A Lacuna in the Criminal Law’s Protection of Antenatal Life

Introduction

The criminal law has always been concerned to protect the life of children before and after birth. This protection primarily arises in three ways. The law on murder protects the child after they are born, the law against procuring a miscarriage protects the foetus in the womb and the offence of child destruction under the Infant Life (Preservation) Act 1929 fills the gap between these two offences.

However, recent developments in medical science have exposed factual matrices in which the Infant Life (Preservation) Act 1929 can no longer fulfil its intended purpose. There is now a very strong argument to be made that, by virtue of failing to keep up with medical advancements, a lacuna in the criminal law’s protection of antenatal life has re-emerged.

This article draws on contemporary legal and medical developments to demonstrate by doctrinal analysis this gap in the law. It begins by setting out the existing legal framework for the criminal law’s protection of antenatal and postnatal life. Next, it identifies the problems in this existing framework through consideration of three important advancements in medical science. It then proposes a solution to this problem, reinterpreting and rationalising the existing case law on the offence of child destruction to better reflect a modern medical understanding of antenatal life.

Outline of the Existing Legal Framework

The criminal law takes a three-pronged approach to the protection of antenatal and postnatal life. Beginning with postnatal life, the most relevant protection in the criminal law is the prohibition of murder. Murder is conventionally defined as the unlawful killing of any person with the requisite intention. ¹ The crucial difficulty in applying the law of murder to neonates is identifying whether they are a ‘person’, defined as a child fully expelled from their mother’s body with an existence independent of their mother. ² If a child is born with these features, and accordingly is a ‘person’, then to kill that child would be murder. However, it is clear under the present law that destroying a viable foetus in the womb will not be murder, as the foetus does not possess a sufficiently independent existence. ³ Accordingly, while protection for postnatal life is provided by the crime of murder, the criminal law’s protection of antenatal life must be derived from elsewhere.

The primary protection for antenatal life derives from s 58 of the Offences Against the Person Act 1861, which makes it a criminal offence to act with the intention of procuring a miscarriage. ⁴ This offence applies irrespective of the identity of the individual that attempts to procure the miscarriage and applies whether they attempt it using any ‘poison or other noxious thing’ or any instrument or other means. ⁵ A critical element of the offence is the attempt to procure a ‘miscarriage’, with the consequence that if there is no possibility of actually procuring a miscarriage, there can be no liability.

Historically, between these offences existed a gap. As was recognised by Talbot J in 1928, sitting in the Liverpool Assizes, ‘to take the life of a child while it is being born and before it is fully born is no offence whatever’. ⁶ This is because during the act of delivery, there can be no miscarriage, but simultaneously the neonate does not have an existence sufficiently independent of its mother to count as a ‘person’ for the law of murder. Thus, Parliament enacted the Infant Life (Preservation) Act 1929, creating the offence of child destruction, to remedy this perceived defect in the law. ⁷

The purpose of the Infant Life (Preservation) Act 1929, as its preamble sets out, is to ‘amend the law with regard to the destruction of children at or before birth’. Under s 1(1) of the Infant Life Preservation Act:

Any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty…of child destruction.

In C v S, ¹⁰ two students at Oxford University entered into a relationship, resulting in an unexpected pregnancy. When the woman sought an abortion, the man applied for an injunction attempting to restrain her and the health authority from carrying out the procedure. All the relevant conditions of the Abortion Act 1967 had been met. However, the putative father alleged that the foetus was a ‘child capable of being born alive’ under s 1(1) of the Infant Life (Preservation) Act 1929, that termination of the foetus would therefore amount to the crime of child destruction, and that an injunction should be granted to restrain the criminal activity.

