1 September, 2012
Reproduced with permission.
The recent case involving two brave Scottish midwives, Mary Doogan and
Connie Wood, who when ordered by their employers to supervise staff involved
in carrying out abortions refused to do so, has hit the headlines recently.
The decision at first instance made by the judge in the Outer House of the
Court of Session in Scotland can be read
although the reader should not take too literally the judge's explanation of
the background facts and her understanding of the main points at issue.
The judge decided to refuse the midwives' application for an order
confirming that section 4 of the Abortion Act permits them to refuse their
employers order. In response, with support from the Society for the
Protection of Unborn Children, Mary Doogan and Connie Wood have entered a
formal appeal against the judge's decision and the appeal is due to be heard
next January. Further details of the case and how one can contribute to the
fund being raised to support these two courageous midwives can be found on
Section 4 was inserted in the Abortion Act 1967 as a sop to those who do
not approve of abortion, principally characterised in the Parliamentary
debates as "Catholics". David Steel MP (as he then was, now Lord Steel of
Aikwood), who introduced the Abortion Act into Parliament as a Private
Member's Bill, told the House of Commons on 22 July 1966, during the debate
on the Second Reading of his Bill, that :
"There is nothing in the Bill which compels .........
a Catholic doctor to be in any way involved in the termination of a
pregnancy" (Column 1077)
He made no reference to non-Catholics or to medical staff other than
doctors who might object to being compelled to kill unborn children but
perhaps either he did not understand the contents of his own Bill or common
sense prevailed and the wording of the conscientious objection clause was
widened after the Second Reading and before the Act was passed. In fact
section 4 of the Abortion Act confirms that "no person shall be under any
duty" to take part in an abortion.
Lord Steel's casual use of the words "in any way" must ring hollow in the
ears of Mary Doogan and Connie Wood. There have been suggestions made
elsewhere that a duty to abort is being developed - see
here for example.
The article below, written by one of ALDU's officers, appeared in ALDU's
Newsletter in the Winter of 1982 and considered the question of
conscientious objection to abortion and how this might affect the position
Newsletter of Association of Lawyers for the Defence of the Unborn
Winter 1982 Number 16
One of the most distressing aspects of the Abortion Act is the change in
social attitudes to which it has led. Whereas before the war to have an
abortion was known to be criminal, and afterwards (despite the 1938 case of
R.-v.-Bourne) generally regarded as being in ordinary cases both
legally criminal and morally shameful, nowadays it is treated as being
permissible, even normal. The pregnant women whom doctors are daily seeing
in their surgeries are, of course, largely of the younger generation and
quite naturally express the modern outlook almost instinctively as a matter
of course. They even regard an abortion as their right should they wish it.
In these circumstances doctors whose principles accord with the old view of
the impropriety of abortion wonder how they stand. Is a doctor today even
allowed to do what until recently it would have been obligatory for him to
do and refuse a request for abortion - refuse to kill deliberately an
innocent unborn child?
It should be borne in mind that, in spite of the enormous change in
social attitudes in this century, there have in fact been very few changes
in the law relating to unborn children; indeed only three:
(i) the Infant Life (Preservation) Act 1929;
(ii) the Abortion Act 1967; and
(iii) the Congenital Disabilities (Civil
Liability) Act 1976.
The 1929 Act created the offence of child destruction in the case of
children capable of being born alive. The 1976 Act, which I shall discuss
later, was passed in response to the unsatisfactory outcome of the
thalidomide affair. The Abortion Act 1967 was the critical measure.
Note well the scheme of this Act. It bases itself upon the old law. This
is most important. It does not repeal the old law (under which all abortion
was illegal until 1938 and most abortion thereafter). Quite the opposite -
in s.5 it emphatically re-asserts the old law as it was before Bourne's
case. All that the Abortion Act does is to exempt a doctor who
aborts from criminal prosecution for procuring the miscarriage of a woman,
if two doctors have previously formed certain opinions in good faith as to
risks to life or of injury to physical or mental health. It does no more
than that. Neither was that just an accident.
It should be remembered that the Act was the product of two separate
influences - not just the clamour of liberal women for permission to have
their babies killed, but also the resentment of qualified doctors against
back-street abortionists (doubtless quite as intense as the feelings we
solicitors have against unqualified conveyancers). Accordingly the Act
perfectly deliberately re-enacts the general illegality of abortion with a
limited exemption for qualified doctors holding certain opinions in
particular cases. In other words the law permitting certain abortions is on
a purely negative footing.
The crucial result of this is that abortion remains prima facie
illegal. You would never believe it to examine the abortion statistics or
even to glance at the advertisements on the London Underground, but
nonetheless that is the position in law. It is in practice, for evidentiary
reasons, difficult to prosecute a criminal abortionist successfully. And, of
course, a baby who has been killed does not survive to complain about it.
But these facts do not alter the fundamental state of the law, which is that
abortion is essentially illegal unless in any particular case a doctor can
bring himself within the exemption granted by s.l of the Act.
Thus the Abortion Act is purely permissive and not mandatory. It
does not give a mother a right to an abortion, pace Stephenson L.J.
in McKay v. Essex Area Health Authority & Anor. (
2W.L.R. 890 at p. 901.). When liberals refer to "a woman's right to choose
an abortion" they are expressing their own philosophical outlook; they are
not talking about the law of England which confers no such right whatever.
