Protection of the Unborn Child and the Rights of Parents.

Recent Developments in Swedish and English Law1

 

 

By högskolelektor PER WESTMAN

1. Introduction
The issue of protection of unborn children has been much discussed over the last years, not only in legal debate but also among professionals in other fields, such as medical and ethical. Looking on legal matters it is noticeable that steps have now been and are taken towards a recognition of the unborn child as a legal subject. Still, the main legal — and ethical — difference between a born person and an unborn person seems to be that the former has the rights (and duties) that come with the concept of a legal subject, while the latter lacks these rights (and duties), or most of them.
    In this paper, I shall examine the development in Swedish law in this field. As a comparison I shall give a few notes on English law.
    It is not certain that the rights or the protection of unborn children are contradictory to parental rights (and duties). In most cases the rule is rather that their interests coincide. But sometimes it may occur that the interest of protecting the unborn child is the opposite of that of either or both parents. The following rather drastic example shows such a conflict. During the late stage of pregnancy of a woman it is discovered that the baby — still not born — has an illness or defect. Let us presume that the defect (a small heart defect) is not of a serious kind — it will not lead to complications for the baby after birth. But the baby will not survive a birth the normal way. It has to be delivered by a Caesarean section. Let us further presume that the woman does not want to have a Caesarean section — for some private reason, e.g. because she is afraid of the surgery or she doesn’t want a disfiguring scar. What is the dilemma here? The woman wants to have her baby, so it is not a question of ending life, or abortion. But still, the ethical question is whether the woman should have the right to decide over the baby’s life on such grounds as the above mentioned. The law still has no clear answer to this and other ethical problems. The ethical dilemma is even more difficult to solve if it stands between the life

1 Artikeln bygger på ett föredrag av författaren vid The VIIth World Conference of the International Society on Family Law, Opatija, Jugoslavien, april 1991.

480 Per Westman SvJT 1993 of the unborn child and the life of the woman, e. g. if the surgery which is needed to save the unborn child will be of great danger to the woman.
    This example shows us that the rights of unborn children and the rights (or interests) of parents may differ. So may of course the interests of born children and parents as well, but in those cases the law often provides for protection of the child. When we talk about unborn children, there is normally no legal protection of that kind.
    Another example regards medical achievements. It is a medical progress that cell tissue from dead foetuses may be used for treatment of diseases such as Parkinson’s disease and Alzheimer’s disease. Even transplantation of organs from foetuses may be done. As long as such surgery is performed on foetuses that have been aborted on grounds laid down in law it is acceptable. It is harder to justify abortion as a means to get access to foetal tissue or organs. This is to my mind a difficult ethical problem, which at length will become a legal dilemma. There are more questions to this. Should a pregnant woman be allowed to decide on such a question on her own or should the man (the father) have a say? Should a woman even be allowed to take the decision to become pregnant in order to have an abortion so that tissue from the foetus could be used in the treatment of somebody close to her? I think most of us would at least hesitate before the last question and we possibly would not accept it from an ethical point of view. Some people may say that the answer depends on whether you look upon the foetus as a child, an individual. As long as a foetus is not treated as a child it is easier to accept such treatment. This is right, of course. But it is difficult to draw a line in time after which the foetus should be regarded as a child.
    This leads me over to mention a few words about ethical norms concerning human life and human dignity. The question of when a foetus gains human dignity is indeed an ethical one. There are several stages during the development of the foetus when it could be said to become a human being and when it also gains human dignity. Which point you choose may depend on what ethical norm you think is most important. There are internationally accepted ethical norms about human life. It is an acknowledged and fundamental principle that everyone has the right to life, freedom and personal security and that the right to life is protected by the law. This is what the UN Declaration of Human Rights of 1948 and the European Convention about Human Rights of 1950 declare. Another ethical norm is the 1959 UN

