1. ‘A common argument is that by setting appropriate boundaries law provides science with legitimacy, however … this legitimacy often owes more to Realpolitik than a coherent legal framework based on considered moral principles.’ (Halliday & Steinberg) ‘Thus the impossibility of identifying a single widely shared notion of virtue or common good in modern societies does not mean that the modern law can remain resolutely neutral on all controversial questions involving moral issues. Indeed neutral is the one thing it cannot be, for refusing to take a moral position is a moral stand in itself … But at the same time that law is increasingly regarded as a value carrier, there is an almost total lack of agreement about how and where the values it carries are to be discovered.’ (Glendon)
In the light of the above statements, critically compare and contrast the law relating to both embryonic stem cell research and abortion in Germany and England & Wales. To what extent has each jurisdiction adopted a consistent approach to the status of and/or respect due to the human embryo/foetus?
2. ‘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. Such a legal conception, moreover, is belied by the reality of the physical situation; for practical purposes, the unborn child and its mother-to-be are bonded in a union separable only by birth. Such a dramatic departure from the traditional legal characterization of the relationship between the unborn child and its future mother is better left to the legislature than effected by the courts.’ (Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) (1998) Per McLachlin J.) Critically consider the above statement in assessing to what extent the courts in the United States of America and England & Wales have implemented foetal protection policies, with the courts considering the foetus to be a separate entity in need of protection from the pregnant woman.
When looking at the issues surrounding embryonic stem cell research and abortion in the UK and other countries it can be noted that there are a variety of views on the ethics of such research. The first portion of this paper will look at the different ways the issue of embryonic research and abortion have been tackled in England, Wales, the Netherlands and Belgium and compare the various items of legislation in force in each of these countries with regard to these areas. The second half of this paper will then explore what foetal protection policies have been adopted in the USA and England and Wales. It will then be possible from examining both to reach a conclusion as to the status of the foetus in England and other countries and the respect that is given to those foetuses.
Staring with the UK and the issue of embryonic stem cell research it can be seen from the approach by the medical profession and government legislation that much of the attitude towards the research is in favour of such experimentation. In a House of Commons Research Paper in 2000 entitled Stem Cell Research and Regulations under the Human Fertilisation and Embryology Act 1990 it was stated that the government were planning to extend the grounds for research using embryos. The proposed new ground under which such research would be permissible was to help the medical profession to increase their understanding about human disorders and diseases and treatments that cab be cell based. Under the recommendations made in this paper the scientists conducting the study would be allowed to carry out therapeutic cloning. Although cloning was being promoted the paper was still insistent that cloning to produce an individual would remain prohibited.
Many of the recommendations from the House of Commons research paper came from the Donaldson Report 2000. The main thrust of his report involved the creation of cloned human embryos so that they could be used as a source of stem cells. His report suggested that the cloned embryos could be used to make replacement body cells for those suffering from degenerative diseases. Although there are supporters of these recommendations many churches and pro-life groups feel that the use of these is unethical and should be prohibited. Those opposed to the use of embryos would willingly accept research on adult stem cells as an alternative. Many of the groups that are against the use of embryos in this way have argued that the production of embryos for the sole purpose of research is unethical and removes all respect for the embryo as an entity. They argue that the Human Fertilisation and Embryology Act 1990 in its unrevised form gave special status to the embryo which the revised Act removes.
One such group opposed to the changes is the Church of Scotland who felt that
The new proposals would effectively remove the sense of a special status of an embryo, of an entity deserving of respect, to a mere resource from which to take cells.
Donaldson (2000) in his report concerning the use of embryos stated that his proposal was “not lacking in respect”, of the moral status of embryos as long as the proposed research would secure benefits for human health (4.10), he also went onto say that he believed the new legislation would “prevent the possibility of reproductive cloning in the UK” (4.20).
The present situation in the UK is that despite the objections by the church and other groups the legislation has been amended such that scientists are now able to carry out therapeutic cloning and utilise the stem cells for research into degenerative diseases.
