Despite its invasion by ultrasound and, sometimes, more dangerous tools, the uterus is a secret place. What happens there is biologically mysterious. The effects of gestation can be described in a fairly crude anatomical way. So too can a few of their more superficial causes. But the nature of the process and the detailed blueprint of the engine that drives it remain baffling.
The law has been content to leave metaphysics out of its own intrauterine fumblings. It has refused to be drawn into philosophical debate about the status of the early embryo, preferring to navigate the shadow lands of the unborn using its familiar instruments of rights and duties. It uses them with a fitting, deferential caution.
Rights and obligations to reproduce
The position in most places is this: if you want to be a parent, then generally, if nature’s left you the option, you can be. You can fuse your gametes with almost anybody’s. And if you don’t want to be a parent, then you needn’t be.
It’s not surprising that the law defends the right to reproduce-or, at least, doesn’t put many obstacles in the way of people wanting to do so. The urge to parenthood is one of the most fundamental urges there is, and the shadow of eugenics remains rightly scary.
Limitations on the right to reproduce are few and far between. Many cultures have, for obvious genetic reasons, prohibitions on incestuous unions, and, for the same genetic reasons, prohibit the creation of embryos by artificial reproductive procedures from the gametes of (for instance) parents and children, or siblings. Nor may you, in most places, create (or create and bring to term) a chimaeric embryo resulting from the fusion of human and non-human gametes. The state regulates reproduction by the young, too, by insisting that one cannot lawfully have sexual intercourse or marry below a certain age. But, incest, age, and technological bestiality aside, you can go forth and multiply.
Article 12 of the European Convention on Human Rights summarizes the international zeitgeist: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ The second clause could drain the first of its significance, but in fact in no jurisdiction does it do so.
It doesn’t follow, though, that you’ve got a right to state funding for in-vitro fertilization (IVF), or, if you’ve been locked up, that you can force the authorities to let your wife into jail for a conjugal visit at the time of your choice (see ELH and PBH v United Kingdom (1998-))- although if she’s teetering on the edge of infertility it might be different: see R (Mellor) v Secretary of State for the Home Department (2002).
While it might be unsurprising to hear that there’s a right to reproduce, it’s so utterly unsurprising that there’s no obligation to reproduce that it might seem odd to mention it at all. In fact there’s a perfectly sensible reason for mentioning it-a reason that has been much discussed in the courts.
Before Diane Blood’s husband died, some of his semen was harvested. Diane Blood wanted to use it to conceive a child. No, said the court. The rules prohibiting this were entirely reasonable: they were made to avoid the spectre of a man being confronted, emotionally or financially, by a child of whom he had no knowledge. The rule had a brutal consequence in that case, but that was no reason to overturn it: see R v Human Fertilisation and Embryology Authority ex p Blood (1997).
One might have thought that the situation would be different if it involved the implantation of already existing embryos, rather than the mere use of sperm. Perhaps the weight of the embryo’s interest, joined to that of the mother’s desire, would prevail over a man’s reluctance to propagate. But no, the autonomistic right not to be a father trumps all the countervailing considerations: see Evans v United Kingdom (2006).
We see the same thinking at work where the father of an embryo asks the court to prevent his wife or girlfriend from having an abortion. Where abortion is lawful these applications have failed. The right not to be a parent outweighs the right to be one: see Planned Parenthood of Central Missouri v Danforth (1976); C v S (1988) and Paton v United Kingdom (1981).
From this entire one might conclude that the rights of embryos and fetuses don’t amount to much-at least where they conflict with almost any other rights. As a general proposition that’s not inaccurate.
The rights and non-rights of the embryo and fetus
The law can’t be accused of inflexible consistency. And still less of philosophical sophistication. At the time of writing, abortion was permitted in some circumstances in all countries in the world except for a very few, very Catholic Latin American countries. But those circumstances vary very widely.
Some permit abortion only where it is necessary to save the woman’s life; others permit it under any circumstances. Generally, and unsurprisingly, the more religiously committed the country, the harder it will be to have a lawful abortion. But that doesn’t necessarily mean that countries with liberal abortion laws are blithe about the status of the embryo. On the contrary, their jurisprudential rhetoric often indicates a thoughtfulness sometimes lacking in the more stridently anti-abortion states. It’s just (they’d say) that, having considered the matter carefully and painfully, they’ve decided that the plainly identifiable rights of a solid, adult mother should prevail over the misty, conditional rights (if any) of the mysterious embryo.
This is nonsense, say the anti-abortion activists. Yes, you’ve got two sets of rights in competition here: those of the mother, and those of the embryo. Only very rarely will the mother’s right to live be at stake. When it is, even the most conservative Catholic agrees that it’s a different matter.
