Abortion: a Law Unto Itself

By   Charles Foster

Wrongful life cases (typically where a birth has resulted from a failed sterilisation procedure), used to be big business. The parents would sue the negligent steriliser for the costs of bringing up the unwanted child. There was always something distasteful about parents unwishing their child, and this distaste found legal expression in Macfarlane v Tayside Health Board,¹  where the House of Lords said that such claims were unlawful. The ratio of Macfarlane was summarised by the Lord Steyn in Rees v Darlington Memorial Hospital NHS Trust:²

‘…two features were crucial. First in monetary terms it is impossible to calculate the benefit of avoiding a birth and having a healthy child … the emphasis was squarely on the impossibility of undertaking a process of weighing the advantages and disadvantages. The second feature was explained by Lord Millett as follows:

‘In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forgo the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy B baby as more trouble and expense than it is worth.’

These policy considerations were scrutinised again in a very recent case, ARB v IVF Hammersmith and R.³An IVF clinic thawed and implanted into a woman, R, an embryo created using sperm from R’s former partner, ARB. ARB gave no consent to this implantation. R had forged a signature to make it appear that ARB had consented. ARB sought damages for the pecuniary loss relating to the child’s upbringing.

The clinic was found to be in breach of its contractual duty to ARB, but the court found that the claim for damages was barred by the decision in MacFarlane. The claimant appealed, inter alia on the ground that MacFarlane should not apply to a claim in contract as opposed to one in tort. The appeal was dismissed.

It was accepted that the Court of Appeal could not overturn the decision in MacFarlane, and accordingly the ARB case is not and could not be a review of the policy considerations that were decisive in MacFarlane. But the fact that it found that identical policy considerations apply in contract as in tort is some endorsement of the policy considerations themselves.

The ARB case prompts an examination of the consistency of the approach adopted by the law in relation to questions of the value of human life.

There are at least five other situations where those questions are squarely raised: claims for wrongful life, homicide, suicide, decisions about the withdrawal or withholding of life-sustaining treatment from incapacitous patients, and abortion.

Claims for wrongful life

These are claims where the claimant says: ‘…it were better my
mother had not borne me’, and seeks damages against a defendant who failed to ensure that the claimant was not born. The cornerstone authority in England is McKay v Essex Area Health Authority ⁴which concerned a claim by a child who suffered from congenital rubella syndrome. The Court of Appeal struck out the claim, saying that there was no arguable cause of action. There were two reasons: first, that such a claim would be contrary to the principle of the sanctity of life (whatever that is), and, second, that such a claim could not possibly be quantified.

As to the sanctity of life, Stephenson LJ said: ‘To impose such a duty towards the child [a duty to kill the child in utero] would, in my opinion, make a further inroad on the sanctity of human life which would be contrary to public policy.’⁵

Ackner LJ agreed: ‘I cannot accept that the common law duty of care to a person can involve, without specific legislation to achieve this end, the legal obligation to that person, whether or not in utero, to terminate his existence. Such a proposition runs wholly contrary to the concept of the sanctity of human life.’⁶

As to the difficulty of assessing damages, Stephenson LJ said that: ‘The only loss for which those who have not injured the child can be held liable to compensate the child is the difference between its condition as a result of their allowing it to be born alive and injured and its condition if its embryonic life had been ended before its life in the world had begun. But how can a court of law evaluate that second condition and so measure the loss to the child? Even if a court were competent to decide between the conflicting views of theologians and philosophers and to assume an ‘ after life’ or non-existence as the basis for the comparison, how can a judge put a value on the one or the other, compare either alternative with the injured child’s life in this world and determine that the child has lost anything, without the means of knowing what, if anything, it has gained?…In measuring the loss caused by shortened life, courts are dealing with a thing, human life, of which they have some experience; here the court is being asked to deal with the consequences of death for the dead, a thing of which it has none…’⁷

