The Fetus and the "Right to Life"

Author(s): Glanville Williams

Source: The Cambridge Law Journal , Mar., 1994, Vol. 53, No. 1 (Mar., 1994), pp. 71-80
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal

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Cambridge Law Journal. 53(1), March 1994. pp. 71-80
Printed in Great Britain

ARTICLES

THE FETUS AND THE "RIGHT TO LIFE"

Glanville Williams

For Man to tell how human Life began

Is hard: for who himself beginning knew?

Milton, Paradise Lost, Book 8.

The philosophical answer to Milton's problem is, like s

philosophical answers, a counter-question. What do you
human lifel This could involve further probing of a kind th
Darwinian like John Milton would fail to comprehend.
include Neanderthal man, for example, in "human life", or
want to start with Homo sapiensl
A resurrected Milton might protest that in writing Para
he was not concerned with problems of evolution (of whic
not previously heard). His question suggests that he was thi
the "life" of a particular "human being,,#, but he knew so littl
we now call biology that he would probably have been as no
by the biological answer to his problem as one given in
prehistory.
The debate is ancient, but it still rumbles on, fuelled by diff
of religious opinion, and now has even surfaced in the E
Court of Human Rights. English law does not try to an
question when human life begins, but it gives a clear answ
question when human personhood begins. It begins with birth,1

Tait [1990] 1 Q.B. 290 (a threat to a prcgnant woman to kill her fctus is not a thr
"person"); Hamilton v. Fife Health Board (1992) The Times, 28 January. The poin
days of argument to settle in Brady (Crown Court 1993), The Times, 7 July. In Canad
to life conferred by the Charter of Human Rights has been held not to encompas
Borowski v. A-G of Canada [1987) 4 W.W.R. 385; cp. Tremblay v. Daigle [1989] 2
Purely on terminology: the word is often spclt "foetus", and is so spclt in statutes; b
ctymologically correct and is now coming to be preferred in medical writing ([19
425; [1972) 2 Lancet 1123; (1981) 2 Lancet 1085; 3 Biochemistry Society Bulletin. Dec
288 B.M.J. 1605). The e is long. Medical parlancc distinguishes between the embryo, u
8 weeks' gestation (by which time it is sufficiently developcd to be unmistakably hum
fetus which it them becomes; but the distinction has no legal significance. and legal w
not generally adopt it. Both embryo and fctus are here denoted by the latter term.

71

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72 The Cambridge Law Journal [1994]

means that the child must be completely extruded

Some may object that lawyers are too apt to
ultimate problems of life are questions of law. W
problem, it may be said, he was thinking about
questions that may at first appear to be about fact
be about language or concepts or emotion. (D
denying the importance of emotion, which has a
upon conduct; I am simply pointing out that our e
empirical facts nor word-meanings, even though lang
emotion.)
Induced abortion after the early weeks of pregnancy is in varying
degree regrettable or distressing (even if a distressing necessity),
because an incipient human being is being destroyed. Some would
say, impatiently, that induced abortion is more than distressing: it is
utterly (or almost utterly) wrong. It offends against the religious
belief in the sanctity of life. This is the traditional Judaeo-Christian
view, and, before the present century, the historic tenet of the
medical profession, evidenced by the Hippocratic Oath, which has
been dated to the 4th century BC. (Hippocrates allowed abortion for
slave prostitutes, so he was not entirely consistent in his teaching.)
The law followed religion in this matter, the more readily because
for most of our history inducing abortion was a dangerous procedure.
But the crime continued after medical science had advanced to the
stage when medical abortions were possible. If the crime of abortion
had never been invented, the doctors would then have been allowed
to provide women with a service that they wanted, and would hav
refined medical practice so as to achieve a reasonable compromise
between conflicting ideals. This is the position at which we hav
finally arrived in this country, but only after much acrimonious
debate.
The argument turns in part on the meaning of words. Ordinary
language is uncertain. Women who are happy with their pregnanc
think of themselves as carrying a child, or an unborn child, whil
unwilling mothers tend to use the unfriendly word "it" ("getting ri