What’s usually at stake is the mother’s right to avoid an uncomfortable few months of inhabitation by a growing parasite, and then some truncation of her ability to live her life in exactly the way that she chooses. These, say the pro-lifers, are essentially convenience rights-the sort of rights protected, for instance, by Article 8 of the European Convention on Human Rights. And, goes the argument, they must always be trumped by the hugely more weighty right to life (expressed, for instance, in Article 2 of the Convention) possessed by the fetus. Isn’t this obvious? Convenience rights must, logically, be conditional on and subservient to the right to live: if you don’t live, you can’t experience convenience.
Much has been said about this argument. We return to it in a moment. But for now it’s enough to say that it has been thought to have enough force for legal writers and judges (many of whom want to keep open the option of legal abortion) to be wary of according any rights at all to the embryo-at least in its early stages. That’s often taken the form of denying to the embryo/fetus/unborn child (and what a storm erupts whenever one uses the term ‘unborn child’ incautiously) any legal personality at all. In such a scheme a child magically becomes a fully human being, invested with all the protection of the law, when (and essentially because) it moves the few inches from inside the uterus to outside the vagina. That has the advantage of neatness, but the disadvantage of discordance both with biological facts (the facts, for instance, of incremental fetal sophistication and the possibility of viability from about 23 weeks gestation) and with intuition.
In some areas of the law, though, it’s legally convenient for the fetus to exist. And so, for those purposes, it does. In English law, for instance, a fetus can inherit an estate. But for other purposes it is not so convenient. And so, by legal sleight of hand, it vanishes. Now you see it, now you don’t.
Here’s how it’s put: ‘It is established beyond doubt for the criminal law, as for the civil law … that the child en ventre sa mere does not have a distinct human personality, whose extinguishment gives rise to any penalties or liabilities at common law.’ Attorney General’s Reference (No. 3 of 1994) (1998): UK House of Lords
‘To permit an unborn child to sue its pregnant mother-to-be would introduce a radically new conception into the law; the unborn child and its mother as separate juristic persons in a mutually separable and antagonistic relation …’ Winnipeg Child and Family Services (Northwest Area) v G (1997): Canada, Supreme Court ‘There can be no doubt that in England and Wales the foetus has no right of action, no right at all, until birth.’ Paton v Trustees of the British Pregnancy Advisory Services (1979): UK, Court of Appeal.
The device of the inconsistently existing fetus has been used for various purposes. In Canada and in many other places, for instance, a fetus cannot sue its mother for causing it damage during pregnancy.
And yet if a doctor, or anyone else, causes the fetus harm (for example by negligently administering drugs to a pregnant mother), the fetus, once born, can sue the doctor for damages. The doctor couldn’t say: ‘At the time of my negligence you didn’t exist: how can I possibly have injured a non-existent person?’ or ‘Your identity was inextricable from that of your mother, and so she should be suing, not you.’
There’s a glaring anomaly here. What the law is really doing is saying to the fetus: ‘If you survive gestation and become a person, we will retrospectively credit you with sufficient personality to be legally injured.’ That’s intellectually uncomfortable. So too is the mother’s immunity-particularly if retrospective credit is really what’s going on. Why should the person who is most obviously connected to the child, who has the greatest ability to harm and protect it, who should (surely) be regarded as having some sort of trusteeship responsibility to the unborn child, be the only person incapable of being fixed with meaningful legal responsibility?
At other times it’s useful for the embryo/fetus/unborn child to exist in some sense. And so, it’s now unsurprising to hear, it does. It is given sufficient existence and the necessary qualities for the purpose in hand.
Some examples. In IVF procedures, many ‘spare’ embryos are produced. How should they be treated? Intuition suggests that they should be treated with respect, and so they are given sufficient status to justify that respect. Most jurisdictions have legislation or case law that says more or less that. The UK Polkinghorne Committee on the use of embryos/fetuses in research (1989) expressed the international consensus. It spoke of the fetus having ‘a special status … at every stage of its development which we wish to characterize as a profound respect based on its potential to develop into a fully formed human being’.
In the context of forced treatment of a pregnant mother, in order to save the child, the English Court of Appeal observed that ‘Whatever else it may be, a 36-week foetus is not nothing; if viable, it is not lifeless, and it is certainly human’: St George’s NHS Trust v S (1998).
This convenient but slightly disreputable agnosticism about the legal status of the embryo/fetus is the current position of the European Court of Human Rights. That position emerged out of the tragic events in Lyons General Hospital.
Two women, both called Mrs. Vo, were there on the same day. One was six months pregnant. The other was there to have a contraceptive coil removed. There was a mix-up. The doctors tried to remove the non-existent coil from the pregnant Mrs Vo, puncturing her amniotic sac. The pregnancy was doomed. A termination was performed.
