English law – foetus

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Overview

Cases

Currently

Case study

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Overview

‘Foetus’ is generally taken to mean the embryo from 8 weeks (56days) post fertilisation to birth. The foetus has imprecise status under English law.

• A foetus is not a person in the eyes of the law.

• A foetus is not simply part of the mother.

• (A foetus is a)…unique organism

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Cases

Over the years the law has slowly evolved through a series of cases that refer specifically to the foetus: Paton v. BPAS (1979) Re F (In Utero) (1988) S v. St George’s NHS Trust (1998) Vo v. France (2004)

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Currently

In summary it appears that the foetus is recognised to have interests in English law but it is not equivalent to a person. As such when a persons interests conflict with those of the fetus it is reasonable to assume the interests of the person will be upheld. As it is not a person, it does not have a direct right to life. Even if it were a person (and under English law it is not) the interests of the mother could still reasonably be taken to have precedence.

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Case study

Case: St George’s Healthcare NHS Trsut v. S [1998]

Summary: S was 35 weeks pregnant when she was informed that she required a Caesarean section operation. Without it the doctors believed it highly probable that either she and or the foetus would die. She refused to consent to the procedure. Her doctors deemed her legally competent to make the decision but sort legal approval to perform the operation anyway. The judge gave permission to go against the wishes of S and perform the operation. After the operation S appealed the decision and won.

A women who all believed to be competent was refusing what was thought to be a life-saving procedure and was therefore acting against the best interests of herself and the foetus. English law normally allows a competent adult to make choices that go against their own best interests but not those of a child. The issue here was whether the foetus could be considered a child. Another route the doctors could have taken was the competency of the mother but they all agreed she was competent to make this decision. It is worth taking a minute to consider which principles you think should win here, personal autonomy or best interests of the mother and/or foetus.

The final legal decision was that it is unlawful to detain and perform a C-section on a woman competent to refuse. Her right to refuse treatment, if competent, is absolute whether she is pregnant or not. This holds even if she and/or the foetus may die.