Heilbron J at first instance dismissed this application. She made a finding of fact that the foetus was between 18 and 21 weeks old, and that if delivered would never be able to breathe, either naturally or with artificial assistance. Accordingly, the foetus could not be said to be capable of being born alive. An appeal was heard one hour later by the Court of Appeal, who upheld the decision of Heilbron J. When leave to appeal to the House of Lords was refused, the Court of Appeal refused to give reasons beyond their brief ex-tempore judgment. However, it is apparent that the Court of Appeal similarly focused on the fact that the foetus would never be capable of breathing alone or with assistance. ¹¹ The ability of the foetus to breathe therefore emerges from C v S as of overwhelming significance in ascertaining whether a child is ‘capable of being born alive’.

The second decision is Rance v Mid-Downs Health Authority. ¹² In this case, the claimant parents had a child born with severe medical conditions, including spina bifida. They alleged that the health authority and medical professionals involved had negligently failed to notice the spinal abnormality. They further argued that, had the abnormality been noticed, the mother would have had an abortion under the Abortion Act 1967, and that the defendants had therefore caused the losses incurred in raising and caring for the child. The defendant health authority argued in response that, inter alia, the child was capable of being born alive, with the effect that any termination would have been unlawful under the Infant Life (Preservation) Act 1929. Thus, there could have been no abortion, and thus there was no civil liability.

Brooke J rejected the claimant parents’ arguments, holding that the foetus at 26 to 27 weeks gestation was indeed a child ‘capable of being born alive’, with the effect that carrying out an abortion would amount to child destruction. Brooke J appears to have adopted the emphasis on breathing from C v S, noting that:

In my judgment the meaning of the words ‘born alive’ are clear, and the meaning of the words ‘capable of being born alive’ are also clear. The anencephalic child (who lacks all or most of the cerebral hemispheres but is capable of using its lungs) and the spina bifida child (who possesses one or more of the adverse criteria identified by Professor Lorber) is each born alive if, after birth, it exists as a live child, that is to say, breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connection with its mother.

A number of uncertainties remain in the law after these decisions. It is not clear whether the test the courts are applying is one of viability, or whether they are taking the phrase ‘capable of being born alive’ without adding any gloss. ¹⁴ The courts have not explained the impact, if any, of external medical intervention. What of the case of the premature child which can breathe only with ventilation? More fundamentally, given the court’s focus on breathing, is this the sole indicator of what it means to be ‘capable of being born alive’? Or is it merely one indicia among many, which did not need to be considered on the facts of either C v S or Rance?

These points notwithstanding, the relationship between the criminal law’s various protections of antenatal and postnatal life is relatively clear. The offence of procuring a miscarriage is intended to protect the foetus in the womb, the offence of murder protects the child after birth, and the offence of child destruction is intended to capture situations not caught by the other two offences. With this framework in mind, the lacuna in this protection can now be identified.

Identifying the Problem

Consideration of certain fact patterns demonstrates that situations can arise in which the foetus is destroyed, while seemingly no crime is committed. This section begins by considering three such situations which are discernible from analysis of contemporary medical literature. It explains how each situation gives rise to a problem in the law as it stands, before identifying why these gaps have arisen.

The first situation exemplifying the deficiency in the current law arises from developments in antenatal foetal surgery, particularly the development of open foetal surgery. ¹⁵ This procedure tends to be reserved for circumstances where foetal prognosis is otherwise poor and postnatal surgery may have a relatively low chance of success. Open surgery is conducted on foetuses with a gestational age of 19.0 to 25.9 weeks ¹⁶ and may in short be outlined as follows. ¹⁷ First, with obstetrical monitoring, the mother is given the tocolytic Indomethacin (to reduce uterine contractions), antibiotics, and general and epidural anaesthesia. The uterus is then exposed by a low transverse abdominal incision, sterile ultrasound detects foetal and placental position, the uterus is opened and stapled, and the foetus is positioned for surgery. At this point, part of the foetus is exposed out of the uterus, but the foetus is bathed in a continuous administration of warmed Ringer’s lactate. Following completion of the foetal surgery, a watertight uterine closure is performed. Post-operatively, the mother continues to take tocolytics until the time of delivery. With maternal and foetal monitoring over the coming weeks, the foetus is allowed to continue to develop, with a planned delivery by Caesarean section usually occurring at 36 weeks.

