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Cambridge Law Journal, 53(), March 1994.pp. 71-80
Printed in Great Britain

ARTICLES

THE FETUS AND THE "RIGHT TO LIFE"

GLANVILLE WILLIAMS

For Man to tell how human Life began

Is hard: for who himself beginning knew?
Milton, ParadiseLost, Book 8.

THE philosophical answer to Milton's problem is, like so many

philosophical answers, a counter-question. What do you mean by
human life? This could involve further probing of a kind that a pre-
Darwinian like John Milton would fail to comprehend. Does he
include Neanderthal man, for example, in "human life", or does he
want to start with Homo sapiens?
A resurrected Milton might protest that in writing ParadiseLost
he was not concerned with problems of evolution (of which he had
not previously heard). His question suggests that he was thinking of
the "life" of a particular "human being"; but he knew so little of what
we now call biology that he would probably have been as nonplussed
by the biological answer to his problem as one given in terms of
prehistory.
The debate is ancient, but it still rumbles on, fuelled by differences
of religious opinion, and now has even surfaced in the European
Court of Human Rights. English law does not try to answer the
question when human life begins, but it gives a clear answer to the
question when human personhood begins. It begins with birth,' which

Tait [1990] 1 Q.B. 290 (a threat to a pregnant woman to kill her fetus is not a threat to kill a
"person"); Hamilton v. Fife Health Board (1992) The Times, 28 January. The point took three
days of argument to settle in Brady (Crown Court 1993). The Times, 7 July. In Canada the right
to life conferred by the Charter of Human Rights has been held not to encompass the fetus:
Borowskiv. A-G of Canada [198714 W.W.R. 385; cp. Tremblay v. Daigle [198912 S.C.R. 530.
Purely on terminology: the word is often spelt "foetus", and is so spelt in statutes; but "fetus" is
etymologically correct and is now coming to be preferred in medical writing ([19671 1 B.M.J.
425; [197212 Lancet 1123: [198112 Lancet 1085; 3 Biochemistry Society Bulletin. December 1981:
288 B.M.J. 1605). The e is long. Medical parlance distinguishes between the embryo, up to about
8 weeks' gestation (by which time it is sufficiently developed to be unmistakably human) and the
fetus which it them becomes; but the distinction has no legal significance, and legal writings do
not generally adopt it. Both embryo and fetus are here denoted by the latter term.
 The Cambridge Law Journal [1994]

means that the child must be completely extruded and must breathe. 2
Some may object that lawyers are too apt to suppose that the
ultimate problems of life are questions of law. When Milton put his
problem, it may be said, he was thinking about facts, not law. Yet
questions that may at first appear to be about facts often turn out to
be about language or concepts or emotion. (Do not take me as
denying the importance of emotion, which has a powerful influence
upon conduct; I am simply pointing out that our emotions are neither
empirical facts nor word-meanings, even though language may trigger
emotion.)
Induced abortion after the early weeks of pregnancy is in varying
degree regrettable or distressing (even if a distressing necessity),
because an incipient human being is being destroyed. Some would
say, impatiently, that induced abortion is more than distressing: it is
utterly (or almost utterly) wrong. It offends against the religious
belief in the sanctity of life. This is the traditional Judaeo-Christian
view, and, before the present century, the historic tenet of the
medical profession, evidenced by the Hippocratic Oath, which has
been dated to the 4th century BC. (Hippocrates allowed abortion for
slave prostitutes, so he was not entirely consistent in his teaching.)
The law followed religion in this matter, the more readily because
for most of our history inducing abortion was a dangerous procedure.
But the crime continued after medical science had advanced to the
stage when medical abortions were possible. If the crime of abortion
had never been invented, the doctors would then have been allowed
to provide women with a service that they wanted, and would have
refined medical practice so as to achieve a reasonable compromise
between conflicting ideals. This is the position at which we have
finally arrived in this country, but only after much acrimonious
debate.
The argument turns in part on the meaning of words. Ordinary
language is uncertain. Women who are happy with their pregnancy
think of themselves as carrying a child, or an unborn child, while
unwilling mothers tend to use the unfriendly word "it" (" getting rid