In the Netherlands their stance has been one against the creation of embryos for research or therapy. In the Embryos Act 2002 there was a ban placed on the creation of embryos for research or therapy purposes. There was a provision added to the Act that the ban should lapse five years after the Act was brought into force. Within the Act regulations were inserted designed to apply to the use of embryos that have been created for therapy or research after the ban was lifted. The Netherlands included these regulations in the Act so as to deal with the issues raised in Article 18.2 of the Convention of the Council of Europe on human rights and biomedicine which totally forbids the creation of embryos for research.
When the Embryos Act was drafted the insertion of the clause in respect of the creation of embryos for research and therapy purposes was not included because of strong moral convictions but because it was felt that society was not ready to accept the use of embryos in this way. The Netherlands legislation will allow research to be carried out on what has been termed leftover IVF embryos but opposed to the specific creation of these for such research.
With the recent change of view that has been adopted in other countries towards stem cell research increased pressure has been placed on the Netherlands to lift the ban and to allow embryos to be created in the same manner for research and therapy purposes. Holland and France have become involved in the call for the use of embryos for research and the scientists there have asked for the legalisation of cloning through Somatic Cell Nuclear Transfer. In a report compiled by Fagniez entitled Stem Cells and Ethical Choices, he suggests that the use of leftover IVF embryos might be suitable for use for such research. He agrees that the fertilisation of such embryos for the specific purpose of research should continue to be banned. The recommendations for SCNT have not yet been embodied in the Bioethics Act 2004 in France or the Dutch Embryos Act 2002.
The French Act in its current form is opposed to the creation of embryos for research or therapy. It has been argued that the use of surplus embryos for research should be allowed as it does not contravene article 18.2 mentioned above. It has been recommended that the SCNT should be implemented into the French legislation but at present there have been no direct moves towards these recommendations.
Belgium has adopted a very similar approach to embryonic stem cell research as the UK. One of the main differences in the way stem cell research is viewed in Belgium as opposed to the UK is that such research is handled on regional levels. Within Belgium the funding of this research comes primarily from the research budget of the University Institute for Biotechnology. It has been discussed for plans to develop a Belgian Institute for stem cell research. To date the use of stem cells has centred on the treatment of Parkinson’s disease, Alheizemers and cancer treatments. Belgian scientists have also discovered how to clone human embryos form eggs that have been matured in a laboratory. As with the UK the therapeutic cloning of embryos has been legalised although reproductive cloning is banned in the same way that it has been banned in other countries.
Before the scientists are allowed to use therapeutic cloning they have to meet the conditions that were included in the 2003 Belgian legislation. Under this legislation an agreement has to be reached with the authorities and the scientists have a duty to prove that the research is for therapeutic purposes, that it will be based on recent scientific knowledge; it will be carried out in a registered laboratory and will be only used on embryos up to 14 days of development. They must also show that there is no alternative use of animal embryos possible and they must document the methods they are intending using and estimate their chances of success. All such research will be monitored by a Federal Advisory Committee for Bioethics.
From the above it can be concluded that the UK and Belgium have adopted similar attitudes towards stem cell research using embryos, although Belgian scientists are more closely monitored and have to prove the necessity of the use of the embryos before experimentation will be allowed by the authorities. In the UK there is no such requirement and it is the considered opinion of the UK government that the legislation is an adequate control on the usage of such research. The Netherlands by contrast have so far rejected the use of cloning of embryos for research purposes although will allow should research on what can be classified as surplus UVF embryos.
When looking at the issues surrounding abortion there are differences again between the different countries. In the UK it is legal for an abortion to be carried out up until the 24th week of the pregnancy. Although legislation allows abortions up to this stage most hospitals or clinics have a tendency to refuse abortion after 18 to 20 weeks. In order for an abortion to be carried out in the UK there needs to be an agreement between 2 doctors. The doctors will in some cases take into account the social circumstances of the woman as well as looking at the risk to the woman’s mental and physical health should a termination be refused.
Before agreeing to the abortion the doctors will examine the woman to establish how advanced the pregnancy is and where a termination is agreed the doctor will then discuss the procedures available and the risks involved in each procedure. The Society for the Protection of Unborn Children has attempted to prevent the widespread use of abortion. In one such case the Society lost when trying to bring an action preventing the sale of the morning after pill to girls under 16. Their application to appeal against this decision was also rejected.