No duty to abort
Equally the law does not impose upon any doctor a duty to abort. That the
Abortion Act itself imposes no such duty is apparent from its own
wording, and was confirmed to be the case by Stephenson L.J. in McKay's
case (supra at p. 901). It was thought at one time, following
R.-v.-Bourne ( 1 K.B. 687), that a doctor might have a duty to
abort in certain serious cases of danger to the mother's life or of grave
permanent injury to her physical or mental health (cases which are
mercifully very rare these days), and s.4(2) of the Abortion Act
refers to the possibility of such a duty existing.
The ruling in Bourne's case, however, was abolished by s.5(2) of
the Abortion Act itself, and this quite deliberately for the
purpose of removing an unwanted accretion to the common law which had
unintended side effects, through an extension of the defence of necessity,
in relation to other crimes altogether. There was no other source apart from
Bourne's case from which any duty to abort even in serious cases
might derive, for neither the common law, nor the old text book writers, nor
the old statutes knew anything of any such duty - quite the opposite, they
universally treated abortion as a most heinous crime. Accordingly the ruling
in Bourne's case having been repealed, the duty derived from it (and
from it alone) must have ceased to exist. Thus s.4(2) is seen to consist of
words empty of meaning.
Incidentally, the Abortion Act did in fact expressly exempt, by
s.4(l), not just doctors but everybody concerned from any duty to
participate in abortion operations if they conscientiously objected to
taking part. This is a broad general exemption not restricted to the
criminal law. It applies to "any duty, whether by contract or by any
statutory or other legal requirement". Hospital boards and other employers
may not impose duties expressly forbidden by statute and therefore this
subsection gives complete protection to all doctors, nurses, anaesthetists
and ancillary workers who conscientiously object to participating in
abortion operations (although I fear it does not stop employers from
restricting recruitment to those willing to carry out abortions).
The duty of care owed to the child
I turn next to the subject of a doctor's duty towards the unborn child of
his pregnant woman patient; not the nature and extent of that duty (for that
lies beyond the scope of this article) but simply the question whether a
doctor has a duty of care towards the unborn child at all. Perhaps the
reader's reaction is to say, "Of course he has such a duty - how outrageous
to suggest otherwise". Would that it were so clear. Naturally a doctor
treating a pregnant woman had a duty of care towards the child at common law
as elucidated by Lord Atkin in the leading case of Donoghue v.
Stevenson ( A.C. 562). The child is closely and directly affected
by the doctor's conduct and therefore the doctor had a duty of care towards
him. Thus if a child were born injured by negligent ante-natal treatment or
negligent delivery then the doctor would be liable. The whole issue is now
covered by the Congenital Disabilities (Civil Liability) Act 1976.
Unlike the Abortion Act this statute was not grafted on to the
old law, but completely replaced the common law by a new statutory code -
s.4(5). Although the thalidomide case was settled out of Court, the legal
problems faced by children seeking redress for injuries suffered before
birth became sufficiently obvious for the matter to be referred to the Law
Commission. The Commission was confronted by the task of devising a cause of
action for children injured in the womb but not for those killed in the
womb. It achieved this by confining a right to sue to those actually born,
by removing any duty of care on the part of the mother (except while driving
a motor car), and by limiting the class of persons a child may sue to those
who also had a duty of care to the child's parent. According to the
Commission's report, the aim was to make the child's right of action purely
derivative from his parent's and to destroy any direct nexus of legal duty
between the doctor and the child in utero.
Nevertheless it is not clear that the 1976 Act, which was based on this
report, has actually done this, for it provides by s.l (3) that the
defendant (meaning for the purpose of this discussion the doctor, though in
another context it might mean a drug company or indeed anybody else) is
answerable to the child. The child can only sue after he has been born, but
even so if the doctor is answerable to the child in respect of ante-natal
injuries then he must have a duty of care towards the child, for he can
hardly be held culpable at the instance of someone to whom he owes no duty.
Summary of the legal position
Now we come to the nub of the matter. Can a doctor, who refuses to abort
or to recommend his pregnant woman patient to another doctor who will abort,
be sued by her for negligence if she suffers some injury, physical or
mental, from carrying or bearing the child when she might not have suffered
in that way if she had had an abortion? In my view he cannot, for the
(i) His conduct will not have been negligent but
deliberate, with the wholly laudable intention of saving the baby's life.
(The position would, of course, be quite different if the doctor had in fact
been negligent in his treatment of either the mother or the child.)
(ii) As mentioned above,* the doctor is under no duty
to abort (or therefore to recommend an abortion) and he can hardly be
accused of negligence for not doing or causing to be done that which he was
under no duty to do - East Suffolk River Catchment Board v. Kent
( A.C. 74). That is so even though the doctor might have had power to
abort from the circumstances falling within s.l of the Abortion Act.
(iii) As mentioned above,** the doctor has a duty to
the child as well as the mother and he is entitled to take both duties
(iv) The injury (if any) will have been caused by the
carrying or bearing of the child, i.e. by natural causes and not by the
action of the doctor.
(v) As abortion remains prima facie illegal any
action ought to be barred on the principle ex turpi causa non oritur
*Vide paragraph 6
**Vide paragraph 9
***From a wrongful cause no action arises