2 See C. v. S. (judgment of Heilbron J. afiirmed in the C.A.): 119881 t.B. 135. [1987]]All E.R.
1230: Rance v. Mid-Downs H.A. 119911 i O.B. 587. Whether the infant must be able to breath
without mechanical assistance is left undecided. Dr. I.J. Keown, a vigorous opponent of efforts
to reduce the scope of the abortion law, challenges C. v. S.,because in his view an unborn child
can be murdered. One of his reasons is based on Coke's rule (see note 8 below), which
contemplates that at child can be the subject of murder if it is born after it has quickened:
quickening takes place well before the child is able to breathe: therefore, he concludes, breathing
is unnecessary for live birth ((1988) 104 L. .R. 141). The reasoning is fallacious. Cokc's rule
required both (i) quickening and (ii) live birth: the fact that a child can quicken without being
able to breathe does not dispense with the necessity for live birth. In Coke's time the legal
definition of live birth was unsettled, and in addition he may well have been hazy about the
obstetric facts. His requirement of quickening is no longer part of the law.
C.L.J. The Fetus and the "Right to Life"

of it"), or, medically, the word "fetus". We cannot give effect to both
sympathies in our attitude to abortion.
In the past, women did not much like the word "pregnant" in
general social conversation. The genteel term was "expecting", i.e.
expecting a child. They were "in the family way", rather than having
a family. It is natural for people to speak proleptically of a mature
fetus as an "unborn child", just as we may speak historically of a
woman's "dead child", but neither an unborn child nor a dead child
is a child now.
Also, lawyers need precise language, and it is legally incorrect to
suppose that an "unborn child" is a child. A woman who claimed
social security benefit on account of her "child", without mentioning
that it was unborn, would get into trouble. In the early stage of fetal
development some people, not only lawyers, would incline to think
the phrase "unborn child" out of place. It would certainly be odd to
refer thus to a microscopic fertilised ovum, or to the mass of cells
into which it shortly develops-cells nearly all of which will be shed
as parts of the afterbirth. To call this an "unborn child" would be a
flight of fancy.
The philosophical debate is whether there is a difference in moral
status between the fetus (using that word to include the fertilised
ovum) and the born child, and, if so, what the moral status of the
fetus is. The answer cannot be given by studying ordinary language,
or even (as some erroneously suppose) by studying the proven facts
of biology. Moral conclusions can be regarded as immediately "given"
only by intuition, or by the instruction of another whose authority
one respects, or else by derivation from accepted moral premises;
but it is just as well for the moralist to know the facts to which he is
applying his moral opinions.
In practice the question of the moral status of the fetus depends
very largely upon one's own religious belief. Some believers do not
regard their religion as affecting this status, and consequently as
affecting the question of abortion; others do. Humanists, by defini-
tion, subscribe to ethical beliefs that they think of as being indepen-
dent of religion.
The connection between attitudes to abortion and religious belief
is somewhat obscured by the fact that those who are most strongly
against induced abortion word their objection in terms of the "right
to life" of the fetus, rather than upon religious grounds. Obviously,
they hope to win more assent from non-believers by expressing
themselves in secular terms than by avowing a religious position. The
Constitution of the United States forbids the establishment of religion,
and therefore, one would think, forbids the turning of religious sins
(as such) into secular crimes; but Americans can campaign against
 The Cambridge Law Journal [1994]

legal abortion, without apparent disloyalty to the Constitution, by

disavowing the religious basis of their campaign. Moreover, support
for "human rights" in general is the current vogue; so it is a good
sales ploy.
Ronald Dworkin, in his recent book Life's Dominion, recognises
that the anti-abortion position is basically religious, but suggests that
a compromise can be reached if the two sides would agree that
although "human life is sacred", Government has no right to dictate
an anti-abortion position. While applauding anyone who argues
against religious bigotry I must say that there is no sign of such a
"compromise" being reached. So long as the anti-abortionists see
induced abortion as murder or near-murder, which is absolutely
forbidden, while the pro-choice camp regards it as a matter for the
individual conscience, there is no hope of agreement.
I myself write from a non-religious point of view, that is to say, as
a humanist. In the words of a lapsed Quaker, "I have no religion
now, thank God". Nevertheless, I hope I shall be believed when I
say that it is not my intention to mount a campaign against any
religion. I find the details of some world religions to be against the
public interest (doesn't everybody?), but many people derive comfort,
inspiration, friendship and guidance from metaphysical belief, which
I do not seek to question. Having made this disavowal, I return to
the subject. Can the fetus acceptably be said, even from its earliest
stages, to have the right to life of a human being? You and 1 may
think of ourselves as entities sharply distinct from the rest of the
world, having, as some of us hopefully suppose, immortal souls,
unique to Man. However this may be, there are no sharp lines in
nature. Abstract human life does not "begin"; it just keeps going.
Our genetic constitution derives from a separate ovum and sperm
(themselves deriving from two other humans), which progressively
fuse together. This fused cell, the zygote, is a discrete, unicellular,
live creature with a complete set of human genes. Does this provide
the answer to Milton's problem?
Many (not all) moralists of the Roman Catholic persuasion, and,
I suppose, all of the anti-abortion or "pro-life" lobby, believe so.
They hold that the two germ-cells become a "moral person" (a person
for the purpose of our moral beliefs) at "the moment of conception",
when they fuse to become one. The new person hasn't actually arms
or legs; it hasn't actually a brain, or nervous system, or lungs, or even
a heart. Our ancestors at one time imagined it as a little man, a
homunculus, who would be seen to be such if viewed through
a sufficiently powerful miscroscope. Now we have the powerful
miscroscope, and know better, but still (it is argued) the creature
must be a human being. It is a being-no one can deny that; and it is
C.L.J. The Fetus and the "Right to Life"

