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Chapter 08

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Chapter 8 - Abortion, neonaticide and infanticide



Tara, a 25-year-old businesswoman, was 23 weeks pregnant and scheduled for an abortion.  She had approached a clinic, which had accepted her for treatment and provided counselling. However, the stress of the procedure had been too much, and she went into spontaneous labour the night before she was due to undergo the termination.  The baby, Mary, was born alive, but severely brain damaged and a medical assessment found that Mary was blind and deaf, but could feel pain.  Staff at the hospital approach Marc from Rowlett McGuinness LLP and Simon the hospital ethicist and ask for their opinion regarding whether Mary should be provided with nursing care only and allowed to die.


Marc had previously been consulted in relation to the proposed termination, and had taken steps to ensure that the scheduling of the termination was within the bounds of the Abortion Act 1967 (p. 189).  Since the pregnancy is less than 24 weeks old, it may be authorised by the ‘social ground’ in s.1(1)(a) of the 1967 Act (p. 190), which means that it is unlikely that there would have been a successful legal challenge had the operation been performed so long as two doctors had asserted that to continue with the pregnancy would have constituted a risk to the physical or mental health of  Tara.  However, once the baby has been born alive – whether this is as a result of spontaneous labour or a failed abortion – then the child is a person in its own right and has to be treated as such.  Marc explains that this means that the primary considerations must be the welfare of the child, and whether to continue to provide treatment would be in the interests of the baby.  He tells the staff at the hospital that in other cases involving brain damage and a prognosis involving a very poor quality of life, particularly when coupled with an ability to feel pain, the courts have been sympathetic to the view that treatment could be withdrawn and the baby allowed to die. Simon makes it clear that any termination is ethically problematic and that it would, of course, always be preferable to let life prosper to the fullest extent possible. At the same time this is, as so often, a situation of conflicting interests and the law's approach to balancing the mother-to-be's interests against that of the unborn life is ethically justifiable. Simon agrees that once the baby has been born, it is entitled to expect the full protection of society and the law and ought to be treated in the same way as other human beings, including medical care. Any discontinuation of medical treatment, or a limitation to nursing care only, would certainly not be permissible simply on the grounds of an assumption that Mary's life is 'worth less' than a healthy child's. Where, however, the focus of attention is on what is thought to be best for Mary, it is in some instances possible to argue that to make a baby such as Mary comfortable and allow her to die with a minimum of suffering is the preferable route to take. Simon expressly makes it clear that good ethical arguments can be found to argue for both the continued intensive-care treatment of Mary as well as the proposed option to allow her to die. The latter can, however, be justifiable and may, in this case, be the preferred option.


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