The case found its way to Strasbourg. The question was whether the unborn child had a right to life under Article 2 of the European Convention on Human Rights. The relevant part of the Article states: ‘Everyone’s right to life shall be protected by law.’ But did ‘everyone’ include an unborn child? The consequences of an unqualified ‘yes’ were of course profound. Abortion laws would be in jeopardy.
So the majority opted for equivocation. It decided not to decide, observing that ‘at European level …there is no consensus on the nature and status of the embryo and/or fetus … At best, it may be regarded as common ground between States that the embryo/fetus belongs to the human race. The potentiality of that being and its capacity to become a person-enjoying protection under the civil law … require protection in the name of human dignity, without making it a “person” with the “right to life” for the purposes of Article 2 … Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2’ (Vo v France (2004)). So: it has some status, but we’re not going to tell you what that status is, or its corollaries.
The position in the US is very similar. The fetus isn’t a ‘person’ within the meaning of the 14th Amendment of the Federal Constitution (see, for instance, Blackmun J in Roe v Wade (1973)) and yet in some circumstances (and particularly once it reaches the crucial watershed of about three months’ gestation) may nonetheless, by analogy, or by legal wriggle, or by political expediency, be entitled to 14th Amendment protection.
So it is that the law has been able to limp by with piecemeal solutions. Without a clearly identifiable status, it’s going to be hard for embryos to resist harm. They will be outgunned by just about any real person. And even unreal people. One of the objections to granting embryos rights in the same currency as the rights of real people is that embryos are only potential people. And yet research on embryos is often permitted (for instance in the UK) on the grounds that the research may be of value to people as yet unborn. I’m not saying that’s wrong; but it is untidy.
The state rarely insists that a mother must not carry a child to term, although it insists that children of a particular genetic complexion should not be conceived in the first place (the laws against incest). But it may happen. An incapacitous patient who becomes pregnant may be forced, against her will, to have an abortion. The judgment will typically be expressed in the language of the best interests both of the mother and of the welfare (were it to be born) of the child. What’s happening here? The maternal best interest’s part of the analysis is fairly straightforward. This isn’t really an abortion against the mother’s will. She’s got no (rightly directed) will. But what about the interests of the putative child? A couple of points. First: it is given a voice in the debate (although for other purposes it has no legal existence) because it is convenient for it to have it. It will obligingly deliver a speech saying that it doesn’t want to exist, and will then shut up. It’s allowed no other speech. Second: in the law of the UK and in many other jurisdictions a child cannot bring a claim based on the assertion ‘It were better that my mother had not borne me.’ It’s regarded as offensive to public policy: see, for instance, McKay v Essex AHA (1982). If public policy forbids such a claim by a child, why should it permit it-still less invite it and rely on it-from an unborn child?
There’s widespread public unease, and some judicial unease, about claims by parents in relation to the financial costs of unwanted children. These typically occur where a sterilization has been performed negligently, or there’s been a failure to warn about the risk of a sterilization operation reversing. The parents then claim the costs of upkeep.
These are uncomfortable claims. They involve the parents unwishing the child. In the UK, the discomfort spread to the House of Lords, which said that the birth of a child should conclusively be presumed to be a blessing which more than cancelled out the associated financial detriment: see McFarlane v Tayside Health Board (2000). That’s policy speaking. But it’s a policy that doesn’t seem to extend to regarding the unborn child as a blessing. Fair enough: who said that the law had to be internally consistent? Which brings us back to abortion itself.
There are two legal ways of looking at abortion. The first is expressed in terms of rights. One jurisdiction might say-perhaps at a particular time of gestation-that ‘Abortion is a mother’s right’ or ‘The fetus has a right not to be killed.’ The second is that abortion is a prima facie wrong, but that there are defences to it. The first of these approaches is exemplified by the US, and the famous Supreme Court decision of Roe v Wade (1973). The second is exemplified by the UK.
The majority in Roe discovered, in the 14th Amendment’s concept of personal liberty and restriction on state action, a constitutional protection of ‘a woman’s decision whether or not to terminate her pregnancy’. But the woman’s right, said the court, was not absolute: a state, according to the majority, ‘may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.’
The state, then, legitimately acts as a referee in a struggle between two competing rights-those of the mother and those of the fetus. The fetus’s rights grow incrementally. During the first trimester the state’s primary interest is in protecting maternal rights. During this period ‘the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment, the patient’s pregnancy should be terminated’. But the state also has an interest in protecting fetal life. When might that justify interference with the woman’s continuing right to determine what happens to her own body? The tipping point, held the court, was fetal viability. Then the fetus could have a ‘meaningful life’, independent of its mother.