In the Netherlands abortion became legalised during the 1970’s. In 1981 an abortion law was passed in the Netherlands which had the effect of allowing an abortion at any time between implantation and viability to be carried out so long as the procedure is carried out by a doctor in a hospital or clinic that is licensed to perform abortions. The system by which an abortion is accepted is similar to the UK and requires the woman to consult with a doctor before a termination can be agreed. Unlike the UK the Netherlands legislation makes it a requirement that a termination can only be agreed if the distress of the woman leaves her with no other choice. She must undergo counselling which involves being given alternative ways of dealing with her predicament rather than abortion.
The woman is not allowed to have the abortion immediately following the counselling and must wait 6 days before the termination can be carried out. Following the abortion the woman must receive adequate care and information on how to prevent unwanted pregnancies in the future. There are occasions when the 6 day waiting period can be waived. This would be the case if the woman’s life would be threatened if she had to wait. Any pregnancy that is in excess of 13 weeks must be terminated in a hospital or clinic that is approved for abortions.
The law provides for a doctor to be able to refuse to carry out an abortion if he has a conscientious objection to abortions. Where this is the case the doctor will have a duty to the patient to provide other doctors with information on the woman’s condition if the woman so requests this. Doctor’s who carry out abortions in clinics that are not licensed knowing that the pregnant woman is more than 13 weeks pregnant can face a years imprisonment or a fine. Similarly if the doctor performs the termination before the end of the 6 day waiting period can also face penalties and criminal charges. Like the UK the maximum limit within which an abortion can be carried out is 24 weeks.
In Belgium abortion was illegal until 1990 when the government amended the Penal Code of 1867 thereby making it legal to have an abortion under certain circumstances. The main thrust of the change in legislation is that an abortion can be carried out within the first 12 weeks of pregnancy without the need for 2 doctors to agree. Unlike the Netherlands and the UK the decision as to the distress of the woman is made by the woman herself. In order to be able to accede to the pregnant woman’s request the doctor only needs convincing of the pregnant woman’s determination to terminate the pregnancy. After the 12 week period the law requires that two doctors must agree that if the pregnancy continued the health of the woman would be in grave danger or the child is likely to be born with some pathological condition.
All abortions in Belgium have to be carried out by a doctor under medical conditions regardless of how far into the pregnancy the female might be. The place in which the abortion is to take place must be able to provide the woman with detailed information with regards to alternatives to abortion as well as being able to give practical advise on support that is available should she decide not to have an abortion. As with the Netherlands the woman has to wait six days from the date of the counselling before the abortion can be carried out. One difference in Belgium compared to the Netherlands is that the woman has to certify in writing her determination to end the pregnancy.
Illegal abortions can result in a prison sentence of between three months to a year and a fine of up to 500 francs. Similarly a woman who voluntarily obtains an illegal abortion can face a simile prison sentence and fine. In situations were the illegal abortion has resulted in the death of the woman the person performing the operation can be made subject to solitary confinement if the consent of the woman had been given. If the woman did not consent then the person who did the abortion could face up to 15 years forced labour.
It can be seen from the above that although there are similarities in the law on abortion there are still stringent controls in Belgium and the Netherlands which could result in imprisonment for the doctors, and in Belgium the patient herself, if they breach the requirements. The above also suggests that there is more respect for the rights of the foetus in the womb then in the laboratory. It seems to be acceptable to manufacture embryos for experimentation and then to destroy them so long as it is deemed to be for the advancement of research but not as acceptable to carry out an abortion on a female that clearly does not want to have a baby. Admittedly abortions can be obtained and carried out and the rules are less stringent in the UK but the law seems to take more of a moral stand against abortions then it does on experimentation on embryos.
In considering foetal protection policies in the USA and England it is necessary to look at research that has been carried out in these areas and then examine how the idea has formulated that foetus need protection from their mothers whilst they are still inside the womb. In a journal article by Sheldon (1999) she highlights the point made by Petchesky (1987) that the mother is ‘enemy number one’ to the foetus. Fortin (1988) agrees with Petchesky on this point stating that ‘the unborn child is more likely to be harmed bit by a third party but by its own mother’. Fortin continued in this article to point out that it is the responsibility of the female to ensure that she curbs her behaviour whilst carrying the baby and that she should take steps to avoid sources of potential harm.