2 See C. v. S. (judgment of Heilbron J. affirmed in the C.A.): [1988) Q.B. 135; (1987) 1 All E.R
1230; Rance v. Mid-Downs H.A. |I991) I Q.B. 587. Whether the infant musi bc able to breath
without mcchanical assistance is left undecided. Dr. I.J. Kcown. a vigorous opponcnt of effor
to reduce the scope of the abortion law, challcngcs C. v. S.. because in his view an unborn chi
can be murdcred. One of his reasons is based on Coke's rule (scc note 8 below). which
contemplates that a child can be the subject of murder if it is born after it has quickened;
quickening takes place well before the child is able to breathe; therefore. he concludes. breathing
is unncccssary for livc birth ((1988) 104 L.Q.R. 141). The reasoning is fallacious. Coke's rule
required both (t) quickening and (ii) livc birth; the fact that a child can quicken without being
able to breathe does not dispense with the necessity for live birth. In Coke's time the legal
definition of livc birth was unscttlcd. and in addition he may well have been hazy about the
obstetric facts. His requirement of quickening is no longer part of the law.

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C.L.J. The Fetus and the "Right to Life" 73

of it"), or, medically, the word "fetus". We cannot give

sympathies in our attitude to abortion.
In the past, women did not much like the word "pr
general social conversation. The genteel term was "exp
expecting a child. They were "in the family way", rath
a family. It is natural for people to speak prolepticall
fetus as an "unborn child", just as we may speak histo
woman's "dead child", but neither an unborn child nor a dead child
is a child now.
Also, lawyers need precise language, and it is legally incorrect to
suppose that an "unborn child" is a child. A woman who claimed
social security benefit on account of her "child", without mentioning
that it was unborn, would get into trouble. In the early stage of fetal
development some people, not only lawyers, would incline to think
the phrase "unborn child" out of place. It would certainly be odd to
refer thus to a microscopic fertilised ovum, or to the mass of cells
into which it shortly develops—cells nearly all of which will be shed
as parts of the afterbirth. To call this an "unborn child" would be a
flight of fancy.
The philosophical debate is whether there is a difference in moral
status between the fetus (using that word to include the fertilised
ovum) and the born child, and, if so, what the moral status of the
fetus is. The answer cannot be given by studying ordinary language,
or even (as some erroneously suppose) by studying the proven facts
of biology. Moral conclusions can be regarded as immediately "given"
only by intuition, or by the instruction of another whose authority
one respects, or else by derivation from accepted moral premises;
but it is just as well for the moralist to know the facts to which he is
applying his moral opinions.
In practice the question of the moral status of the fetus depends
very largely upon one's own religious belief. Some believers do not
regard their religion as affecting this status, and consequently as
affecting the question of abortion; others do. Humanists, by defini¬
tion, subscribe to ethical beliefs that they think of as being indepen¬
dent of religion.
The connection between attitudes to abortion and religious belief
is somewhat obscured by the fact that those who are most strongly
against induced abortion word their objection in terms of the "right
to life" of the fetus, rather than upon religious grounds. Obviously,
they hope to win more assent from non-believers by expressing
themselves in secular terms than by avowing a religious position. The
Constitution of the United States forbids the establishment of religion,
and therefore, one would think, forbids the turning of religious sins
(as such) into secular crimes; but Americans can campaign against

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74 The Cambridge Law Journal [1994]

