A British ruling that a fetus is not a person, further confuses their abortion law, writes Prof. William Reville
In December, the British Court of Appeal ruled that a girl who was born disabled because of her mother’s excessive drinking during pregnancy is not entitled to compensation because she was not a legal ‘person’ while in the womb. The consequence of this ruling expands the list of contradictions that flow from refusing to acknowledge that the human fetus is a person.
The girl at the centre of the case, referred to anonymously in court as CP, was born with Fetal Alcohol Spectrum Disorder (FASD). Symptoms of FASD include retarded growth, intellectual impairment, facial abnormalities and other serious complications. CP, now seven years old, is in the care of a British local authority.
This local authority claimed compensation for CP from the Criminal Injuries Compensation Authority on the basis that her mother’s drinking had poisoned her when she was a fetus. The authority refused compensation and this was upheld by the Court of Appeal.
The case centres on section 23 of the Offences Against the Person Act 1861, which requires the victim of a poisoning to be “another person”. The judges of the Court of Appeal ruled that the unborn baby was not a person, merely a “unique organism”.
The recommended limit of alcohol intake for a non-pregnant woman is 14 units per week. The official medical advice regarding drinking alcohol during pregnancy is that it is best not to drink at all, but expectant mothers who choose to drink should consume no more than 1/2 units once or twice a week.
CP’s 19-year-old mother was said to have drunk eight cans of strong lager and half a bottle of vodka a day (estimated in court at 40–57 units per day) while pregnant, despite reportedly being warned against excessive drinking by her social worker.
Such drinking causes significant alcohol levels to accumulate in the mother’s blood. This alcohol passes across the placenta to the developing fetus. The fetus is unable to process the alcohol effectively because the liver is not fully developed and high fetal levels of alcohol can affect organ and brain development.
Before going further, let me quickly review the question of personhood and the fetus. Science tells us that an individual human life begins at conception when a sperm cell from the father fuses with an egg cell from the mother to form a larger cell called a zygote, the first embryonic stage.
The zygote is the start of a continuum of human life that ends eventually in death in old age.
The zygote grows and divides into two daughter cells that each, in turn, grows and divides, and this process continues over and over again as the developing life passes successively through the stages we call fetus, baby, child, teenager, adult and elderly person who eventually dies.
This automatic unfolding is guided by the genetic instructions that are already fully present in the zygote and that play out in collaboration with cues from the environment.
This developing entity is biologically human at all stages along the continuum, but many people hold that personhood doesn’t begin until birth, i.e. they agree that the fetus is a human organism but hold that it is not yet a human person, only a potential human person.
Under this view, it is allowable to kill the fetus under certain circumstances, such as abortion in cases where the life/health of the mother is deemed to be at serious risk arising out of the pregnancy, and the destruction of human embryos in the service of medical research.
I disagree with the proposition that the fetus is a potential human person, because I believe this confuses being (or functioning) with doing, which is incoherent. Thus, for example, I am not functioning as a human person when I am unconscious, but nobody would suggest (I hope) that it is therefore alright to kill unconscious me.
Personhood is essence, functioning is potential. I believe that the human before birth is a person from conception with the potential to become a musician, swimmer, scientist etc. The fetus is a person with potential, not a potential person. It follows from this that the fetus from conception must be treated with unconditional reverence, and not simply with conditional respect.
The foregoing philosophical argument stands on its own merits. Of course, neither this argument nor alternative philosophical arguments denying personhood before birth, absolutely prove their case, but I believe my argument is coherent, reasonable and persuasive.
It also accords with the position of the Catholic Church, which is further anchored in the belief that humans are “made in the image and likeness of God”.
The British Abortion Act 1967 allows abortion, effectively on demand, up to 24 weeks’ gestation – at 24 weeks a prematurely born baby is considered to be viable. However, if it is later adjudged that continuing the pregnancy poses a grave risk to the woman’s life, or physical or mental health, or if there is a serious risk that the baby will be born with serious physical or mental abnormalities, no time limit up to full term is prescribed for a legal abortion.
Nevertheless, as I understand it, abortion is not generally decriminalised in Britain and the Offences Against the Person Act still provides a sentence of life imprisonment for carrying out abortions outside the circumstances detailed above.
The recent Appeal Court’s decision introduces a new contradictory twist – although abortion is illegal outside of limited special circumstances, you can permanently injure the developing baby in the womb and this is not illegal.
Indeed such contradictions abound in Britain. One ridiculous outcome of the refusal to recognise the fetus as a person is that a baby born prematurely at 24 weeks’ gestation is treated as a person with full legal rights and every medical effort is made to ensure its survival, whereas minutes before a full-term (40 weeks) baby is born it is considered to be a mere ‘organism’ with no independent legal rights.
Contraception is universally available, safe sex is promoted and abortion is only available under special circumstances in Britain.
One would therefore expect that abortions would be rare. However, the reality is that about 20% of all British pregnancies are terminated and the principal abortion provider, the British Pregnancy Advisory Service, calculates that one woman in three will have an abortion. This high abortion rate embarrasses all but the most fundamentalist pro-choice advocate.
I presume that the majority of women who have abortions do so reluctantly to resolve what they see as a desperate situation, and one must feel sympathy for these women.
However, abortion figures clearly suggest that some women are using abortion as contraception and this is confirmed by the statistic that 37% of women having abortions in 2013 had one or more abortions before. Lord David Steel who introduced the Abortion Act 1967 has repeatedly stated that he never anticipated that this legislation would lead to such widespread abortion, an outcome he regrets.
*William Reville is an Emeritus Professor of Biochemistry at UCC. http://understandingscience.ucc.ie