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Court of Appeal denies protection to embryo
Seven years ago, a baby girl (who cannot be named for legal reasons) was born to a 19 year old mother who had drunk heavily throughout her pregnancy, despite warnings from healthcare workers that her drinking could damage her baby.
All the courts who have heard the case agreed that the girl’s FASD (Foetal Alcohol Spectrum Disorder) is a direct result of alcohol abuse in pregnancy.
However the Court of Appeal ruled that she could not be awarded compensation for the damage done to her during pregnancy because she was not a legal ‘person’ while in the womb, but rather she was an ‘organism’. So a crime could not have been committed against her, as a fetus is not a ‘person’. 8
“Behind the scenes” background
Philippa Taylor, Head of Policy at the Christian Medical Fellowship, has provided a little background to “some of the machinations and manoeuvrings behind the scenes with this case.” 9
“Although the case ruling has turned on whether an unborn child can be considered a ‘person’ for the purposes of the law, the media coverage has been very different.
“The media coverage has not centred on the young girl herself, nor on the dangers of drinking in pregnancy, nor on the impact of FASD. Instead, it has been all about the dangers of criminalising pregnant women who drink. It would have been difficult to miss headlines a few weeks ago such as,
‘Mums to be who drink could be branded criminals’” 10 Clive Coleman, BBC, has written, "This case was hugely important, because campaigners argued that if the Court of Appeal had said it was possible for a mother to commit a crime by poisoning her foetus with excessive alcohol, it would have had the effect of criminalising pregnant women who drank excessively, knowing the dangers of alcohol to their foetus." 11
Philippa Taylor asserts, “The media has been taken over (taken in?) by leading abortion provider, British Pregnancy Advisory Service, BPAS, and sister organisation, Birthrights, who intervened in the case to prevent the girl getting any compensation for her disabilities. Why?
“They claimed that granting her compensation would impact women’s autonomy to choose to drink in pregnancy. It would restrict their ‘reproductive rights’. And it could ‘criminalise’ women who drink in pregnancy.
“These may sound like logical arguments, but the claim that this ruling could have resulted in a whole new tranche of criminalised behaviour was never true and BPAS knew that! It was naked scaremongering. This has been a civil, not a criminal case. 12 It would not directly affect criminal interpretation of the law. 13 And it would certainly not be in the public interest for the Crown Prosecution Service to charge alcoholic mothers.
“So the real reason why BPAS and Birthrights opposed the case is because the Court might have ruled that an unborn child could be considered a ‘person’ for the purposes of the Offences Against the Person Act, which would not have directly affected the criminal law, but would have set a legal precedent for treating preborn babies as people. They correctly realised that had the judgement found that unborn children have legal personality (in this case), the effect could be far-
“Thus ‘criminalising pregnant women’ was an effective smokescreen to hide behind, to be able to oppose the case. It would hardly have looked good to be seen to be collaborating to prevent a severely disabled seven year old receiving compensation.”
Andrea Williams, CEO of Christian Concern, commented, "the abortion lobby opposed this girl's claim because its ideology was threatened. This case highlights the inconsistency of not recognising the unborn child as a human person. It is claimed that although she lives with the consequences of the damage now, that damage was inflicted on her 'before she became a person'. How can that make sense?" 14
Philippa draws several implications from the case. Three of them are:-
1. The legal position of the unborn child in UK law has become even more convoluted and incoherent: killing an unborn child is illegal (except under limited circumstances) but maiming or otherwise harming is allowed.
2. Legally, a baby minutes before birth, even at 40 weeks, is just a mere ‘organism’. Yet a baby of 24 weeks gestation in a neonatal unit is a ‘person’ with full legal rights. A baby minutes before birth (indeed, months before birth) is clearly a baby. Modern technology and 4D imaging completely exposes these legal and moral contradictions.
3. A group of campaigners has been so desperate to stop any possible infringing of adult liberties, and defend abortion at all costs, that they have campaigned to prevent compensation being granted to a disabled child. 15
The case is likely to be appealed.