Open foetal surgery has been found to result in improved outcomes for children born with myelomeningocele, the most frequent form of spina bifida, when compared to postnatal repair. ¹⁸ This anomaly occurs during foetal development where the spinal cord is extruded into a sac filled with cerebrospinal fluid. This can cause profound disability and often death. While postnatal repair is standard, the US Management of Myelomeningocele Study (MOMS) found that prenatal surgery before 26 weeks resulted in lower rates of hydrocephalus treatment by shunt placement by 12 months, and better mental and motor development by 30 months. The study was even stopped early due to the efficacy of prenatal surgery. There is only one UK centre, the Centre for Prenatal therapy at University College London Hospital, currently offering open myelomeningocele repair. ¹⁹

If the foetus were destroyed in the course of this procedure, for example by a malicious doctor with the requisite intention, it does not appear that there would be any criminal liability as the law stands. It is readily apparent that the act would not be murder, as the foetus would not be a ‘person’ for the purposes of the law of homicide. Nor does it seem that there is an act done with the intention of procuring a miscarriage for the purposes of s 58 of the Offences Against the Person Act. ‘Miscarriage’ is to be construed in accordance with modern medical knowledge. ²⁰ Of the medical definitions of ‘miscarriage’ explored in Smeaton, while some adopt a broad approach as meaning the end of a viable pregnancy, many focus on the premature expulsion of the foetus. ²¹ Since the destruction happens in these circumstances while the foetus is neither fully within nor without the uterus, the impugned action does not seem to sit comfortably with the offence of procuring a miscarriage. Indeed, the destruction of children outside of the womb not covered by the law of murder appears to be a matter intended by Parliament to be addressed under the Infant Life (Preservation) Act 1929.

In these circumstances, therefore, the destruction of the foetus needs to be caught by the Infant Life (Preservation) Act 1929 for criminal liability to arise. However, it is doubtful for these purposes whether there is a child ‘capable of being born alive’ under the approach in C v S and Rance. In C v S, the inability of the foetus to breathe precluded it being a child ‘capable of being born alive’. While much would depend on the gestational development of the foetus in question, the impugned action will fall outside the ambit of the offence of child destruction if it could be shown on the facts that the foetus would never be able to breathe. Given that this procedure is carried out at very early gestational stages, this is entirely likely. It is seemingly possible, therefore, for a doctor to destroy maliciously a child during antenatal foetal surgery without any criminal liability arising.

The second situation exemplifying the deficiency in the current law arises from consideration of the importance of artificial ventilation in modern neonatology. It is apparent from C v S and Rance that the possibility of breathing, whether alone or with ventilation, has been a crucial and perhaps determinative factor in assessing whether a child is ‘capable of being born alive’. However, with advances in obstetrics and ventilation, determining whether severely premature children will ever be capable of breathing is an extremely complex issue.

This can be demonstrated by reference to empirical data. The Epicure2 study ²² examined the survival and morbidity of babies born between 22 weeks and 26 weeks gestation in England in 2006. The study therefore helpfully considers neonates aged between the foetus in C v S who was not ‘capable of being born alive’ at 18 to 21 weeks gestation, and the child in Rance who was held to be ‘capable of being born alive’ at 26 to 27 weeks gestation.

The Epicure2 study reveals that, of the 3,133 infants born in England between 22 weeks and 26 weeks, there were 2,034 total live births, of which 1,169 newborns survived to 28 days. Ninety-nine per cent of the babies in the study required surfactant treatment delivered into their lungs, designed to keep their lungs open and aid breathing. Of these 1,169, 1,041 survived to discharge from hospital. Of those babies who survived discharge from the hospital, 426 had severe bronchopulmonary dysplasia and continued to require either mechanical ventilatory support and/or supplementary oxygen. It is thus apparent that almost every premature baby in the study needed some level of respiratory support, in the form of delivery of oxygen or surfactants, and that many required intensive respiratory intervention in the form of mechanical ventilatory support.

