Information from SWAN = Stephen Wan
Subject: How the laws take care of controversial death of foetuses in UK
(Indirectly provides us some realistic frames of reference for our discussion on moral grounds for abortion):-
Starting from a case A-G's Reference (no. 3 of 1994), the HL confirmed, obiter, previous understanding that to detsroy a viable foetus, however late in term, would not constitute any form of homicide.
(a) This is so whether the life of the foetus is destructed in the womb or whether the foetus is to be stillborn (i.e. dead at birth, NOT dead after birth).
(b) To attain personhood status, the live foetus' whole body must emerge into the world and at once sustain an independent existence from the mother no matter how brief the time is. [a test of independent respiration is favoured as reliable]
COMMENT:
(i) Of course, the pro-life anti-abortionist group will find this legislation horrible that even the foetus is a life but it never attains personhood until after birth with immediate independent respiration for existence.
(ii) And inside the womb, such a foetus life is NOT a person, and any treatment causing its death will not be regarded as murder or homicide (reason: no "person", no murder).
(iii) In other words, even though we know that as late as the 8th month (as long as the foetus is inside the womb), the foetus is pretty much the "same " as a neonate (a baby less than one month old after birth) - no further metamorphic development, recognition is given only to the baby after birth as a person in disregard of its health or physical fitness. That inside the womb, no matter how healthy, is given no such recognition.
(c) Therefore the legal confernment of personhood reflects a societal perceptions which are not underpinned by biological data.
(d) As a result, no murder, but only child destruction or unlawfully procuring miscarriage may be charged against a defendant whose unjustifiable or inexcusable act causes death of the foetus as long as the dead foetus remains inside the womb.
COMMENT:
The penalty on sentencing under such charges would be not be as severe as that under charge of murder.
(e) BUT if such act aims at casung death of such foetus inside the womb but has become unsuccessful, and a birth ensues, yet the neonate lives awhile but dies as a result of injuries sustained in the earlier attempt to detroy it, a verdict of murder or manslaughter may ensue.
(f) BUT please also note that a LAWFUL abortion may be allowed normally within the first 24 weeks . Cases when the babies should be born with serious deformities and handicap but only found out after the first 24 weeks, special permission shall have to be applied.
COMMENT:
Therefore, abortion purely can be decided even without the husband's consent, if the pregnant woman herself thinks fit. The foetus belongs to her alone for its fate. Under UK law, nobody can interrupt her decision, but a doctor can refuse to carry out abortion for her. She still needs two doctors' certification, both physically and psychologically fit for aborting her child foetus.
(g) a pre-term child born alive outside from the womb should become a person, and its destruction may be regarded as destruction of a person, and that means homicide or murder.
(h) A Late-term child birth in death due to infliction of pre-birth injuries still would not amount to the killing of a person (as firmly held by HL). But if it has been alive for even a short while (has become a person), then there is an offence (murder, manslaughter, child destruction...)
COMMENT (quoted from **):
It is believed that the receptuion of a child into the world after the point of birth is an event of enormous culturla significance, laden with symbolism. These social facts receive more weight than biological data facts when resolving the parameters of the law of homicide.
[** All the above points (except seveal COMMENT) AND the last COMMENT with (**) are extracted from Criminal Law: theory and doctrine, by A. P. Simester & G. R. Sullivan, Oxford- Portland Oregon: Hart Publishing, 2000, page 321]
HL stands for House of Lords
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