SvJT 1993 Protection of the unborn child 481 Proclamation about the Child’s Rights, where it is stated that ”both the child and its mother shall be given special protection and special care ... before and after birth”. The Council of Europe has passed a recommendation (no. 934) in 1982, in which it is declared that the right to life and physical integrity should mean also a right to inherit a genetic pattern which has not been changed by artificial means. However, it is not certain that such declarations include the unborn.
    A few words should also be mentioned about the legal status for already born children. The child is looked upon as an individual with its own integrity. The child may be a bearer of rights and duties and the law protects the child in various ways. This way of looking upon children is accepted for most legal systems. A number of examples of legal rules to protect the born child could be given, such as legislation about custody, inheritance and maintenance. The child becomes legally an individual as soon as it is born. Lawyers use the concept of legal capacity for this legal position.
    Whereas a child after its birth has legal capacity (more or less), the traditional conception of the legal status for unborn children is that these do not have legal capacity. They cannot be bearers of rights and duties. This is the basic idea in most legal systems. Yet, we must ask ourselves if the time has not come to recognize that even the unborn child is an individual of its own with certain rights and that such rights should be protected by the law.
    The examples given above show us that law still has far to go to reach a satisfactory protection for the unborn child. It is clear that there will be no legal ways to force the pregnant woman to have a Caesarean section2 or no answer in the law to the question whether abortion should be allowed in order to make transplantation from the foetus possible.3 There are numerous issues of great interest in the field of protection of the unborn child. As main issues the following should be mentioned.

a) the right to life b) protection against harmful influence c) the right to know one’s origin, and d) the right to secrecy and integrity.

a) The question of right to life involves issues such as abortions, medical treatment of unborn children, medical treatment of the pregnant woman and medical and genetic research.

 

2 But cf. Re S (1992) 3 WLR 806 for such a case. 3 Cf. the recommendations of UK Polkinghome Committe 1992.

482 Per Westman SvJT 1993 b) The question of protection against harmful influence is about the pregnant woman’s use of drugs (alcohol, narcotics), work environmental factors etc. c) The right to know one’s origin comes into focus when we look upon artificial procreation (insemination, IVF etc.). d) The right to secrecy and integrity is more a right for parents than for children. Here, questions arise whether parents’ right to integrity or secrecy should prevent possibilities to protect or cure unborn children.
    The difference between the embryo and the unborn child (at the late stage of its development) is sometimes touched upon. The need for legal protection may be different for these categories. However, this difference will generally not be upheld in this article. For some aspects I will separate the two and I will then talk about the embryo (or the foetus) on one hand and the unborn child on the other.

 

2. Swedish law
2.1 General remarks
There have been some significant changes during the last years in this field in Swedish law. The 1980’s have seen some new Acts and a few governmental reports which are of interest here. The 1984 Act on Artificial Insemination4 and the 1988 Act on In vitro fertilisation5 brought some clarity to the field of artificial procreation. The governmental reports ”Genetic Integrity” 1984,6 ”Protection of the Unborn Child” 19877 and ”The Pregnant Woman and the Foetus — two Individuals” 19898 all dealt with questions of protection for the unborn child in various ways. The 1984 report has been followed by a Governmental Bill, On the Use of Genetic Technology on Humans,9 which has been enacted in March 1991.10 And as a result of the 1987 report there was a Governmental proposal and a Bill in 1990 on Secrecy within and between care authorities. The Governmental Bill was enacted in 1991 with

 

4 Lag (1984:1140) om insemination. 5 Lag (1988:711) om befruktning utanför kroppen. 6 SOU 1984:88, Genetisk integritet. Betänkande av gen-etikkommittén. 7 SOU 1987:11, Skydd för det väntade barnet. 1. Åtgärder vid missbruk m. m. under graviditet. Delbetänkande av utredningen om det ofödda barnet. 8 SOU 1989:51, Den gravida kvinnan och fostret — två individer. Om fosterdiagnostik. Om sena aborter. Slutbetänkande av utredningen om det ofödda barnet. 9 Prop. 1990/91:52, Om användning av genteknik på människa, m. m. 10 Lag (1991:114) om användning av viss genteknik vid allmänna hälsoundersökningar; Lag (1991:115) om åtgärder i forsknings- eller behandlingssyfte med befruktade ägg från människa; Lag (1991:116) om ändring i lagen (1980:11) om tillsyn över hälso- och sjukvårdspersonalen m. fl.

