Recognition and protection for the foetus in the law

Criminal responsibility

D attacked and assaulted a victim V, a pregnant woman. D was unaware that she was pregnant. V suffered injury, and in due course, there was a stillborn birth. In a criminal prosecution and conviction and sentence for assault upon V, the harm caused by the crime would be that much more serious because of the pregnancy and the unhappy consequence. If D knew of the pregnancy, and accordingly of the greater vulnerability of V, the sentence in a criminal case would be that much greater. If D intended to harm or to destroy the foetus, the gravity of the act would be even more serious. (Sentencing Guidelines issued by the Sentencing Council.)

Knowing her to be pregnant, D stabbed V in the abdomen, constituting grievous bodily harm with intent to injure. A couple of weeks later, the baby was born grossly premature. Strenuous medical efforts were made on the baby, but he died some 3 months later. D was liable for GBH upon the mother and because of the unlawful and dangerous assault upon the pregnant woman causing the death of the baby after birth, he was also liable for manslaughter of the baby. The baby was still only a foetus when the initial injury was suffered, but had become a person when the death occurred. ¹ Logically the assault and the injury, the premature birth, were suffered by the foetus, only the subsequent consequence, the death, was suffered by the baby. Morally, ethically and socially, the result may be seen as commendable; logically only the death, the consequence of the injury not the injury itself causing death, was suffered by a person.

The victim of a crime, mother, but not the foetus, is eligible for compensation under the Criminal Injuries Compensation Scheme under the Criminal Injuries Compensation Act 1995, but the scheme is not noted for its generosity.

A pregnant woman drank to excess and seriously damaged the foetus. The child was born, suffered and would continue to suffer as a result during his lifetime. The court found that no poison or noxious substance had been criminally administered to a person as there was no person in existence at the time. ² Self poisoning is not a crime. A claim could be made against the state for social support in the normal way.

Civil liability

Congenital Disabilities (Civil Liability) Act 1976 ³

Where a tortfeasor commits a tort against a parent, the pregnant mother, and as a result, the child is born disabled, the child has an action against that tortfeasor, a derivative action, depending upon liability to the mother.

The qualifying statutory conditions are:

The child was born alive (s 4(2)(a)), having a life separate from the mother.

Examples of situations giving rise to liability:

A driver negligently knocked down a pregnant woman and as a result the child was born disabled.

Intentionally or negligently, the father knowing of his condition transmitted venereal disease or HIV or other transmissible disease to the mother which was passed to the child (s 3(5)). ⁴ Or the mother knew of his condition and the risk (s 1(4),(6),(7)).

The disabled child sues the doctor who carried out the IVF. Or the disabled child sues the doctor who professionally cared for the mother during the pregnancy. The doctor has a defence if he took reasonable care having due regard to the then received professional opinion applicable to the particular class of case; but this does not mean that he is answerable only because he departed from received opinion (s 1(5)). This proposition merely accords with the common law relating to doctors.

The father worked at a nuclear installation. He was irradiated. His child was born disabled as a result of the paternal irradiation. Or the mother worked at a nuclear installation, was irradiated, and her child was born disabled. The child has a cause of action against the father and the nuclear installation (s 3(2),(3)), unless either or both parents knew the risk of the child being born disabled (s 3(5)). The action must be brought within 30 years. The nuclear installation is strictly liable (s 3(1)).

The mother is not liable to the child, except where she knew or ought reasonably to have known that she was pregnant and drove negligently and the child was born disabled (s 2). The father is always potentially liable.

If the mother dies, but the child would have had a cause of action against a tortfeasor had she lived, that cause of action may still be brought on behalf of the child against the tortfeasor.

A criminal assault will normally also constitute a civil tort or wrong, but all too often the criminal is “a man of straw” barely worth suing. So the legal remedy may prove to be an illusion. Unfortunately, most citizens do not insure against personal injury, and having a disabled child; and the foetus cannot insure himself.

The pregnant mother and the father were warned not to abuse drugs and alcohol, but nonetheless both continued together to do so. The child was born disabled. The mother cannot be liable, but the father can be liable. Can he claim a discretionary reduction in damages payable by him on the basis that the mother, as least morally, should share the responsibility? Although only partly responsible, he is jointly responsible, liable for all the damages. The judge must decide whether it would be just and equitable to reduce the damages, and this is unlikely (s 1(7)).

The statute has apparently provoked no litigation. Once the negligence or tort or civil wrong committed against the pregnant mother has been proved a defendant is most unlikely to challenge liability for any disability suffered by the child. The defendant or his insurer will settle with or without admission of liability. The sympathy factor will be too strong.

