests” to be compelled to have a vasectomy. It would then preclude any future children, and that was in his best interests and also that of his wider family – so his relationship with the woman – to avoid the stress and strain that giving birth had given them both.

If you’re wondering, his mental age was such that he just was not able to use any other form of contraception. So effectively, the only way to give him any autonomy in the way that he lived his life – i.e., to have sexual relations – was to sterilize him.

There is obviously… When you take away somebody’s fertility and ability to reproduce, there is a Human Rights argument here, and the argument surrounds Article 3 and Article 8 – is this inhuman and degrading to take away someone’s fertility when they cannot give consent, and is is a breach of their privacy under Article 8?

What the European court jurisprudence says is that this should be used as a last resort. But you will find in your reading that Herring feels our courts get to this last resort point very readily. So, the European courts have said that this should happen only as a last resort. Herring notes that our courts seem all too ready to get to that point.

Question 6

Lord Ellenborough’s Act 1803

Answer 6

Now, the starting point with abortion is the criminal law. Abortion is still Prima facie illegal in this country. It is really commonplace, but it is still prima facie illegal.

Now, in terms of illegality, the starting point when it became illegal was back in 1803 – Lord Ellenborough’s Act 1803.

Question 7

Section 58, OAPA 1861

Answer 7

It is an offense to procure either your own or another person’s miscarriage

Question 8

Section 59, OAPA 1861

Answer 8

Assisting an abortion either through the supply of drugs or through instrumentation. That is up to five year.

Question 9

Infant Life Preservation Act 1929

Answer 9

This relates to very late term abortions. This only covers aborting a child which is capable of being born alive. The offense is to cause a child to die before it has been born. It is a life sentence again. However, it only applies to fetuses who are capable of being born alive.

Case law tells us that “capable of being born alive” means being able to live without support from the mother. You will see from Section 1(2) that that is presumed to be the case at 21 weeks.

Question 10

Rance v Mid-Downs HA [1991]

Answer 10

“capable of being born alive” means ability to live without any support from its mother.

Question 11

R v Bourne [1939]

Answer 11

The defence of necessity for abortion.

The Abortion Act 1967, the only defence as illustrated by R v Bourne [1939] was the defence of necessity. This really was a complete ban on abortions, subject to this one defence, being necessity.

The doctor involved here carried out an abortion on a 14-year-old rape victim who had fallen pregnant. The doctor was able to show that without the abortion he genuinely believed that the mental health of the woman would have deteriorated substantially. So he was able to use the defence of necessity in that the abortion prevented her from becoming much more seriously ill than she otherwise would have been.

Question 12

R v Sarah Louise Catt [2012]

Answer 12

This woman fell pregnant. At 38 weeks, and bear in mind that babies are usually born at 40 weeks, she decided that she didn’t want this baby. So, at 38 weeks pregnant she got some very toxic chemicals off the Internet – some abortion drugs – and she took them and the baby was aborted at 38 weeks. She then tried to hide this fact by claiming that her baby had been stillborn. But eventually the truth came out and she admitted purchasing the drugs. She was convicted under Section 58, OAPA 1861 (could just as easily be under the Infant Life Preservation Act) and is currently serving eight years in prison for what she did.

Question 13

ABORTION ACT 1967 – SECTION 1(1)

Answer 13

No offence (which relates back to the OAPA and also the Infant Life Preservation Act) is committed where a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith, that one of the statutory grounds is made out.

Effectively there is three point there: (1) the actual termination is by a doctor; (2) the decision is taken by two doctors; and (3) it is of their opinion that one of the statutory grounds is made out.

Question 14

R v Smith [1974]

Answer 14

Notice it is a criminal prosecution against a doctor. On the facts, the doctor in question carried out a chemical abortion but without examining the patient. The second doctor who confirmed the decision never met the patient at all.

Question 15

Royal College of Nursing v Department of Health SS [1981]

Answer 15

Confirmed that chemical abortions, as opposed to surgical ones, can be carried out by the medical team.