SvJT 1993 Protection of the unborn child 483 amendments to the Swedish Secrecy Act 1980.11 I shall present these new elements in Swedish law further on.
    A few words should be said about the Swedish law relating to parents and children. The parental rights and duties are well defined when we talk about born children. There are three main parts of the parents’ rights and duties — custody, guardianship and maintenance, all of which are regulated in Swedish law in the Code on Parents and Children.12 The principles within custody are that both parents have joint custody of the child if they are married or if they report it to the local authorities at the birth of the child. Joint custody is the main rule even after divorce.13 Sole custody occurs only when the parents are unmarried (and do not want to have joint custody) and after custody proceedings.14 Custody as such cannot be described as a parental right, since the court has to act in the best interest of the child in custody proceedings. But the custodian certainly has both rights and duties. It is a duty on the custodian to see to the child’s needs.15 It is a duty and a right for the custodian to decide on questions concerning the child’s personal matters.16 The custodian’s rights and duties remain until the child is 18 years old or until s/he enters a marriage.17 The guardianship follows the custody as a rule and covers the responsibility for the child’s economy.18 This, too, means both duties and rights. It is a duty for the parent as a guardian to administer the child’s economy and to speak for the child in such matters.19 It is, on the other hand, the right of the guardian to decide on economic matters for the child, and he may for example, by giving or witholding his consent to the child, allow or forbid the child to enter certain transactions. The maintenance responsibility must be described as merely a duty — namely to maintain the child economically until the child is 18 or leaves school after that (but not later than at the age of 21).20 Even if custody, guardianship and maintenance are well defined it must be stressed that the rules are given for parents to born children. Written law says nothing about these duties or rights in

 

11 Ds 1990:11, Sekretess inom och mellan myndigheter på vårdområdet; Prop. 1990/91:111 om sekretess inom och mellan myndigheter på vårdområdet m. m.; Lag (1991:426) om ändring i sekretesslagen. 12 Föräldrabalken 1949 (amended). 13 The Swedish Code on Parents and Children, Ch. 6 ss. 3 and 4. 14 Ibid., ss. 3 and 5–10. 15 Ibid., ss. 2 and 1. 16 Ibid., Ch. 6. s. 11. 17 Ibid., Ch. 6 s. 2. 18 Ibid., Ch. 9 and following. 19 Ibid., Ch. 13 s. 1. 20 Ibid., Ch. 7.

484 Per Westman SvJT 1993 relation to unborn children. The question whether parental rights or duties of this kind might be carried out before the birth of the child probably must be answered negatively. Still, parents-to-be of course do have rights — the right do decide to have a child, the woman’s right to decide whether to have an abortion (within the limits of law), the right to decide on treatment during pregnancy, etc. A question which has been discussed is whether a father has any right or even duty to protect the unborn child, for example against the woman’s decision to have an abortion. The issue has not been tried by court in Sweden, and it is likely that a Swedish court would not recognize such a position for the father (the Abortion Act 1974 gives no rights or puts no duties onto the father).21

 

2.2 Artificial procreation
Procreation by artificial insemination is not a new technique, though the use of it has increased much in modern days. Only in recent years has there been legislation on this matter. The legal situation before that may have been to some extent unclear. One question of great importance with regard to the unborn child is who is going to be regarded as its legal father. In the case of donor insemination this question comes into conflict with the interest of the donor to stay anonymous. From Swedish law might be mentioned a case from 1983, in which the Swedish Supreme Court found that the pater est presumption rule could not be upheld when a child was born after artificial insemination with donor sperm.22 The law at that time did not have a rule to establish paternity in such a case. By a new rule in connection with the 1984 Act on Artificial Insemination there has been a significant change to this. The 1984 Act on Artificial Insemination23 was the first legislative step in Sweden in the field of artificial procreation. The act provides that insemination may be carried out legally only if the woman is married or cohabitant. The husband or the cohabitee, respectively, must give his written consent. Thereby he legally becomes the father of the child, either by presumption (if married to the mother) or under the rules on establishing paternity (if not

 

21 The question has been tried by court in England, see infra about English law. 22 NJA (Nytt Juridiskt Arkiv) 1983 p. 320, the so-called Haparanda case. 23 The 1984 Act (Lag 1984:1140 om insemination) was preceded by a Committee Report in 1983 (SOU 1983:42, Barn genom insemination) and a Governmental Bill in 1984 (Prop. 1984/85:2, Barn genom insemination). The Act came into force 1 March, 1985.