Abortion

Procuring an abortion is criminal, ⁵ except under the Abortion Act 1967 where carried out by a registered medical practitioner, two registered medical practitioners being of the opinion that the pregnancy has not exceeded its 24th week and the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family, or that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated, or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. ⁶ The doctor must act in good faith, ⁷ and he must perform the operation, or at least give instructions, supervise, direct, control and act in accordance with accepted medical practice. ⁸

When capable of being born alive, namely 28 weeks, capable of breathing and living independently of the mother, ⁹ the foetus is described as a child, and child destruction is an offence unless the termination is carried out by a registered medical practitioner where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman (s 1(4)). ¹⁰

These statutes involve a compromise or accommodation between the public interest in preventing non-medical terminations, the desirability of involving the medical profession in certifying that the legal conditions apply, and in performing the terminations, the autonomy of the woman to decide upon matters affecting her body, ¹¹ without criminalisation, and a degree of protection for the foetus from wilful destruction.

Duty of disclosure

The doctor advising and caring for the pregnant patient is under a duty to take reasonable care that he is aware or should be aware of all material risks likely to influence the choice of the patient to go for treatment A or treatment B or indeed no treatment and to ensure that by disclosure the patient is fully informed. Alternative treatments and variant treatments should be disclosed. The duty is to disclose all risks which if known to the mother would or could significantly affect her decision. There must be a risk in every pregnancy, though most cases lead to a normal healthy birth. The possibility of a caesarean section and its risks should be disclosed. The possibility of a termination and its risks should be disclosed; the mother could be faced with a particularly difficult decision to make. However, disclosure, whether to make it, and, if so, how, must be tempered to the medical and psychological and intellectual status of the particular mother. Disclosure should not be such as to be physically detrimental to the mother, who may be fragile and vulnerable, and also could be detrimental to the doctor–patient relationship, the treatment and the recovery. ¹² The baby was unusually large. At natural delivery, the baby suffered shoulder dystocia. The patient had not been warned of this risk and had not been offered a caesarean. The doctor was liable. ¹³

The child was born with chromosomal abnormality resulting in severe disability. A 28-week gestational ultrasound scan did not reveal chromosomal disability and the doctor diagnosed placental inadequacy. The risk was 1:1000, though the consequences could be very serious. The judge held that the risk was theoretical rather than practical, material and significant, and that there was no duty of disclosure. In any event, the patient even if informed would not have gone for amniocentesis or termination. ¹⁴

Caesarean

Whether or not to perform a caesarean section remains a controversial matter. The birth mortality and injuries rates are equivocal and inconclusive. The National Institute for Health and Care Excellence (NICE) Guidelines and caesarean section overview and pathways indicate performance on demand, recognising the autonomy of the mother. The UK rate is around 25%. Experts advocate around 10%. The World Health Organisation (WHO) recommends a caesarean only where medically necessary.

Relevant factors which ought to be taken into account in reaching the correct ethical, social and medical decision would seem to be:

The wishes and informed consent of the mother.

Disappointing standards

Stillborn births, births of disabled children and obstetric mishaps are disappointingly high, higher than in most European countries. £1bn compensation is paid every year. No stillborn inquests are held. The reasons for the poor care appears to include inadequate screening, monitoring and testing of growth during pregnancy, a failure properly to monitor the foetal heartbeat in the late stages of the pregnancy, poor identification of risks, missed opportunities and a failure to follow national guidelines. ¹⁵

Genetic modification

Mitochondrial DNA disease is transmissible through the mother. Egg repair or embryo repair is now possible, by adding DNA from a third person, another woman, to remedy the defect, and the beneficial effect will pass down through the generations. In 2015 Parliament in the Human Fertilisation and Embryology (Mitochondrial Donations) Regulations 2015, SI 2015/572, authorised the HFEA to grant a treatment licence for the assisted conception removal and insertion procedure, developed by Professor D Turnbull of Newcastle University, to take place. This controversial move was widely supported; Professor Dame Sally Davies, the Chief Medical Officer, lent her support, as did the Nuffield Council on Bioethics. Personal characteristics are not affected. Reservations were expressed by some churchmen, ethicists and others on religious, moral, ethical, safety and effectiveness grounds.

Mental health problems

The pregnant woman may suffer mental health problems, whether an inherent mental impairment or mental illness, causing a lack of mental capacity, which prevents her from making informed and rational decisions relating to her welfare and that of the unborn child. Issues may arise over her obstetric care, or whether or not she should have a caesarean section, or whether restraint and deprivation of liberty would be involved or how to resolve a dispute between the clinicians involved. The Court of Protection will determine such matters affecting the welfare of the woman and the unborn child. ¹⁶

A detained mental patient may be so uncooperative and hostile to the doctors advising and treating her that she and her unborn child may be at serious risk. The Court of Protection may declare that the doctors may apply minimum restraint, such as to cause the least distress and denial of dignity, and carry out a caesarean. The interests of both mother and child should be considered, but the interests of the mother should take priority. ¹⁷

Conclusion

Issues affecting the unborn child raise profound religious, moral and ethical problems, so only Parliament can set the basic legal principles and policies. The criminal law protects the mother, the foetus and the child; although the criminal injuries compensation scheme is very narrowly drawn. The law appears to give priority to the autonomy of the mother, giving her a civil remedy against the tortfeasor, giving her abortion almost on demand and providing a derivative remedy for the child born disabled where the overriding interests of the mother do not conflict.