In a move to protect the foetus legislation in the USA has included foetal protection policies which prevent women from working in certain hazardous environments and also creating parental liability for ‘irresponsible or dangerous antenatal behaviour’.
Looking firstly at the policies that have been brought into place to protect the foetus in the workplace both in the USA and England, it should be noted that regulation 3 of the Management of Health and Safety at Work Regulations 1992 imposes a duty on employers to assess the risks to new and expectant mothers and the babies when assessing the safety in the workplace. It was noted by Atwell (1987) that foetal protection policies have led to the exclusion of women from a variety of workplaces across both sides of the Atlantic.
Within the UK the Factories Act 1961, the Control of Lead at Work Regulations 1980 and the Ionizing Radiation Regulations 1985 appear to discriminate against women in the workplace as all of the above seek to regulate activities of pregnant women in the workplace. This can be evidenced by s176(1) of the Factories Act 1961 which has the effect of excluding women over the age of 18 from employment where lead is in use. Further control over the working environment has been imposed by the Management of Health and Safety at Work Regulations 1994 which was implemented under the EC Directive on Pregnant Workers. These controls call for the employer to assess potential risks for the female employee and the foetus being carried and to take action to remove the perceived danger or to remove the female from the location of the potential hazard.
In Page v Freight Hire (Tank Haulage Co) Ltd the plaintiff challenged a foetal protection policy in the UK. The employment tribunal upheld the decision to dismiss a female tanker driver who was carrying DMF which had been proven to be hazardous to unborn children. The court held in this case that the plaintiff’s challenge relying on the Sex Discrimination Act 1975 should fail as the employers had a duty under the Health and Safety Act 1974 to protect the health and safety of its employees. The court found that the dismissal was in accordance with the 1974 Act as there was a potential risk of damage to the foetus.
When looking at the way in which foetal protection policies have been implemented to attach parental liability for antenatal behaviour it is important to note that such liability can arise in civil law as well as in criminal law. In some cases parental irresponsibility during pregnancy can result in child protection measures being invoked after the birth of the baby. In D (a minor) v Berkshire County Council and others the courts made care order on the newborn baby based on the irresponsible behaviour off the mother whilst she was carrying the child. In Re F  an attempt was made to make the foetus a ward of court to try to protect the unborn child in the womb. This was rejected and to date the courts have not made an unborn foetus a ward of court.
In the USA much of the focus on the protection of the foetus in the womb has centred on the use of recreational drugs by the mother. The concern over babies being born with addiction to drugs has led to the criminal prosecution of mothers who have used recreational drugs during pregnancy. The charges brought against these mothers have been foetal abuse, foetal drug delivery and manslaughter in cases where the baby is stillborn or dies shortly after birth.
The UK has not adopted a similar policy in respect of drug abuse by the mother although Brazier (1997) suggests that such criminal charges might be possible where there is drug abuse by either the male or female during the antenatal period. Although there have to date been no criminal actions brought against the parents the Congenital Disabilities (Civil Liability) Act 1976 gives the child the right to sue their parents for negligence for an occurrence before its birth which has resulted in a mental or physical disability providing the child survives for at least 48 hours after birth. The liability covers anything which might affect either parent’s ability to have a normal healthy child.
The 1976 Act does not hold the mother liable for antenatal injury as such liability is dependent on liability being owed to an affected parent. This effectively means that a mother who consumes excessive alcohol during her pregnancy would not be held liable under this Act for the eventual disabilities of the child. By contrast fathers can be held liable for antenatal injury. It was believed by the Law Commission 1974 that it would be difficult to hold mothers as liable for the condition of their baby and that it would be difficult to conclusively prove that the baby had been damaged by the actions of the mother smoking or drinking during pregnancy. It was also felt that to hold a mother liable in such a manner would increase hostilities between the mother and the handicapped child and exacerbate the problems that a mother might already be facing in having to raise a handicapped child.