legal abortion, without apparent disloyalty to the C

disavowing the religious basis of their campaign. Mo
for "human rights" in general is the current vogu
sales ploy.
Ronald Dworkin, in his recent book Lifes Dominion, recognises
that the anti-abortion position is basically religious, but suggests that
a compromise can be reached if the two sides would agree that
although "human life is sacred", Government has no right to dictate
an anti-abortion position. While applauding anyone who argues
against religious bigotry I must say that there is no sign of such a
"compromise" being reached. So long as the anti-abortionists see
induced abortion as murder or near-murder, which is absolutely
forbidden, while the pro-choice camp regards it as a matter for the
individual conscience, there is no hope of agreement.
I myself write from a non-religious point of view, that is to say, as
a humanist. In the words of a lapsed Quaker, "I have no religion
now, thank God". Nevertheless, I hope I shall be believed when I
say that it is not my intention to mount a campaign against any
religion. 1 find the details of some world religions to be against the
public interest (doesn't everybody?), but many people derive comfort,
inspiration, friendship and guidance from metaphysical belief, which
1 do not seek to question. Having made this disavowal, I return to
the subject. Can the fetus acceptably be said, even from its earliest
stages, to have the right to life of a human being? You and I may
think of ourselves as entities sharply distinct from the rest of the
world, having, as some of us hopefully suppose, immortal souls,
unique to Man. However this may be, there are no sharp lines in
nature. Abstract human life does not "begin"; it just keeps going.
Our genetic constitution derives from a separate ovum and sperm
(themselves deriving from two other humans), which progressively
fuse together. This fused cell, the zygote, is a discrete, unicellular,
live creature with a complete set of human genes. Does this provide
the answer to Milton's problem?
Many (not all) moralists of the Roman Catholic persuasion, and,
I suppose, all of the anti-abortion or "pro-Iife" lobby, believe so.
They hold that the two germ-cells become a "moral person" (a person
for the purpose of our moral beliefs) at "the moment of conception",
when they fuse to become one. The new person hasn't actually arms
or legs; it hasn't actually a brain, or nervous system, or lungs, or even
a heart. Our ancestors at one time imagined it as a little man, a
homunculus, who would be seen to be such if viewed through
a sufficiently powerful miscroscope. Now we have the powerful
miscroscope, and know better, but still (it is argued) the creature
must be a human being. It is a being—no one can deny that; and it is

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C.L.J. The Fetus and the "Right to Life' 75

human—it is not a chimp. So putting one and one togethe

a human being. Or, at least, it is a potential human being
law should protect as such, because all life is sacred.
Is that convincing? Humanists reply that abstract hum
as such, is not sacred. Devotees of a particular religion
their own priests as sacred, but we are not all sacred. T
wrongness of killing lies not in the special sanctity of th
in killing a fellow-human (certain situations of overwhelmin
apart). No sensible understanding of the sanctity of life
to breed without limit, a short-sighted propensity that in th
a whole is already creating severe family and environmental
which will be enormously increased within the present gene
alone future ones. Ideally, it is true, population control
achieved by contraception; but some of those who most
want to punish any interference with the developing fet
to forbid artificial contraception. One thing is certain:
accept either abortion or an efficient system of contra
both, there are bound to be unwanted pregnancies.
Micawber memorably observed, accidents will occur i
regulated families; and many couplings are totally
"regulation".
Critics of the old abortion law, the "pro-choice" lobby
I give my own allegiance, think it absurd to argue that
human being, in the moral sense, at all stages. We pro-ch
led to our opinion because we were repelled by the imme
of suffering caused by the unreformed abortion law, whi
compelled people to be parents without their wish. The e
are listed briefly in a footnote,3 were very largely, though n
ended by the Abortion Act 1967. The memory of them

3 Girls as young as 12. pregnant by their fathers. were refused abortions. Special
wcrc opened for expectant mothcrs aged from 12 upwards. in order lhat they
with their lessons while looking after their babies. Women who had been raped.
by their husbands, and overburdened mothers living in poverty with large famili
get a medical abortion. One "libcrar hospital in London and one in Ncwcastlc
operation comparativcly frcely. but the doctors concerned suffered faint opprobr
who should have known better (the couragcous London doctor who operated w
laid down in Bourne |1939] 1 K.B. 687 was known as the "Gower Street aborti
example was not generally followed. Abortions could bc readily bought in Harlcy
general the mass of women could only go to a "back-strect abortionisf. wicl
necdle. syringe or stick of slippcry clm. or to a skillcd operator acting illegally f
Some unwilling mothcrs-to-be used dangerous methods on themselves. A tccnagc
quininc to producc a miscarriagc became blind (letter by Dr. C Brewer in The
1965). Other women became paralysed for life or gravely impaired in health:
suicide. Although illegal abortions ran into thousands each year. convictions were
few (less than a hundred a year). largely because women who had sought
abortionist were unwilling to give him away. but partly also because the police t
not to look upon abortion as a real crime. The only people who wcrc effectivcly
law wcrc the doctors. who alonc could operate safcly. The problem was common
countries that startcd with an unqualified prohibition of abortion.

