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| No Justice |
Mr Wright's suggestion was that an application might be made on behalf of and in the name of an unborn child him/herself. What a preposterous proposal that an unborn child might ask a court to protect his or her life - just as preposterous as suggesting that an American slave or a Russian peasant or a German Jew or victim of the Khmer Rouge should apply to the courts of their countries for protection.
So far as we are aware Mr Wright's proposal has not been attempted but what, other than a lot of money, would be lost by trying?
One aspect of the Abortion Act which this case made absolutely clear was that the Act gave no rights to the father. The judge said in paragraph G of his judgement that,
"[T]he Abortion Act 1967 gives no right to a father to be consulted in respect of the termination of a pregnancy.."He went on to say,
"True, it gives no right to the mother either.."This is, of course, a great disappointment to abortion supporters but has not stopped them insisting on their non existent "abortion rights". What the Abortion Act did do, however, was to remove the protection which the English law had for many centuries placed around unborn children and transferred that protection to the very people who are destroying those unborn children. It is difficult to imagine a greater injustice.
ALDU NEWSLETTER
Number 2
Summer 1979
Paton v British Pregnancy Advisory Service Trustees and Another 1978 3 W.L.R. 687.: The Next Step
Last May Mr. William Paton sought an injunction to restrain the B.P.A.S. Trustees, and his own wife, from aborting a child, his child, which his wife was then expecting. His application failed and thereafter the life of yet another innocent victim of the Abortion Act 1967 was destroyed. Does the decision of the President, Sir George Baker, preclude any further attempt to restrain an expectant mother from undergoing an abortion? The purpose of this article is to suggest another approach to the problem which Mr. Paton faced, and to provoke discussion and research with a view to developing an effective legal argument which can be used next time an attempt is made to restrain a proposed abortion.
The Ratio Decidendi of Paton's Case
Baker P. decided (see p. 690D) that Mr. Paton could succeed only if he had a right as a husband to restrain his wife from obtaining an abortion. It is therefore implicit in the decision that the prospects of success of an expectant but unmarried father, or of a mere member of the public unrelated to the expected child, would have been even less than Mr. Paton's. Baker P. concluded (see p. 691H) that as a husband Mr. Paton had no legal right enforceable in law or in equity to stop either his wife from having the abortion or the doctors from carrying out the abortion. His application was therefore refused.
Others may disagree, but it is accepted for the purposes of this article that the decision of Baker P. was correct and is legally unassailable.
Bona Fides of the doctors concerned
At the hearing before Baker P. it was conceded (see p. 691G) that the doctors whom Mrs. Paton had consulted were acting in good faith. Would it have made any difference to the decision if it had been possible to challenge their bona fides and to contend that a criminal breach of the provisions of the Abortion Act 1967 was about to be committed? It is submitted that this would have made no difference to the decision for Gouriet v Union of Post Office Workers (1978 A.C. 435) decides that no ordinary member of the public has the right (save with the assistance of the Attorney-General ex relatione) to bring civil proceedings to restrain threatened criminal acts. As the decision of Baker P. effectively equated Mr. Paton's status with that of an ordinary member of the public, it is apparent that the bona fides of the doctors could never have been a triable issue in the case.
A different approach
Mr. Paton sought to base his claim upon his supposed right as a husband, and possibly upon his supposed right as an expectant father. His claim was therefore entirely personal to himself based upon his personal status and, as such, it failed. As mentioned above, Gouriet's case debars any other member of the public from taking proceedings in his own right, and it is thought unlikely that an Attorney-General would lend his aid to proceedings unless an absolutely blatant and clearly provable abuse of the law were contemplated. Does this mean that no proceedings are possible to prevent an abortion?
Baker P. said (at p. 689F):
"The foetus cannot in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother."
However despite this obiter dictum (for such it must be) it is submitted that a claim made on behalf of the unborn child, the "nasciturus" as it is sometimes called, would stand a very much better chance of success than did Mr. Paton's personal claim as husband and father-to-be. The arguments in favour of a claim so framed are outlined below.
General
In recent years abortion legislation has been passed in many countries. It has been passed because the general public does not regard a foetus, at least in its early stages of development, as a person, as human, or even as living. Consequently many who would agonise over "putting down" a household pet would regard the killing of a living foetus with far less compunction; they think of the foetus as an inanimate blob of jelly.
Legal thought has been largely conditioned by a similar ignorance of modern embryology. Hence the wholly artificial distinctions made in the past in criminal law between a woman who had "quickened" and one who had not, between a child carrying on its being without the help of its mother's circulation, and a child which merely breathed, and so on.
It is possible that a claim made on behalf of a nasciturus would be greatly assisted by a body of expert medical evidence directed to demonstrating that a nasciturus differs little from a recently born and living baby. Such evidence would tend to clothe the nasciturus with the "personality" which, in the uninformed minds of many, it lacks.
However, the real basis of a claim on behalf of a nasciturus is not that it is a "person" with the kind of "personality" which a layman understands, but that it has a "legal personality" capable and worthy of being protected by the law.