It is in this context that the approach to the ‘capable of being born alive’ test adopted in C v S and Rance needs to be scrutinized. ²³ The ability of a newborn to breathe is not a clearly determinable issue; rather, it is a matter of degree. What level of medical intervention is required before the child becomes legitimately unable to be viewed as capable of breathing by itself? Conversely, what level of external medical intervention renders a child ‘capable of being born alive’ when otherwise they would not be? The existing law provides no answer to these questions. Given the frequent need for varying degrees of medical intervention, it appears that a focus on the possibility of breathing adopts an overly simplistic approach to what it means to be capable of living. Moreover, given these uncertainties, there exists an entire class of premature neonatal life whose protections in the criminal law are uncertain.

The third fact demonstrating the gaps in the present criminal law’s protection of antenatal life arises out of developments in extra-uterine foetal development (i.e. the development of the foetus outside of the womb). While the relevant technology has not yet been applied to humans, and thus this fact pattern is partially hypothetical, it nonetheless raises important issues, and provides insight into potential future problems to be faced by the criminal law.

Recently, there have been developments in ‘extracorporeal support’ of the foetus in animal trials. In one recent study, a foetal lamb was supported in what was essentially an artificial womb for up for 4 weeks. ²⁴ In rough outline, the procedure is as follows. First, following administration of ewe anaesthesia and opening its uterus, foetal lamb vessels were cannulated and attached to a pumpless machine sustaining gas exchange. Once connected, the umbilical cord was occluded. The foetal lamb was then incubated, stabilised, administered total parenteral nutrition and monitored for a period of time. Following completion of the incubation period, the animals were intubated, their cannulas removed, and placed on mechanical ventilation, with their progress recorded. The best outcome arose in respect of one lamb, which was attached to the incubation circuit for 288 hours and emerged from the procedure with long-term survival.

The lambs in the study ranged in age from 106 to 140 days gestation. In terms of lung development, lambs at 100–115 days gestation are in the equivalent stage of development to a human foetus of between 22 and 24 weeks. This study therefore provides some insight into potential future procedures which could be adopted in respect of extremely premature human infants, albeit that such a development is some way in the future. Nonetheless, considering this development provides a fascinating hypothetical situation which the law may have to respond to in the future.

Were the same procedure to be carried out with a human foetus, the criminal law would have no way of dealing with deliberate destruction of the child. As above, it would not be murder due to the foetus not yet having acquired personhood. It would not be procuring a miscarriage, as this is entirely impossible in the absence of a mother carrying the child. It would seemingly not be child destruction, as it is not clear how the requirement to have an existence separate from the mother could operate in the context of an artificial womb. It is also not clear what it means for a child to be ‘capable of being born alive’ when taken completely outside the paradigm of traditional birth. While not a pressing problem for the criminal law at the moment, this is a striking example of how rapid medical advancement can allow legislation to become ‘stale’.

These three examples demonstrate factual patterns in which the criminal law, as it stands, is seemingly unable to impose liability in a situation in which liability should clearly be imposed. The first two examples given above are neither extreme nor hypothetical, but rather illustrate medical intervention which takes places regularly in UK hospitals. The problem described is therefore a real one. The reason for this deficiency in the law is that older legislation has failed to keep pace with scientific and medical advancement. Modern obstetrics and neonatal intensive care is a world away from the position in 1929 when the Infant Life (Preservation) Act was introduced, and even from the late 20th century when C v S and Rance were decided. The criminal law must keep pace with these developments, and not allow the creation of a lacuna that undermines its protection of antenatal life. Accordingly, the next section proposes a solution to the problem identified.