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76 The Cambridge Law Journal [1994]

been blurred by time, but they continue in some oth

remain a horrendous example of the danger of
controversial and a priori morality into law.
The idea of a moment of conception when a new
miraculously created is over-dramatised, and results
of modern biology. The "moment" when the two ga
and the ovum) fuse resolves itself under the mi
succession of clearly discernible stages, which may
more to complete. No one of these stages identifies i
the "moment of conception". However you date ma
is, like his ending, a process.
The pro-life argument about "human beings"
obliterate an important distinction by playing wit
would think of maintaining that an acorn is the sam
because both are "quercine beings". The term "h
commonly applied to a member of the human com
zygote or fetus is not.4 A human being, or person
more than a zygote. Fusion of the two gametes pro
"person" but only an organism that will in due cour
become a person; and then opinion diverges on
transition from "becoming" to actual "personhood"
Biology gives no clue. After fertilisation the hu
about three days to travel down the uterine tube (t
to the womb, dividing as it goes, so that on entry t
microscopic organism has eight cells, no one of wh
from the others. On about the 10th day (if it is lu
embed itself into the womb-Iining ("implantation"
("Luck" is required because at least 40 per cent., an
of human preimplantation embryos are spontaneou
the first 14 days after fertilisation the name "pre-
authoritatively suggested; it is certainly preferabl
unattractive term "blastocyst".
Implantation is a vital step in the development of
the pre-embryo is now safer than it has so far been
Some would date conception from this point, an
medical opinion now regard it as the starting-poin
"unlawfully procuring a miscarriage". It presents f
and less social strain than starting with fertilisation, b
is that legal personality (and therefore the law of

Rccalling a discussion of research on human embryos. Dame Mary Warn

vehcmence: *To say, as one spcakcr did. that there is no difference betwe
14 days or 40 days or up to 40 years. that there is really no difference be
fully-grown child, is an absolutely prcposicrously stupid thing to say".

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C.L.J. The Fetus and the ''Right to Life" 11

date from implantation, this would be open to almost al

theoretical and practical objections as dating it from ferti
At about the 14th day the conceptus develops a gro
scientists (and now Parliament5) dub the "primitive s
beginning of cell differentiation. If the primitive strea
form, there will be no embryo, and the cluster of cells
visible to the naked eye) will be re-absorbed and vanish.
say that we all begin with the primitive streak?
Here we go again. This tiny cell-cluster cannot rea
called a "person". The quest for personhood at this
development would be ridiculous.
Jumping the rest of the biological details, it suffices to sa
lungs are not formed before the 18th week, when they s
take in air; to reach this stage the fetus must not be born
23rd or 24th week. Timing is approximate; nature does n
a clock, and any fetal age one fixes is to some extent arbi
itself is a process (as death is).
Summing up, although one can see notable events,
stages, in our genesis, none of them gives an inevitable
Milton's question; they merely confirm him in his impre
is a hard problem. Ovulation and the ejaculation of sperm
events. So is fertilisation. So is implantation. So is the d
of the primitive streak, and later of heart, brain and lu
birth. Without all these events (and not merely some of
and I would not exist.
The pro-lifers think they solve the problem by admitting that the
development of the fetus is continuous; they say that because no line
can be drawn, the law must protect the human organism from the
time of fertilisation. But what is the logic (never mind the practicality)
of beginning with fertilisation? It is an essential stage in our develop¬
ment, but so are all the others. It has been well said that "life is a
continuum which semantics, ethics and the law force us to divide at
arbitary points".6
Before birth, the law of abortion gives the fetus limited legal
protection (increasing as gestational age advances), but there is now
general (not universal) agreement that the degree of protection
given by the law of abortion must depend on practical considerations,
including the degree of development of the fetus, the injury that
may be done to the woman and her existing children if she gives

Human Fertilisation and Embryology Act 1990, s. 3(3)(«).

Malcolm Potts in |1983| 2 The Lancet 223. Hc went on to say: "To pursuc a less cmotive parallel
from postnatal life. we would not in a democracy give the vote to a child of 6 months or withhold
it until an individual is 60, but whether the franchisc is given at 18. 20 or 30 is an arbitrary
decision".