There is one distinct exception where a mother can be held liable for the damage caused to the unborn child. This has been the case where the child is harmed following a motor vehicle accident in which the mother was driving negligently. In such circumstances the courts have found that the unborn child should be entitled to compensation using the Motor Vehicles (Passenger Insurance) Act 1971 which ensures that compensation should be available to all passengers that are injured as a result of a road accident. It has been successfully argued that such protection should cover unborn children as well as ordinary passengers.
It is apparent from the above that the above has the effect of giving the unborn foetus the rights to sue its parents for abnormalities resulting from their neglect in protecting them from harm. Within the UK parental liability to unborn children comes under civil law whilst in the USA criminal proceedings can and have been brought against parents for harming their unborn child. In this way the courts have accepted the unborn child has a separate entity and accorded it with rights independent from its parents.
Atwell, C, (1987) ‘Hazards to Female Reproduction’, Occupational Health, (October
1987) 312-314 in Sheldon, S (1999) ‘ReConceiving Masculinity: Imagining Men’s
Reproductive Bodies’ Law Journal of Law and Society 26 (2),
Belgisch Staatsblad. ( June 16, 2003) 32133–32157 173e Jaargang.
Brazier, M, (1997), ‘Parental Responsibilities, Foetal Welfare and Children’s Health’ in Family Law: Towards the Millennium: Essays in Honour of P M Bromley, ed Bridge, C (1997) 263-293
Daniels, C, ‘Between Fathers and Fetuses: The Social Construction of Male
Reproduction and the Politics of Fetal Harm’ (1977) Signs 579-616
Fortin, J, (1988) ‘Legal Protection for the Unborn Child’ 51 Modern Law Review, 54-83
House of Commons Research Paper (2000) Stem Cell Research and Regulations under the Human Fertilisation and Embryology Act 1990
Ketting E, Netherlands, in Rolston E and Eggert A, eds., Abortion in the New Europe, Westport: Greenwood Press, 1994, pp. 173 & 180
Law Commission Injuries to Unborn Children, Working Paper no 47 (1973)
Petchesky, R (1987) ‘Foetal Images: the Power of Visual Culture in the Politics of Reproduction’ in Reproductive Technologies: Gender, Motherhood and Medicine, Stanworth, M (1987) 57-80
Sheldon, S (1999) ‘ReConceiving Masculinity: Imagining Men’s Reproductive Bodies’ Law Journal of Law and Society 26 (2), 129–149
Table of Cases
A (A Child) v Ministry of Defence  EWCA Civ 641  Q.B. 183  3 W.L.R. 469  P.I.Q.R. P35  Lloyd’s Rep. Med. 351 (2005) 82 B.M.L.R. 149 (2004) 101(22) L.S.G. 32 Times, May 17, 2004 Independent, May 13, 2004
Attorney General’s Reference (No.3 of 1994), Re  A.C. 245  3 W.L.R. 421  3 All E.R. 936  1 Cr. App. R. 91 (1997) 94(36) L.S.G. 44 (1997) 147 N.L.J. 1185 (1997) 141 S.J.L.B. 189 Times, July 25, 1997 Independent, October 1, 1997
Burton v Islington HA  1 Q.B. 638  2 W.L.R. 501  1 All E.R. 825  1 F.L.R. 483  2 F.C.R. 832  2 Med. L.R. 133  Fam. Law 361 Times, November 15, 1990
D (a minor) v Berkshire County Council and others 1 All ER 20
Hamilton v Fife Health Board 1993 S.C. 369 1993 S.L.T. 624 1993 S.C.L.R. 408
