The legal status of the fetus is one of the most controversial topics in medical ethics and law, and invokes a ‘tug of war’ between maternal autonomy and fetal claims. Although English law is quite clear that the fetus has no legal rights, it does not equate to ‘nothing’ (St George's Healthcare NHS Trust v SR v. Collins and others [1998]). This ‘tug of war’ is complicated not only by moral dilemmas that are encountered, but also the by the legal difficulties in deciding what, if any, protection the fetus has.
One of the first cases to discuss this was Paton v BPAS [1979], in which a husband sought to prevent his wife having an abortion. The court was clear that:
‘The fetus cannot […] have any rights of its own at least until it is born and has separate existence from the mother.’
The term ‘separate existence’ is an interesting one, as arguably the fetus is not separated from its mother until the umbilical cord is cut. Could it be possible for the fetus to be harmed, up until the moment the cord is cut?
English Law makes clear, however, that it is the moment of birth that is the legally significant event, at which point the fetus is granted full rights. In C v S [1988]:
‘The claim crystallises upon the birth, at which date, but not before, the child attains the status of a legal persona, and thereupon can then exercise the legal right’
This therefore implies that, before birth, the mother and fetus are not separate but uniquely connected, due to the location of the fetus inside the mother. In a case involving the stabbing of a pregnant woman, the House of Lords rejected the body part argument (Herring, 2010) adopted by the Court of Appeal. Although uniquely connected, Lord Mustill said that the fetus was more than a body part of the mother, and that it was ‘a unique organism’ (Attorney General's Reference No. 3 [1994]:AC 256, 1998).
The UK courts have generally tried to avoid deciding what a fetus is and have focused on what it is not. Lord Mustill was therefore demonstrating the legal difference between an internal organ and a fetus in relation to its potential. For example, the appendix cannot have an independent future or separate existence from the woman, whereas for a fetus, ‘life lies in the future not in the past.’ (AC 256, 1998).
This difference was acknowledged in St George's Healthcare NHS Trust v R v Collins and others [1998]:
‘Whatever else it may be, a 36 weeks fetus is not nothing: if viable it is not lifeless and it is certainly human.’
Several national and European cases have shown that the fetus cannot have legal ‘rights’. In the case of Vo v France [2004] 2 FCR 577 (ECtHR), the European Court of Human Rights had to decide if the medical negligence that resulted in the termination of the wrong pregnancy afforded the fetus protection under Article 2 of the European Convention of Human Rights. The court ruled that:
‘If Article 2 were held to cover the fetus and its protection under the Article were […] seen as absolute, an abortion would have to be considered as prohibited even where there the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the ‘unborn life’ of the fetus would be regarded as being of a higher value that the life of the pregnant woman.
The court held that the question of when the right to life starts came into the ‘margin of appreciation’ for each individual country.
Although some people would expect courts to protect the fetus by granting it legal protection, this restricts the pregnant woman's self determination and bodily integrity, as described by Nigel Lowe:
‘Wardship will not be extended to protect foetuses since it would necessarily involve controlling the mother.’
There is also no legal basis by which the courts can protect the fetus from maternal activities that are contrary to the interests of the fetus, such as smoking or substance misuse. Even deprivation of liberty cannot be used to such an effect. However, if the law were to change and allow fetal wardship to exist, it would then give the fetus legal rights which would have to be weighed in the balance against those of the pregnant woman.