Does an Unborn baby have a Right to Life?

Welcome to my next article, of which I will impose upon you the right to read this for educational purposes, not for a legal or an authoritative nature.

I appreciate it has been a long time since I have written an article but based on current commitments it has been difficult to write in my spare time.

This article concerns the European Convention of Human Rights, Article 2, the right to life. For general purposes this right imposes a right not to be unlawfully killed by the state, members of the state and any non-governmental institutions; it also promotes the concept of sanctity of life and protecting the life expectancy of all individuals of the state (i.e., country). Therefore, an institution is bound to not inhibit or interfere with an individual’s life expectancy and ensure measures are put in place to secure and protect all persons lives with a manner of upmost importance. The most important part to note of this right is it is an absolute one. Meaning the state has absolutely no authority to interfere with this right. However, exceptions to this right are explicitly stated when regarding the police using necessary force to carry out their services.

Now let’s relate this to an unborn child, for now on I will regard as a foetus. There are three main questions to examine: what happens in the maternal-foetal disputes? Does the foetus have any rights when the mother or father negligently or deliberately harms the foetus? What is the status of the foetus with respects to its rights and interests?

What is the current law? The current law in England appears to be very clear, the foetus is not regarded as a person and neither shall it be considered to have rights or interests; in the case of AG’s Reference (no.3 of 1994) the court concluded that the foetus does not have rights or interests in its unborn state and therefore, in theory, the right to life is not extended to an unborn baby. However, the courts have found the questions of whether there are any protections or limited rights for the foetus, very problematic and difficult to answer, as we will see below.

What is the maternal-foetal dispute? There are many circumstances when the interests of the mother and the interests of the foetus are at odds with one-another. Let’s look at non-consensual caesarean sections (referred to as c-sections). There are situations where the c-section will be the safer and more viable option for the survival of a foetus, however the mother may disagree and want to continue with a natural birth. It is important to note at this point, all adults with capacity (capacity will not be explained, but let’s simplify it and say it means adults with the ability to make a true and informed decision), can refuse any kind of treatment for rational reasons, irrational reasons, or no reasons at all, as to preserve the autonomy of the individuals, another human right. This promotion of autonomy already presents the foundations to believe the foetus does not have the right to life as the law permits the woman to make irrational decisions that can risk the health of the foetus (remember as we said above, Article 2, the right to life also extends to promote the health of the individual, not just maintain it). Let’s look at the case of Re MB (caesarean section): this involved a pregnant lady, but her child was in the breach position which resulted in a 50% chance of survival for the child if it was to be born naturally. The mother did not appose to a c-section birth but refused it on the basis she had a phobia of needles and refused to have the anaesthetic administered by means of injection. The doctors sought an emergency declaration from the court to provide a statement that providing a non-consensual c-section birth would be lawful in this situation. It went to the first instance court and then appealed at the Court of Appeal who explained that the woman’s autonomy should always be protected, however she lacked capacity because her needle-phobia did not allow her to make true and informed choices on matters regarding her birth. Therefore, the court sanctioned a non-consensual c-section. This is interesting because the mother was in no danger, regarding her life, her life was not in harm and no risk of death was evident, the only risk was on the child’s mortality. Therefore, a simple process of inference would suggest the court had intervened to protect the life of the child. The actual justification was the woman could not make a valid decision because she did not have the necessary capacity to do so, however, tiptoeing or not, there was an evidential protection of a foetus in sanctioning a non-consensual c-section. This is the first confusion in the law representing the foetus.

Secondly, what happens if the mother or father, intentionally or negligently, causes damage to the foetus which causes deformities or damage to the baby after birth? The Congenital Disabilities (Civil Liability) Act 1976 provides for liabilities in favour of the foetus against the perpetrator for causing harm during the baby whilst it was a foetus. Therefore, the born baby has a right to collect damages for the damage done to itself by the perpetrator during it being a foetus. This includes situations where the father may be aggressive towards the mother and, in turn, cause physical or mental damage to the foetus. However, there is a large exception to this piece of legislation: the mother is entirely immune to all liabilities relating to the Act, unless negligent driving is involved. This means the mother will not suffer any consequences for deliberately or negligently consuming excess alcohol, smoking or performing in any acts which may be dangerous to the foetus, whilst having knowledge that a foetus is there. This is interesting; the unborn baby is afforded some protections here, but these protections only exist once the damage is done, once the baby, which is born, has suffered a deformity, then it may lay a claim. Therefore, the protection is certainly very weak because the damage has to be completed, appearing to serve no pre-emptive service. In the case of D (a minor) v Berkshire County Council (1987): the mother was deemed to live a very nomadic life, due to her drug dependency. The House of Lords (now the Supreme Court) agreed that placing the child into protective services was necessary based on the mothers’ actions during pregnancy. This is, arguably, frustrating because the mothers’ actions during pregnancy will affect the manner of which the child will be looked after post-birth, but there are no punishments or liabilities imposed on the mother and the damage has to be done before any action can take place. It is important to note, that the main issue with sanctioning anything before the child is born, is that we will effectively be imposing a control over mothers in what they can and can not due during pregnancy, interfering with their autonomy. A very contentious topic.

The last two questions concern the situation under English law, the last question on what the status of a foetus is; under Article 2 of the European Convention of Human Rights is based on more European law. The European Commission of Human Rights stated in the Paton v UK (1980) case, that there is no absolute right to life for the foetus (even though it is absolute for born human beings) and therefore the abortion in that case was held to be legal and compliant with European law and English law. This next case of Vo v France (2005) must be the one of the most controversial cases and heavily criticised ones. The European Court of Human Rights was delivered a particularly difficult case to deal with concerning whether a foetus has a right to life or not under Article 2. What happened before it got the ECHR? This case concerned a Vietnamese woman, Mrs Vo, who was 6 months pregnant attending a French hospital for a medical examination. Coincidentally, another Vietnamese woman named Mrs Vo entered the same hospital to remove the coil from inside her uterus. The French hospitals had mistaken the identities of the two ladies and the doctor without prior, routine checking, tried to remove the coil from the pregnant Mrs Vo. In doing so, the doctor had pierced the amniotic sack and the fluid was lost resulting in the death of the foetus that needed to be terminated on health grounds. The woman brought a criminal claim to the French courts, demanding that the foetuses right to life was infringed as there were no sufficient protections for her unborn baby in their homicide laws. The French courts denied attributing any liability to the doctor and so she appealed to the European Court of Human Rights. Now, crucially, it is important to state that in this case both the mother and the foetus had their interests aligned, the mother and foetus both wanted the same outcome in the safest way possible (if the foetus could think, you would assume it wanted to survive), the negligence of the doctor prevented this. This makes this case the perfect opportunity to raise whether the foetus had a right to life, purporting to Article 2. Frustratingly so, the courts did not take this opportunity to set the law straight and instead explained that there was civil liability, however not always criminal liability and left it at that. They did provide their possible views in this case and 4 of the judges held, the foetus is protected under Article 2, 5 held that the foetus was not protected under article 2, and 8 refused to answer this question. In my professional opinion this is a clear abdication of judicial responsibility, it is the duty of the judges to interpret and present the law in the most simple and objective way, and 8 judges had refused to answer the question held in front of them. If a police officer refused to prevent a crime, they would be sanctioned for their poor behaviour. It appears that the law is so confused that even the most intelligent judges and academics are struggling to invite an answer to the very question does a foetus have a right to life?

Overall, I hope you have enjoyed this, slightly longer, article and find it interesting and informative.