Proposing a Solution

It is apparent, then, that the criminal law’s protection of antenatal life appears to suffer from a lacuna, and rapid developments in obstetrics mean that this problem is likely to worsen. This section suggests that the problem stems from the law’s failure to adopt a multifactorial analysis of the ‘capable of being born alive’ test based on expert medical evidence. It suggests that adopting such an approach is consistent with modern canons of statutory interpretation. It moreover suggests that the decided cases can be rationalised in light of such an approach.

To begin, it is clear that the problems in the current law stem from an undue focus on capacity to breathe in C v S and Rance. It is clear that C v S and Rance are dogged by ancient case law, where breathing was a crucial feature, and have approached the statute through the lens of parliamentary intent at the time of enactment. Thus, in Rance, Brooke J suggested that:

To interpret the intention of Parliament when it enacted the Act of 1929, I must put myself in the draftsman’s chair in 1929. ²⁵

The Infant Life (Preservation) Act 1929 must, therefore, be accorded an ‘always speaking’ meaning and construed in a manner conducive to capturing recent developments in medical science. In the 19th century, undoubtedly a focus on breathing conferred evidential certainty. In the 21st century, however, whether a foetus is capable of being born alive is a much more open textured question, which admits of a variety of evidence. As one Canadian decision put it, when considering the meaning of the ‘born alive’ rule:

Present medical technology renders the ‘born alive’ rule outdated and indefensible. We no longer need to cling to an evidentiary presumption to the contrary when technologies like real-time ultrasound, foetal heart monitors and foetoscopy can clearly show us that the foetus is alive. ³⁰

Irrespective of whether the question is one of viability, or is merely a task of taking the statutory words without gloss, a much fuller account needs to be taken of foetal development to apprehend fully whether a foetus is capable of being born alive. Improving medical technology will necessarily continue to redefine the meaning of ‘capable of being born alive’, and modern medical interventions are now able to support even the most medically complex foetus developing either within the mother with foetal surgeries or outside the mother with paediatric intensive care, artificial ventilation and medication. Consequently, it could be necessary for the medical and legal profession to rethink its approach to what it means to be ‘capable of being born alive’ in light of such developments.

This fuller, multifactorial analysis deals with many of the problems outlined above by allowing a broader investigation of factors beyond breathing. In the case of open foetal surgery, the court can look to the gestational development of the child even where the lungs have not developed, while in the case of future extra-uterine development, a multifactorial analysis endows the courts with maximum flexibility. Considering other aspects of development acknowledges, moreover, that the ability to breathe in premature neonates is a matter of degree, necessitating various levels of intervention. This reliance on broader medical analysis is bolstered by the fact that a similar approach is taken in other areas of medico-criminal law, as evidenced by the approach to ‘miscarriage’ in Smeaton.

The impediment to adopting this approach is one of precedent—C v S, as a Court of Appeal authority, binds courts below it, as does the High Court’s decision in Rance. However, adopting the multifactorial analysis advocated here, both C v S and Rance can be rationalised. It could be said that in C v S and Rance, the focus is not on breathing to the exclusion of all else. Rather, it could be suggested that in those cases breathing provided such decisive evidence either for or against capability of being born alive that it proved unnecessary to inquire into other factors. In future cases, where the evidence is more evenly stacked, a fuller analysis of all features of foetal development might prove necessary and instructive. Through flexible interpretation, the hurdle presented by existing case law might be surmounted. Adopting a broader approach to what it means to be ‘capable of being born alive’, informed by current medical evidence and opinion, therefore provides the best way of developing the law, and offers a means of rationalising the existing decisions on this point.

Conclusion

This article has considered the criminal law’s existing protections of antenatal and postnatal life and has suggested that advances in medical science has resulted in a lacuna in that protection. Accordingly, it appears that on the current law no criminal liability will attach to the destruction of a foetus in certain circumstances. This subverts the legislative intent of the Infant Life (Preservation) Act 1929 and is self-evidently an undesirable position. This article suggested that moving away from the focus on breathing in Rance and C v S, towards a broader multifactorial analysis, provides the best means of resolving the law’s deficiencies.