human-it is not a chimp. So putting one and one together it must be

a human being. Or, at least, it is a potential human being, which the
law should protect as such, because all life is sacred.
Is that convincing? Humanists reply that abstract human "life",
as such, is not sacred. Devotees of a particular religion may regard
their own priests as sacred, but we are not all sacred. The intrinsic
wrongness of killing lies not in the special sanctity of the victim but
in killing a fellow-human (certain situations of overwhelming necessity
apart). No sensible understanding of the sanctity of life requires us
to breed without limit, a short-sighted propensity that in the world as
a whole is already creating severe family and environmental problems,
which will be enormously increased within the present generation, let
alone future ones. Ideally, it is true, population control should be
achieved by contraception; but some of those who most fervently
want to punish any interference with the developing fetus also want
to forbid artificial contraception. One thing is certain: unless we
accept either abortion or an efficient system of contraception, or
both, there are bound to be unwanted pregnancies. For, as Mr.
Micawber memorably observed, accidents will occur in the best-
regulated families; and many couplings are totally devoid of
"regulation".
Critics of the old abortion law, the "pro-choice" lobby, to which
I give my own allegiance, think it absurd to argue that a fetus is a
human being, in the moral sense, at all stages. We pro-choicers were
led to our opinion because we were repelled by the immense amount
of suffering caused by the unreformed abortion law, which in effect
compelled people to be parents without their wish. The evils, which
are listed briefly in a footnote,- were very largely, though not entirely,
ended by the Abortion Act 1967. The memory of them may have

Girls as young as 12, pregnant by their fathers, were refused abortions. Special boarding schools
were opened for expectant mothers aged from 12 upwards, in order that they might continue
with their lessons while looking after their babies. Women who had been raped, women deserted
by their husbands, and overburdened mothers living in poverty with large families, also failed to
get a medical abortion. One "liberal" hospital in London and one in Newcastle performed the
operation comparatively freely, but the doctors concerned suffered faint opprobrium from people
who should have known better (the courageous London doctor who opcratcd within the law as
laid down in Bourne 119391 I K.B. 687 was known as thc "Gower Strect abortionist"), and their
example was not generally followed. Abortions could be readily bought in FHarlcy Street but in
general the mass of women could only go to a "back-street abortionist". wielding a knitting
needle, syringe or stick of slippery clm, or to a skilled operator acting illegally for large fees.
Some unwilling mothers-to-be used dangerous methods on themselves. A teenage girl who took
quinine to produce a miscarriage became blind (letter by Dr. C. Brewer in The Times. 3t) June
1965). Other women became paralysed for life or gravcly impaired in health; some committed
suicide. Although illegal abortions ran into thousands each year. convictions were comparatively
few (less than a hundred a year), largely because women who had sought the help of an
abortionist were unwilling to give him away, but partly also because the police themselves tended
not to look upon abortion as a real crime. The only people who were effectivcly deterred by the
law were the doctors, who alone could operate safely. The problem was common to all Christian
countries that started with an unqualilied prohibition of abortion.
 The Cambridge Law Journal [19941