And Ackner LJ observedthat the compensation would have to be based on a comparison between the value of non-existence (the negligence having deprived her of that) and the value of her existence in a disabled state. He went on: ‘But how can a court begin to evaluate non-existence, ‘the undiscovered country from whose bourn no traveller returns’? No comparison is possible and therefore no damage can be established which a court could recognise.’⁸

Homicide and suicide

In England, murder and manslaughter are crimes. Suicide is not, but assisting suicide is.⁹The justifications for these prohibitions generally include some reference to the notion of the sanctity of life. These prohibitions are expressions of Article 2 of the European Convention on Human Rights, which gives a right to life.¹⁰

Withdrawing/withholding life-sustaining treatment from incapacitous patients

 The English law is clear. Baroness Hale summarized it in Aintree University Hospitals NHS Foundation Trust v James¹¹: as follows: ‘The authorities are all agreed that the starting point is a strong presumption that it is in a person’s best interests to stay alive.’

Abortion

 In the circumstances specified in s. 1(1) of the Abortion Act 1967, abortion is lawful.

How consistent is the law?

Whatever one’s view of abortion, it is plain that the same principles that apply in the other six areas of medical law do not apply to abortion.

In the other six areas, there is considerable overlap between the justifications given for the state of the law. All rely to some degree on the assumption that life has inherent value. The profound metaphysical problem of comparing existence and non-existence does not apply obviously to issues other than wrongful life.

If one were trying to contend that abortion law is consistent with the other areas, one might begin by observing that an embryo or fetus at the time of the abortion is not a fully constituted human, whereas the characters at the centre of the other courtroom debates are incontestably humans: the unwanted child in the case of a wrongful birth claim, the reluctantly alive child in the case of a wrongful life claim, the corpse in the case of a homicide, the suicide or would-be suicide in the case of a prosecution under the Suicide Act, and the incapacitous patient in the case of a determination of the lawfulness of the withdrawal of life-sustaining treatment. But that hardly helps, unless one is comfortable relying on the assertion that a fetus in utero is legally nothing, while a fetus ex vaginam is legally everything. The significant probability, in the circumstances of most abortions, is that if the abortion does not happen, the child will be born alive. That, after all is the premise of the abortion: the whole reason for it. If the child were born alive, it would be regarded by the law as a ‘blessing’ (per MacFarlane), the preservation of whose life is robustly presumed to be worthwhile (per James, and many other authorities).

Nor does it help to note that the embryo or fetus is in a competition with the mother for some fundamental rights. That is precisely the position in wrongful birth cases. The mother in such cases has sought to avoid pregnancy or birth in order to avoid exactly the same perceived detriments as the woman who seeks an abortion. Yet in wrongful birth cases the mother’s detriments do not outweigh the perceived benefit of the child. Again, the only way of justifying the position is to assert (and it is a mere, bare assertion) that the embryo/fetus does not exist in the eyes of the law, whereas the child does – hardly a proposition that satisfies either intuition or a basic knowledge of biology.

The law of abortion, then is (rightly or wrongly) on a little philosophical island of its own. Wholly exceptional rules, directly contrary to those applicable to comparable areas of the law, apply to it. It does not follow that abortion is indefensible, but it does mean that the defence cannot come from other redoubts of medical law.

References

1. [2000] 2 AC 59
2. [2004[ 1 AC 309, at [28]
3. [2018] EWCA Civ 2803
4. [1982] 1 QB 1166; see too CICA v First Tier Tribunal [2017] EWCA Civ 139
5. At 1180
6. At 1188
7. At 1181
8. At 1189
9. Suicide Act 1961 s. 2(1)
10. Article 2 provides: ‘1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
11. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a. in defence of any person from unlawful violence; b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c. in action lawfully taken for the purpose of quelling a riot or insurrection.’
12. Aintree University Hospitals NHS Foundation Trust v James[2014] AC 591, [35]