McCluskey (John Wilson) v HM Advocate 1989 S.L.T. 175 1988 S.C.C.R. 629  R.T.R. 182
McKay v Essex AHA  Q.B. 1166  2 W.L.R. 890  2 All E.R. 771 (1982) 126 S.J. 261
Page v Freight Hire (Tank Haulage Co) Ltd  IRLR 13
P’s Curator Bonis v Criminal Injuries Compensation Board 1997 S.L.T. 1180 1997 S.C.L.R. 69 (1998) 44 B.M.L.R. 70 1997 Rep. L.R. 3 Times, January 24, 1997
R (on the application of ProLife Alliance) v BBC  UKHL 23  1 A.C. 185  2 W.L.R. 1403  2 All E.R. 977  E.M.L.R. 23  H.R.L.R. 26  U.K.H.R.R. 758  A.C.D. 65 (2003) 100(26) L.S.G. 35 (2003) 153 N.L.J. 823 (2003) 147 S.J.L.B. 595 Times, May 16, 2003 2
R (on the application of Smeaton) v Secretary of State for Health (Costs)  EWHC 886  2 F.L.R. 146
R. (on the application of Quintavalle) v Secretary of State for Health  UKHL 13  2 A.C. 687  2 W.L.R. 692  2 All E.R. 113  1 F.C.R. 577 (2003) 71 B.M.L.R. 209 (2003) 153 N.L.J. 439 Times, March 14, 2003 Independent, March 18, 2003
Re F  2 WLR 1288  2All ER 193
Reyes v Superior Court 75 Cal. App 3 D 214 (Ct App. 1977)
State v Stewart No M508197 (Municipal Court, County of San Diego, Feb 26 1987)
Wyoming v Osmus 276 P 2 D 469 (Wyo 1954)
Table of Statutes
Article 18.2 of the Convention of the Council of Europe
Bioethics Act 2004
Congenital Disabilities (Civil Liability) Act 1976
Control of Lead at Work Regulations 1980
Dutch Embryos Act 2002
EC Directive on Pregnant Workers.
Embryos Act 2002
Factories Act 1961
Human Fertilisation and Embryology Act 1990
Ionizing Radiation Regulations 1985
Management of Health and Safety at Work Regulations 1992
Management of Health and Safety at Work Regulations 1994
Motor Vehicles (Passenger Insurance) Act 1971
Penal Code 2003
Penal Code 1867
Sex Discrimination Act 1975
Termination of Pregnancy Act 1981
 R (on the application of ProLife Alliance) v BBC  UKHL 23  1 A.C. 185  2 W.L.R. 1403  2 All E.R. 977  E.M.L.R. 23  H.R.L.R. 26  U.K.H.R.R. 758  A.C.D. 65 (2003) 100(26) L.S.G. 35 (2003) 153 N.L.J. 823 (2003) 147 S.J.L.B. 595 Times, May 16, 2003 2
 R. (on the application of Quintavalle) v Secretary of State for Health  UKHL 13  2 A.C. 687  2 W.L.R. 692  2 All E.R. 113  1 F.C.R. 577 (2003) 71 B.M.L.R. 209 (2003) 153 N.L.J. 439 Times, March 14, 2003 Independent, March 18, 2003
 A (A Child) v Ministry of Defence  EWCA Civ 641  Q.B. 183  3 W.L.R. 469  P.I.Q.R. P35  Lloyd’s Rep. Med. 351 (2005) 82 B.M.L.R. 149 (2004) 101(22) L.S.G. 32 Times, May 17, 2004 Independent, May 13, 2004
 P’s Curator Bonis v Criminal Injuries Compensation Board 1997 S.L.T. 1180 1997 S.C.L.R. 69 (1998) 44 B.M.L.R. 70 1997 Rep. L.R. 3 Times, January 24, 1997; McKay v Essex AHA  Q.B. 1166  2 W.L.R. 890  2 All E.R. 771 (1982) 126 S.J. 261
 Law Commission Injuries to Unborn Children, Working Paper no 47 (1973) ; Attorney General’s Reference (No.3 of 1994), Re  A.C. 245  3 W.L.R. 421  3 All E.R. 936  1 Cr. App. R. 91 (1997) 94(36) L.S.G. 44 (1997) 147 N.L.J. 1185 (1997) 141 S.J.L.B. 189 Times, July 25, 1997 Independent, October 1, 1997
 Burton v Islington HA  1 Q.B. 638  2 W.L.R. 501  1 All E.R. 825  1 F.L.R. 483  2 F.C.R. 832  2 Med. L.R. 133  Fam. Law 361 Times, November 15, 1990; McCluskey (John Wilson) v HM Advocate 1989 S.L.T. 175 1988 S.C.C.R. 629  R.T.R. 182