been blurred by time, but they continue in some other countries and
remain a horrendous example of the danger of trying to turn
controversial and a priori morality into law.
The idea of a moment of conception when a new human being is
miraculously created is over-dramatised, and results from ignorance
of modern biology. The "moment" when the two gametes (the sperm
and the ovum) fuse resolves itself under the microscope into a
succession of clearly discernible stages, which may take 24 hours or
more to complete. No one of these stages identifies itself as obviously
the "moment of conception". However you date man's beginning, it
is, like his ending, a process.
The pro-life argument about "human beings" is an effort to
obliterate an important distinction by playing with words. No one
would think of maintaining that an acorn is the same as an oak tree
because both are "quercine beings". The term "human being" is
commonly applied to a member of the human community, which a
zygote or fetus is not. A human being, or person, is someone far
more than a zygote. Fusion of the two gametes produces not a new
"person" but only an organism that will in due course, all being well,
become a person; and then opinion diverges on when the moral
transition from "becoming" to actual "personhood" takes place.
Biology gives no clue. After fertilisation the human egg takes
about three days to travel down the uterine tube (the fallopian tube)
to the womb, dividing as it goes, so that on entry to the womb the
microscopic organism has eight cells, no one of which is different
from the others. On about the 10th day (if it is lucky) it begins to
embed itself into the womb-lining ("implantation" or "nidation").
("Luck" is required because at least 40 per cent., and possibly most,
of human preimplantation embryos are spontaneously aborted.) For
the first 14 days after fertilisation the name "'pre-embryo" has been
authoritatively suggested; it is certainly preferable to the deeply
unattractive term "blastocyst".
Implantation is a vital step in the development of the fetus, and
the pre-embryo is now safer than it has so far been in its short life.
Some would date conception from this point, and both legal and
medical opinion now regard it as the starting-point for the law of
,unlawfully procuring a miscarriage". It presents fewer difficulties
and less social strain than starting with fertilisation, but if the proposal
is that legal personality (and therefore the law of murder) should

Recalling a discussion of research on human embryos, Danmc Mary Warnock declared, with somc
vehemence: "To say, as one speaker did. that there is no difference between experimentation at
14 days or 4(0days or ipto 40 years, that there isreally no difference between an embryo and a
fully-grown child, is an absolutely preposterously stupid thing to say".
C.L.J. The Fetus and the "Right to Life"

date from implantation, this would be open to almost all the same
theoretical and practical objections as dating it from fertilisation.
At about the 14th day the conceptus develops a groove which
scientists (and now Parliament5 ) dub the "primitive streak", the
beginning of cell differentiation. If the primitive streak does not
form, there will be no embryo, and the cluster of cells (now just
visible to the naked eye) will be re-absorbed and vanish. So why not
say that we all begin with the primitive streak?
Here we go again. This tiny cell-cluster cannot reasonably be
called a "person". The quest for personhood at this stage of
development would be ridiculous.
Jumping the rest of the biological details, it suffices to say that the
lungs are not formed before the 18th week, when they still cannot
take in air; to reach this stage the fetus must not be born before the
23rd or 24th week. Timing is approximate; nature does not run like
a clock, and any fetal age one fixes is to some extent arbitrary. Birth
itself is a process (as death is).
Summing up, although one can see notable events, dramatic
stages, in our genesis, none of them gives an inevitable answer to
Milton's question; they merely confirm him in his impression that it
is a hard problem. Ovulation and the ejaculation of sperm are notable
events. So is fertilisation. So is implantation. So is the development
of the primitive streak, and later of heart, brain and lungs. So is
birth. Without all these events (and not merely some of them), you
and I would not exist.
The pro-lifers think they solve the problem by admitting that the
development of the fetus is continuous; they say that because no line
can be drawn, the law must protect the human organism from the
time of fertilisation. But what is the logic (never mind the practicality)
of beginning with fertilisation? It is an essential stage in our develop-
ment, but so are all the others. It has been well said that "life is a
continuum which semantics, ethics and the law force us to divide at
arbitary points".'
Before birth, the law of abortion gives the fetus limited legal
protection (increasing as gestational age advances), but there is now
general (not universal) agreement that the degree of protection
given by the law of abortion must depend on practical considerations,
including the degree of development of the fetus, the injury that
may be done to the woman and her existing children if she gives

Human Fertilisation and Embryology Act 1990, s. 3(3)(a).

Malcolm Potts in [19831 2 Vie Lancet 223. He wcnt on to say: "To pursue a less emotive parallel
from postnatal life, we would not in a democracy give the vote to a child of 6 months or withhold
it until an individual is 60, but whether the franchise is given at 18. 20 or 30 is an arbitrary
decision".
 The Cambridge Law Journal [1994]

