Abortion. Women's choice under scrutiny

Barbara Hewson believes the weight of law was behind the rights of the woman in the recent case where a husband sought to prevent his estranged wife from having an abortion. Barbara Hewson is a barrister at Littman Chambers, 12 Gray's Inn Square. The recent battle between Lynne Kelly and her estranged husband in the Scottish courts once again shows a pregnant woman's choices being subjected to judicial scrutiny and intervention. This time the pretext was alleged “foetal rights”.

Unlike recent “forced Caesarean” cases in England, where judges compelled pregnant women to undergo an unwanted obstetric procedure, this case involved the opposite scenario. Mrs Kelly was being denied an operation, about which she and her doctors were in agreement. Although presented as a conflict between a woman and a foetus, it was really a conflict between a husband and a wife.

It is unclear why the Scottish courts upheld the interdicts against Mrs Kelly, after ruling that Scottish law does not ascribe legal rights to a foetus.

Normally, applications for injunctions must show a good arguable case to qualify for interim relief. Assuming similar considerations apply in Scotland, Mr Kelly's conclusive defeat would not entitle him to continue the interdict.

Pregnancy is a progressive condition, and the interdict could not be said to protect the status quo. Mrs Kelly was nearing the stage when abortion would involve an induced labour, which she was said to be anxious to avoid. By continuing the interdict, the courts gave Mr Kelly the result he wanted, indirectly. Now, he says he will agree to the operation.

Whatever the moral debate about the status of the foetus, the issue before the court was a legal one. Could Mr Kelly identify a legal right of his own, or of the foetus, which would be infringed if Mrs Kelly had the abortion? Unsurprisingly, he could not. Adults cannot be compelled to undergo, or to forego, medical treatment at their spouse's behest.

Common law has consistently declined to acknowledge that foetuses have a separate existence before birth (see AG's reference (No.3) [1996] 2 All ER 10). In a Canadian case, Daigle v Tremblay [1989] SCR 634, a man tried unsuccessfully to stop his estranged partner having an abortion. The Supreme Court ruled that foetuses were not “human beings” under the Quebec Charter of Human Rights. It relied on the absence of recognition of foetal rights at common law. It cited Paton v BPAS [1979] QB 276, C v S [1987] 1 All ER 1230 and Re F (in utero) [1988] Fam 123. It distinguished situations where foetuses become entitled to inherit or to make personal injury claims, after being born alive, as a “fiction of the civil law” (see Montreal Tramways Co v Leveille [1933] SCR 456).

Articles 2 and 8 (1) of the European Convention on Human Rights, which cover the right to life and the right to respect for private and family life, would not assist Mr Kelly. In Paton v UK (1978) it was ruled that to abort a 10-week old foetus to protect a woman's mental or physical health did not breach article 2. In H v Norway (1992), a similar decision was reached in relation to the abortion of a 14-week old foetus on social grounds. In Paton the husband's claim under article 8 (1) also failed. In Keegan v Ireland (1994) and Kroon v Netherlands (1994), the European Court of Human Rights held that an unmarried father could establish a right to respect for family life with his child, but both decisions emphasised that this started from birth.

By contrast, Mrs Kelly could have argued that, if a court interfered with her decision to abort on medical advice, it would be violating her right to respect for private life under article 8 (1). It is unlikely that compelling a woman to continue her pregnancy, to the detriment of her health, could be justified when Parliament has authorised abortion in such circumstances.

In addition, she could have relied on her right not to be discriminated against, under article 14 or turned to article 59 of the Rome Treaty, which gives women freedom to travel to another member state for an abortion (see SPUC v Grogan [1991] 3 CMLR 849).