Accordingly: in the first trimester, the state must leave the woman to choose. Thereafter, until fetal viability, the state may regulate abortion in ways that are reasonably related to the mother’s health (which was clarified in Doe v Bolton (1973) to be determined as a medical judgment in the light of all the factors pertinent to maternal well-being). After the time of fetal viability the state may, if it chooses, regulate abortion, even to the point of banning it (except where abortion is necessary to preserve the mother’s life or health).
There’s an odd asymmetry here. The state is required to leave the mother alone in the first trimester. Put another way, it is required not to protect the fetus then. But it is not required (although it is permitted) to protect the fetus during the time of viability. Its two obligations (to protect maternal health and fetal life) are not equally onerous.
Many jurisdictions analyse abortion problems in a similar rights-based way. Often, in such analyses, the fetus is better protected than it is in the US. Many of the countries which assert that the right of the fetus to live should trump that of the mother to be uninhabited rest that assertion on theological presumptions about the status of the embryo (many Catholic and Islamic countries) or on some dignity-based beliefs about its status (for instance Germany).
The UK, in common with many of the Australian states, does not speak of abortion as a ‘right’ (although no doubt a contention along those lines could be advanced in the language of Article 8 of the European Convention on Human Rights which, very broadly, gives a right to live our lives as we please-which might include a right not to be encumbered with an unwanted child). It chooses instead to say that abortion is unlawful, except where it isn’t. The fact is, though, that until 24 weeks of gestation (when the rules change) there is abortion on demand in the UK. That’s not to say that there’s a right to it: it’s just to say that you won’t have any difficulty finding a clinic to do your abortion for you in a way that will leave it entirely immune to prosecution.
This, ironically, makes life more dangerous for the fetus than in rights-based jurisdictions. Where the notion of rights is taken sufficiently seriously to be the basis of the mother’s security, there’s at least the possibility (theoretical though it often is) of the fetus putting up its developing arm and demanding, by the same token, a right to be heard.
The cloning debate
Identical twins are clones. They’re not especially frightening or necessarily dysfunctional. And yet the spectre of creating clones is scary to almost everyone. In relation to reproductive cloning (the cloning of an embryo with the intention of bringing it to term) the fears don’t seem to be located consistently in respect for the status of the human embryo. Instead they are fears about overstepping the limits of legitimate interference with nature (‘playing God’), or distaste at the thought of a woman giving birth to herself or her partner, with all the psychological fallout that would entail for everyone involved.
The ethics are complicated. The law, by and large, is not. Human reproductive cloning is unlawful almost everywhere. The regulation of therapeutic cloning (the creation of cloned embryos with the intention of using them for research) is more politically controversial. It is permitted in the UK, for instance, with decisions about the permissibility of a particular application being delegated to an independent scrutineer (the Human Fertilization and Embryology Authority). In the US, regulation is a patchwork of state and federal legislation. When a Republican government is in, embryo research will tend to be out.
Where embryo research is unlawful, the legislature has made some sort of judgment about the status of the embryo, and decided that the respect the embryo deserves warrants the disadvantage to potential beneficiaries of research that prohibition of research will entail-some sort of calculus along the lines of: ‘The moral bad involved in the creation of embryos and their destruction outweighs the moral good of a chance of curing motor neurone disease.’ That sort of calculus is easy enough if the potential good is to unidentified people. It’s easy to dismiss a faceless abstraction. It’s much harder to look a real person in the eye and say: ‘For my belief in the inviolability of the eight-cell embryo you must die.’ That’s often what the ‘saviour sibling’ cases boil down to.
Zain Hashmi, aged three, had beta-thallasaemia. His best chance of survival was by receiving stem cells from the umbilical cord of a sufficiently well tissue-matched sibling. The chances of conceiving such a sibling naturally were not good. So his parents sought permission to create embryos by IVF. Then, at about the eight-cell stage, a cell would be taken from each embryo and tested to see if the embryo would do the job. The application was approved by the UK regulatory body, but a pro-life group, opposed both to the destruction of the unused embryos and to what they saw as the instrumentalizing of human life, challenged the approval. It lost: see Quintavalle (on behalf of Comment on Reproductive Ethics) v Human Fertilization and Embryology Authority (2005). The case turned on some technical niceties, but the point of principle remained painfully clear. It divided even the pro-life lobby. Are you really pro-life if you’re content for a three-year-old to die?
Similar cases have made judges in several jurisdictions pace the floorboards in the early hours. Lawyers tend to like absolute positions: to say that something has a definite, inalienable status. They tend to think that such positions make life easier. But if everything with a human genome has inalienable human status, the most religious, conservative judges are forced into a moral and legal relativism that is visibly uncomfortable for them. Life’s not straightforward if you abandon your stereotypes and see it as it really is. And since life isn’t straightforward, nor can the law be.