This is a guest post by Nathan Emmerich. Nathan Emmerich is a Visiting Research Fellow at Queen’s University Belfast where he has been working on Bioethical Expertise. He took his PhD from Queen’s and this was recently published as a book entitled ‘Medical Ethics Education.’
On Thursday the 21st of November the Court of Appeal in Northern Ireland (NI) gave its judgement in a case between the Attorney General for NI, John Larkin, and the Senior Coroner for Northern Ireland. The case concerned whether the Attourney General could compel the coroner to convene an inquest into a still-birth. The coroner had declined to do so, arguing that it did not fall within the remit of his office. Briefly, as the role of the coroner is to investigate deaths there had to be an individual who was, legally speaking, alive and had subsequently died. Thus coroners in NI and, for that matter, the UK have not historically held inquests into still-births. A lower court had previously upheld the position of the coroner and that judgement alluded to some of the concerns I raise here.
The question of when life and, in particular, human life begins and ends has been persistent and contentious in biology, philosophy, theology and law. In bioethical thought there are a number of different accounts where it is common to distinguish between the start of life and the point at which a human organism attracts moral importance. Furthermore we might think that the human organism has different moral weights depending on the state of its development or, for that matter, demise. Such consdierations lead in a variety of directions, not least to the provocative argument that neonates might not meet the requirements for ‘personhood’ and therefore should not be considered (full) members of the moral community. It is not easy to resolve these ethical conundra and they will continue to trouble bioethical scholarship for the foreseeable future. However, the law cannot afford the luxury of uncertainty. Whilst we might recognise some degree of complexity and attempt to mediate between competing demands, ultimately the law has to adopt a position on when the ‘human organism’ becomes an individual, recognised by law and, therefore, a (legal) person.
Until now the UK has deemed birth to mark this point. When a live child is delivered from its mother it becomes a legally recognised person. In cases where a child is still-born they are not considered legal persons, as they are not born alive. Such births are certified, but certified as still-births; no birth certificate is issued. This contrasts with cases where a child is born alive but dies shortly thereafter. In these instances a birth certificate is issued and so is a death certificate. Coroners can and do hold inquests into such deaths. The Appeal Court ruling – that the coroner could hold inquests into still-births and therefore should accept the Attourney General’s direction to do so in this particular case – clearly runs contrary to current practice. Given that the argument made was that a still-birth involves the birth of a dead child and that therefore the child must have been alive at some prior point the conclusion appears to be that a legal person exists prior to birth, the point at which the legal person is certified as existing.
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Critical to this interpretation is the law on child-destruction, an offence that involves the the destruction of a foetus which is ‘capable of being born alive.’ As a crime it is rarely prosecuted and it is unclear how a particular foetus is deemed to be capable of being born alive and if this is the same thing as ‘viability.’ The de facto position would appear to be if the pregnancy is less then 24 weeks, then the foetus is not capable of being born alive, and if it is more then 24 weeks, then it is. The 24-week point is an important point in UK abortion law, but this law does not apply to NI. Nevertheless, in practice, this point is also used to differentiate between a ‘miscarriage’ and a ‘still-birth.’ However, given that acting in accordance with the 1967 Abortion Act is a defence to the charge of child-destruction this assumption – that a foetus must be at least 24-weeks old if it is to be deemed ‘capable of being born alive’ – may not be correct.
The Attorney General argued that the language surrounding the crime of child-destruction and the reference to child-destruction in the 1963 Practice and Procedure Rules for Coroners indicates that it is within the remit of the coroner to conduct inquests into still-births. The coroner’s response was that the practice and procedure rules do not alter the substantive law given by the 1959 Coroner’s Act. This Act details the circumstances in which a coroner can hold an inquest, these being where a dead body has been found, where an unexpected or unexplained death has occurred or where there are suspicious circumstances surrounding a death. In these cases the Act provides a legal framework in which the coroner can take possession of a deceased person’s body. Thus whilst in cases of still-birth there is a body, it is not the body of a deceased person as, legally speaking, no such person has legally existed.
Whilst these arguments might seem quite arcane, no small degree of significance might be attached to the notion that, once it is deemed capable of being born alive, i.e. once it is post 24-weeks gestation, a foetus is a legal person. If, as a result of this ruling, such a perspective is adopted then we may find NI courts being asked to consider if the interests of the foetus and the mother are in alignment. If not then the question of how the interests of the foetus might be protected, and to what degree these can be prioritised over those of pregnant women, will unavoidable follow. Under laws against ‘foetal endangerment’ American women have been detained for this very reason. In a recent case a women who told her doctor that she used to have a problem with pill addiction but was now verifiably clean nevertheless found herself in court, without a lawyer, whilst a legal guardian appointed to protect the interest of the foetus successfully argued that not only should she be compelled to attend a drug treatment programme but she should do so as an inpatient i.e. she should be required to remain at a drug treatment facility. In another case a woman was charged with murder after her pregnancy ended in a still-birth.
Such laws are not just a peculiarly American phenomenon, the Australian state of New South Wales recently introduced ‘Zoe’s Law’ which recognises that a foetus’ older than 20-weeks as ‘a living person.’ Whilst Zoe’s Law was not introduced to differentiate the interests of the foetus from that of the pregnant woman, it is almost inevitable that it will be used in this way. Some see this as the ‘criminalisation of pregnancy’ and ‘a new front in the culture wars over abortion.’ Given that NI, the Attorney General and the Health Minister appear to have an on going problem with not only legislating for abortion but with issuing adequate guidance on the existing law, such as it is, it is easy to make the connection in this case. Consequently this judgement may well have significant implications for women in NI and, ultimately, the UK as a whole. Nevertheless, its implications seem to be widely ignored, not least by the UK press who, , at the time of writing and with the exception of the BBC and the Belfast Telegraph, seem to have little interest in reporting the judgment, let alone presenting the potential consequences if legal life is to start before birth.