birth, and the question whether the fetus is defective. The evolution
of the law has left the decision on these questions very much to
doctors, but they are themselves divided in their moral opinions. In
the face of such disagreements, should not the question of abortion,
at least during the major part of pregnancy, be left to the woman
and doctor concerned?7 But we have not yet arrived at this position.
In contrast, those who are wholly opposed to abortion, the "right-
to-lifers", wish not only to preserve the law of abortion in its full
rigour but to move its application backwards, at least for the later
stages of pregnancy, when they would count abortion as murder or
manslaughter according to the mental element. In these later stages
the fetus is recognisably (indeed, poignantly) human, a fact of which
anti-abortionists make use when they send hundreds of plastic fetuses
to M.P.s during a debate on abortion. Their argument is that the
fetus at a certain stage of development not only looks human but is
human. But here again we are getting tied up with words. The
conceptus is, in one sense, human from the start, just as an acorn is
quercine from the start. The question is not whether the conceptus is
human but whether it should be given the same legal protection as
you and me. Late abortions are allowed by law in very serious cases,
but obstetric surgeons are well aware of the objections to delayed
terminations and rarely feel the need to perform them. Indeed, they
are not allowed to perform them except as specified by law.
The a prioriargument that a fetus is a "human being", if accepted,
would be enormously effective. It could, at a stroke, nullify the
modern legislation allowing medical abortion without time-limit if
the grounds are sufficiently serious-which is, of course why the pro-
lifers favour it. There is nothing to support it in English law, but it
may conceivably derive argumentative assistance from the European
Convention on Human Rights. In a case before the Strasbourg court,'
the issue was whether the Irish Supreme Court could, by injunction,
forbid people in the Republic of Ireland to give information about
terminations of pregnancy in Britain (Irish women being accustomed
to travel to Britain in large numbers-about 4,000 a year-in order
to obtain medical help denied them at home). The majority of the
court returned a negative answer, thereby allowing the traffic to
continue; but the question left unanswered by the majority was
whether an information ban was justified under two woolly provisions
of the Convention: Article 2 ("Everyone's right to life shall be

The point is well made by Linda Clarke in Birthrights, ed. Robert Lee and D. Morgan, paperback
edn. (1990), p. 166. Cp. Margaret Brazier, review of Dr. Keown's Abortion, Doctors and the
Law (1988) in (1989) 9 L.S. 217.
Open Door and Dublin Well Woman v. Ireland Eur. Court H.R., Decision of 24 March 1992,
Series A. no. 246-A.
C.L.J. The Fetus and the "Right to Life"

protected by law") and Article 10 (whether the ban was "necessary

for the protection of the rights of others"). Is a fetus included in
"everyone", and is it included in "others"? A minority of six judges
were firmly of the view that the two articles protected unborn
children, but the majority (of seven) were silent on the subject.
The issue was an extremely ticklish one for the international
court. Irish opinion on the whole strongly favoured the ban on
abortion, regarding this practice as almost as reprehensible as murder.
The ban has created inevitable strains, though it has been alleviated
by the opportunity of Irish women to obtain medical assistance in
Britain. (In addition to the 4,000 a year who come from the Republic,
2,000 come from Ulster, where the broad grounds allowed by the
Abortion Act in Britain do not apply.) It might appear reasonable
for an international court to hold that the moral question is one for
each country to decide, provided that its decision does not affect
other countries. But there is a serious difficulty in the way of this
solution. The European Convention on Human Rights is a moral
declaration as well as a legal document, and the Strasbourg court is
set up to enforce it for all the signatory States. If a fetus is to be
accounted a "person" under the Convention in respect of the Republic
of Ireland, it must, logically, be a person under the Convention for
the law of Northern Ireland and even of Britain. What the Irish may
then regard as a protective provision becomes, for Britain, a severe
hindrance to sensible social arrangements.
Doubtless having seen this danger, the majority of the court
determined to avoid as many thorns as possible by deciding the case
purely on the restriction of information. In this it was assisted by the
happy chance that the Irish Supreme Court had just loosened the
local law to the smallest possible extent by allowing medical abortions
where there was a real and substantial risk to the woman's life if the
pregnancy were allowed to continue. The court relied on this decision
as showing that the unqualified ban was too broad, even for the law
of the Republic itself. Presumably this means that the ban might have
been valid if it had been confined to the giving of information for
saving life. Would a ban on giving information about abortions on
general health grounds then have been enforceable? And what about
the question left undecided by the majority: is the fetus a person
whose "right to life" must be protected by law, irrespective of any
damage the continuation of the pregnancy may do to the health of
the woman? May that question be decided differently in the Republic
and in Britain? The question will become even more awkward if, in
accordance with the strong weight of medical and popular opinion in
Britain, abortions by doctors are made totally free from control
during the first trimester.
80 The Cambridge Law Journal [19941

Although the European court could theoretically accept the notion

of a general "right to life" of the fetus if the matter were raised again,
this being elevated above the "right to health" of the woman
concerned, I find it very hard to contemplate that it would do so. In
particular, it would be unwise, so unwise as to be inconceivable, for
the European court, a virtually all-male judicial body, to restrict the
legality of abortion radically, when this is a matter that affects women
so closely. Incidentally, if the Strasbourg court continues to involve
itself in the attitude of the Irish towards abortion, it may be called
upon to decide at the international level whether the right to life of
the fetus extends to the pre-embryo before implantation.