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78 The Cambridge Law Journal [1994]

birth, and the question whether the fetus is defective

of the law has left the decision on these questions ve
doctors, but they are themselves divided in their mor
the face of such disagreements, should not the questi
at least during the major part of pregnancy, be left
and doctor concerned?7 But we have not yet arrived a
In contrast, those who are wholly opposed to abortion,
to-lifers", wish not only to preserve the law of abort
rigour but to move its application backwards, at leas
stages of pregnancy, when they would count abortion
manslaughter according to the mental element. In the
the fetus is recognisably (indeed, poignantly) human, a
anti-abortionists make use when they send hundreds of p
to M.P.s during a debate on abortion. Their argumen
fetus at a certain stage of development not only look
human. But here again we are getting tied up wit
conceptus is, in one sense, human from the start, jus
quercine from the start. The question is not whether t
human but whether it should be given the same lega
you and me. Late abortions are allowed by law in very
but obstetric surgeons are well aware of the objectio
terminations and rarely feel the need to perform them
are not allowed to perform them except as specified b
The apriori argument that a fetus is a "human being
would be enormously effective. It could, at a stroke,
modern legislation allowing medical abortion withou
the grounds are sufficiently serious—which is, of course
lifers favour it. There is nothing to support it in Eng
may conceivably derive argumentative assistance from
Convention on Human Rights. In a case before the Stra
the issue was whether the Irish Supreme Court could,
forbid people in the Republic of Ireland to give info
terminations of pregnancy in Britain (Irish women be
to travel to Britain in large numbers—about 4,000 a
to obtain medical help denied them at home). The m
court returned a negative answer, thereby allowing
continue; but the question left unanswered by the
whether an information ban was justified under two woo
of the Convention: Article 2 ("Everyone's right t

7 The point is well made by Linda Clarke in Birthrights, ed. Robert Lee and D
edn. (1990). p. 166. Cp. Margarct Brazicr, review of Dr. Kcown's Abortion
Law (1988) in (1989) 9 L.S. 217.
8 Open Door and Dublin Well Woman v. Ireland Eur. Court H.R., Decision
Series A. no. 246-A.

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C.L.J. The Fetus and the "Right to Life" 79

protected by law") and Article 10 (whether the ban w

for the protection of the rights of others"). Is a fet
"everyone", and is it included in "others"? A minority
were firmly of the view that the two articles prote
children, but the majority (of seven) were silent on th
The issue was an extremely ticklish one for the in
court. Irish opinion on the whole strongly favour
abortion, regarding this practice as almost as reprehensib
The ban has created inevitable strains, though it has b
by the opportunity of Irish women to obtain medica
Britain. (In addition to the 4,000 a year who come from t
2,000 come from Ulster, where the broad grounds al
Abortion Act in Britain do not apply.) It might appe
for an international court to hold that the moral ques
each country to decide, provided that its decision do
other countries. But there is a serious difficulty in th
solution. The European Convention on Human Rig
declaration as well as a legal document, and the Strasb
set up to enforce it for all the signatory States. If a
accounted a "person" under the Convention in respect of
of Ireland, it must, logically, be a person under the C
the law of Northern Ireland and even of Britain. What
then regard as a protective provision becomes, for Br
hindrance to sensible social arrangements.
Doubtless having seen this danger, the majority o
determined to avoid as many thorns as possible by dec
purely on the restriction of information. In this it was a
happy chance that the Irish Supreme Court had just
local law to the smallest possible extent by allowing medi
where there was a real and substantial risk to the woman's life if the
pregnancy were allowed to continue. The court relied on this decision
as showing that the unqualified ban was too broad, even for the law
of the Republic itself. Presumably this means that the ban might have
been valid if it had been confined to the giving of information for
saving life. Would a ban on giving information about abortions on
general health grounds then have been enforceable? And what about
the question left undecided by the majority: is the fetus a person
whose "right to life" must be protected by law, irrespective of any
damage the continuation of the pregnancy may do to the health of
the woman? May that question be decided differently in the Republic
and in Britain? The question will become even more awkward if, in
accordance with the strong weight of medical and popular opinion in
Britain, abortions by doctors are made totally free from control
during the first trimester.

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80 The Cambridge Law Journal [1994]

Although the European court could theoretically a

of a general "right to life" of the fetus if the matter
this being elevated above the "right to health"
concerned, I find it very hard to contemplate that
particular, it would be unwise, so unwise as to be
the European court, a virtually all-male judicial bod
legality of abortion radically, when this is a matter th
so closely. Incidentally, if the Strasbourg court con
itself in the attitude of the Irish towards abortion,
upon to decide at the international level whether th
the fetus extends to the pre-embryo before implant

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