So, very often it is nurses and midwives, etc. They are okay provided it is carried out under the authority of a doctor.

Question 16

Section 1(3) Abortion Act 1967

Answer 16

In order to be lawful, abortions must be carried out in an approved clinic, or in an NHS hospital.

Question 17

Section 1(1)(a) Abortion Act 1967

Answer 17

That is that there is a risk to the physical or mental health of various people. There is a limit to the use of this ground. The pregnancy must not have exceeded 24 weeks. This is for the earlier part of the gestation period. This is the most commonly relied on ground.

This ground is made out where to continue the pregnancy would pose a risk either to the woman or to any existing children, and that is to physical or mental health, which is greater than the risk of termination.

Question 18

Section 1(1)(b) Abortion Act 1967

Answer 18

Where there is a risk of continuing grave and permanent injury. This is different from the previous ground for a variety of reasons.
Firstly, there is no time limit. This can be used right up until the end of the pregnancy. So from 24 weeks to 40 weeks. There is no time limit.
the injury here can either be psychological or physical, but it has to be grave and a permanent injury.

Again you need the medical opinion of two doctors because that is the empowering section from Section 1(1). Two doctors must form that view.

Question 19

Section 1(1)(c) Abortion Act 1967

Answer 19

The third factor is the risk to life. It gets progressively more serious. So in Section 1(1)(c) if two doctors are of the opinion that continuing with the pregnancy poses greater risk to life than will a termination… From what I have said, giving birth can potentially threaten your life. But, a termination is appropriate without time limit if the risk is less than in carrying on.

Question 20

Section 1(1)(d) Abortion Act 2006

Answer 20

The so-called fetal abnormality ground. Now, those of you who have already had a tutorial this week on assisted reproduction would have rehearsed the arguments about things like PGD leading to consumer choice and eugenics. Well, very similar arguments arise in relation to this ground as well.

The ground says that you can carry out an abortion without committing an offence if two doctors are of the view that there is a substantial risk that if born the child would suffer from serious physical or mental disability. That is the abortion ground.

The reason why this ground is different from what we have looked at before it is again that there is no time limit. This does allow late term abortions.

Question 21

Royal College of Obstetricians Guidance

Answer 21

Will effective treatment to be available for the disability? Remember, it has to be a substantial risk, and the disability has to be serious. So, in judging this the guidance suggests you take into account whether there is an effective treatment.

What about the degree of self-awareness that the baby would have?

What about their ability to communicate?

It also goes on to consider the suffering that a child would experience during life.

It considers there dependency upon others.

Question 22

Parliamentary Enquiry 2013 with Fiona Wolf

Answer 22

Was not a governmental led Parliamentary Inquiry. Parliamentary Inquiries at any rate are only advisory, and this was set up by Fiona Wolf, who is a pro-life activist. She is an MP, but she is very much of the pro-life lobby and very much antiabortion. Effectively, the inquiry took a wide range of views from doctors, hospitals, and bodies like BPA, but also from people who lived with disability and people who had brought up disabled children. The ultimate conclusion was that this ground in their view was discriminatory on the grounds of disability and it was in breach of the Equality Act, in the recommendation of the inquiry was that either a time limit be introduced so that the maximum time period for fetal disability it is 24 weeks to equalize it with other fetuses, or this ground to be abolished altogether.

Question 23

Section 1(4) Abortions Act 1967

Answer 23

An abortion can be carried out in an emergency and in this case only one doctor’s approval is needed. As you will see there this could happen in the back of an ambulance or in someone’s home. So to reflect on the defence of necessity at common law, emergencies are dealt with differently.

Question 24

Section 4(1) Abortions Act 1967

Answer 24

Conscientious Objection

It is controversial and doctors are entitled to their views, and to reflect and respect that this provision is included.

Now, the conscientious objection provision does cover the whole medical team. But for the avoidance of doubt there are a few cases here just ironing out scope of the laws. It doesn’t cover people who are involved in only a secretarial capacity.