The Concept of Legal Personality
A legal person is something which the law regards as being, capable of rights or duties. It is very much a technical concept, for a human being may lack legal personality as did the slave under Roman Law or the "outlaw" in medieval times. Conversely a legal personality may not be human at all and may be a limited company or even (see Pramatha Nath Mullick v Pradyumma Kumar Mullick 1925 L.R. 52 Ind. App. 548) a Hindu idol.
Whether a particular "thing", to use a neutral term, should be invested with legal personality and regarded as capable of rights or duties is perhaps a policy decision. The burden of this article is to suggest that, effectively, such a policy decision has already been made, and that a nasciturus is already sufficiently recognised by the law as a legal personality as to be capable of having an action brought on its behalf to protect it from being aborted. This proposition will be considered under the headings: 1. Criminal Law; 2. Property Law; and 3. Tort.
1. Criminal Law
Since at least the days of Coke abortion has been a crime. This fact does not of itself invest the foetus with legal personality, but it does demonstrate a concern, both at Common Law and by statutes (not insignificantly entitled "Offences against the Person" Acts), for the protection of the unborn foetus.
A particularly important case is R v Shephard (1919 2 KB 125) where a Defendant was convicted (his appeal being dismissed) of inciting to murder, the facts being that he had incited a woman to kill her unborn child whenever it should be born. As one can only murder a human being (which certainly has legal personality) the decision implies a legal personality in the unborn foetus. Though comparatively old this decision was cited with approval in R v McDonough (1962 47 C.A.R. 37).
2. Property Law
Many of the cases in this sphere turn upon the construction of documents and involve the legal fiction of treating the unborn foetus as a living child within the meaning of such testamentary phrases as: "such child or children ... as should be living at the time of his decease" (Doe dem Clarke v Clarke 1795 2 H.B1. 399). The cases however go further than formulating canons of construction based upon a legal fiction and can usefully be summarised by the words of Buller J. in Thellusson v Woodford (4 Ves 227 at 322):
"Let us see what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injuction; and he may have a guardian" (a reference, it is thought, to the guardian who could be appointed under the Tenures Abolition Act 1660).
The reference to a guardian is perhaps of particular significance for, ex hypothesi, only a legal person can have a guardian to protect his rights and undertake his duties.
It is submitted that there are clear indications that in this branch of the law a nasciturus has been recognised as having legal personality.
3. Tort
The plain trend of American, Canadian and Australian case law is to grant an action for damages to a child in respect of physical injuries sustained whilst it was an unborn foetus, a nasciturus. It is confidently predicted that, if a similar claim were brought in this country, it would succeed. Save for the Thalidomide cases which were compromised, no like claim is known to have been made, but the trend of jurisprudential thought is such that, assuming cause and effect can be satisfactorily proved, a claim is almost certain to succeed.
Such claims however are by living, born, children even though they are made in respect of injuries inflicted whilst the claimant was unborn. It is submitted however that if the living child can sustain an action in respect of pre-natal injury it should follow logically that in a "quia timet" action proceedings can be brought on behalf of the unborn child to prevent it from suffering injury — or death.
It is submitted that our law of Tort, and in particular The George and Richard, the authority of which has never been doubted, plainly supports the proposition that proceedings can be brought on behalf of a nasciturus to protect its interests.
A difficulty
In the Property Law Cases referred to, and in Tort (even in The George and Richard), the success of the proceedings is ultimately dependent upon the nasciturus being born and surviving. In contrast, in the proceedings contemplated the survival of the foetus is dependent upon the success of the action. It is submitted however that this difference is not of any logical significance and that in principle English law already sufficiently recognises the legal personality of a nasciturus to justify proceedings on its behalf to protect it from abortion.
Bona Fides
Paton's case equated Mr. Paton with an ordinary member of the public, and Gouriet's case decided that an ordinary member of the public, with no special interest other than as a member of the public, has no right to bring civil proceedings on his own account to restrain a proposed criminal act. However an unborn foetus plainly has a special interest in being born, and in being born uninjured, and it is submitted that it has, at the very least, sufficient legal personality to justify proceedings being brought on its behalf to prevent its being unlawfully aborted.
If therefore one accepts, as a lawyer one must, that some abortions can be lawfully carried out under the provisions of the Abortion Act 1967, it is submitted that it is still possible (as it was not in Paton's case) for a guardian or next friend (whose nature and status may require some research) to challenge on behalf of the unborn foetus, the nasciturus, the legality of a proposed abortion. This means that, in a proper case, the decisions and bona fides of the certificating doctors can be called in question and challenged.
Conclusion
The views expressed in this article are entirely personal to their author. They have been much influenced and assisted, however, by an article by Professor Winfield in 8 Cambridge Law Journal and by the pioneer work of Professor Lasok (a member of ALDU) in the Law Journal of February 15th 1963 and in the Symposium "Fundamental Rights" published by Sweet and Maxwell in 1973. It is hoped that these views will provoke study and discussion and the writer would be most grateful to receive criticisms of what he has written and the views and ideas and suggestions of other members of ALDU.