Question 25

Janaway v Salford AHA [1989]

Answer 25

The conscientious objection provision (Section 4(1)) does cover the whole medical team. But for the avoidance of doubt there are a few cases here just ironing out scope of the laws. It doesn’t cover people who are involved in only a secretarial capacity.

Question 26

Doogan & Wood v NHS Greater Glasgow [2014]

Answer 26

The argument was about the types of work that was covered by this conscientious objection. So the two ladies in the picture were midwives. They worked for the NHS in Glasgow, and in the labour ward where they worked, occasionally they were asked to deal with chemical abortions. So, that was just the way that things were structured in this particular hospital in Glasgow. Both of these ladies are Roman Catholics and they have very strong conscientious objections to abortion. They were challenging their employer who still required them to deal with various managerial tasks relating to the abortion patients. So they were challenging their employer who was seeking to require them to deal with managerial tasks relating to the abortion patients – so things like the delegation of duties, covering people for rest breaks, and managerial type tasks.

What the Supreme Court decided, and they purely constructed the wording in the statute, is that Section 4(1) allows conscientious objection where people are participating in the medical treatment. So the Supreme Court said looking at the wording of Section for it allows for conscientious objection where the person is participating in the course of the medical treatment.

What they went on to say was participation meant taking part in a hands on capacity.

For Doogan & Wood the court was happy that they were not participating in a hands-on way. They were acting in a managerial capacity and so they were not able to conscientiously object.

Although they were not able to use or rely on Section 4, what the court went on to say, and this is apparently an issue that is being dealt with in an employment tribunal currently, was that there is still an argument under Article 9 ECHR that their religious beliefs were being infringed. So, from a human rights point of view, there is another argument that they are apparently having. However, this was not in the scope of the conscientious objection provision in this case.

Question 27

Barr v Matthews [2000]

Answer 27

If you do conscientiously object there are still some things you must do:
You must still perform an abortion in emergency
You still have your duty to give appropriate advice, and usually that would be to seek an alternative doctor, which was confirmed by the case Barr v Matthews [2000].

The GMC Good Medical Practice (2013) paragraph 52. This includes things like making the appointment for the patient, if need be; so facilitating the patient seeing someone else.

Question 28

Paton v BPAS / Paton v UK [1979/80]

Answer 28

This case concerned a father who was the husband of the person involved. In this case the father wished to object and prevent his wife from having an abortion. He lost his case in the domestic courts and then took the case to the European Court of Human Rights. His argument was that this decision offended his Article 8 right to be a father. He was also concerned about the rights of his fetus. What the European Court said is that pregnancy, childbirth, and procreation engages the rights of both parents – both his and his wife’s – and in terms of European law the status of the fetus is left to each country’s margin of appreciation. So, effectively this is one of those cases where you have two parties’ human rights involved, and it was appropriate for a member state to decide to prefer the woman. So, effectively there is nothing about objection in the 1967 Act. It is therefore appropriate as a member state within our margin of appreciation to prefer the woman’s position over that of the father.

Question 29

C v S [1998]

Answer 29

This was a non-married couple. Effectively, it is exactly the same decision. Although, in this particular case, having gone to court, the pair of people involved did actually come to a compromise. The woman agreed to give birth. The baby was then adopted by the father and looked after by the father’s mother. So, there was a happy outcome in that case, but that was just by chance.

Question 30

Jepson v Mercia Hospital

Answer 30

The other person’s category from the Joanna Jepson case, these are medical decisions and not something that third party can challenge.

Question 31

Abortion Act 1967, Section 5(2)

Answer 31

Foetal Reduction

The statutory grounds that we looked at can apply to aborting any of the fetuses. So, effectively you can use the statutory grounds to abort any of those fetuses.

But, it is an oblique answer to the question because improving the child of the surviving fetuses is still not specifically covered. So effectively you have got to be able to bring what you do within one of the existing statutory grounds:
is there a risk to the woman of continuing with that fetus?
is that fetus disabled?

You cannot abort merely to improve the chances of those fetuses that remain.