SvJT 1993 Protection of the unborn child 485 married to the mother).24 This is the rule both in the case of insemination with sperm from the man in the couple and in the case of insemination by donor (using sperm from another man). The child’s rights are protected as far as the question of knowing one’s origin is concerned. There is a provision that a child, who has been born after artificial insemination, when sufficiently mature has a right to know who was the donor.25 This is an example of a legal step towards protection of the rights of unborn children, even in contradiction to the donor’s interest to maintain anonymous. The question was much discussed before the bill was passed. Some people said the number of donors would decrease if the donors could not be anonymous. This seems to have come true to some extent and for some time.2627 Ethical problems may be connected with another type of artificial procreation, namely in-vitro fertilization (IVF). As a technique IVF finds its use where the woman cannot become pregnant e. g. because of a physical defect on a Fallopian tube or because the man cannot produce enough sperm cells. In order to increase the chances of the zygote (the fertilized egg) to develop into a foetus, a number of eggs from the woman are taken out and artificially fertilized. Only one or a very few of the fertilized eggs are reimplanted into the woman’s body. With today’s technique it is possible to deep-freeze fertilized eggs (zygotes) and keep them for a long time. Technically, such eggs may be implanted after many years. The ethical question is whether this should be allowed in the first place e. g. is it ethically right to reimplant a fertilized egg into the woman when the man is dead? Furthermore, in the second place, is it ethically right to implant the zygote into another woman, and, finally, to use zygotes for medical and genetic research?28 To some extent these questions have been answered from the legal point of view by the Swedish 1988 Act on in-vitro fertilization.29 This Act gives some clarification of legal aspects on fer-

 

24 The 1984 Act on Artificial Insemination s. 2 and The Code on Parents and Children, Ch. 1 s. 6. 25 The 1984 Act, s. 4. 26 Such a decrease is indicated by Saldeen in Agell, A and Saldeen, Å, Faderskap, vårdnad, adoption, 5th ed. Uppsala 1991, p. 88. 27 Cf. the discussion in Morgan and Lee, Human Fertilisation and Embryology Act 1990 pp. 163–165. 28 For other aspects on the use of deep-frozen eggs and zygotes — see infra under 2.3 about the use of genetic technology on Humans etc. 29 Lag (1988:711) om befruktning utanför kroppen. The 1988 Act was based on a Committee Report (SOU 1985:5 Barn genom befruktning utanför kroppen) and a Governmental Bill (prop. 1987/88:160 om befrukning utanför kroppen). The Act came into force 1 January, 1989.

486 Per Westman SvJT 1993 tilization outside the woman’s body. In-vitro fertilization is legally allowed only within a married couple or a cohabitant couple. Further, a written consent from the man in the couple is necessary, and also only the woman’s own eggs must be used, and her husband’s or cohabitee’s sperm-cells. The Act also states that invitro fertilization must be carried out only at public hospitals.30 There is a similar rule on paternity in the case of IVF as for the insemination cases. The law provides that the consenting man is to be regarded as the legal father of the child.31 However, there is no time limit in the IVF Act, after which implantation must not be done. Nor does the Act prohibit implantation after the man’s death.
    To sum up, Swedish law has taken some steps with the above mentioned Acts, but we still lack legislation of other kinds of artificial procreation. Swedish law would, as it stands today, not allow donation of eggs or donation of sperm cells in connection with IVF. Neither would surrogate motherhood be recognized.

 

2.3 Genetic treatment and research
The 1984 governmental report on genetic integrity32 was a first attempt in Sweden to deal with different ethical and legal issues in the field of genetic technology, especially DNA-techniques. The report dealt with both humans and animals, plants and microorganisms. The report did not put forward any legislative proposals, but laid down a number of ethical recommendations. The issue of the use of genetic technology on Humans was brought up again by the Swedish government in a Bill 1990.33 The Bill was enacted in 1991 in three parts, namely an Act on the use of genetic technology at public health controls, an Act on the use of fertilized human eggs for treatment and research and an Act with amendments to the Act on supervision over medical and care staff.34 The Acts came into force on October 1st, 1991. The part of interest with regard to unborn children is the Act on the use of fertilized human eggs for treatment and research. As a background to this Act it should be said that fertilized human eggs may be used for mainly two reasons: 1) treatment of a woman against inability to have children and 2) research (medical, genetic).

 

30 The Swedish IVF Act, ss. 1 and 2. 31 The Swedish Code on Parents and Children, Ch. 1 s. 7. 32 SOU 1984:88, see supra, note 6. 33 Prop. 1990/91:52, see supra, note 9. 34 See supra, note 10.

SvJT 1993 Protection of the unborn child 487 For either of these reasons it is technically possible, and often useful, to store the eggs, deep-frozen.
    From the traveaux preparatoires it may be noticed that the Minister of Health and Social Welfare has said that there should be no different view of looking upon the use of fertilized eggs depending on the different reasons for use.35 The 1991 Act establishes, first, that donors of eggs and sperm-cells must consent to the use of fertilized eggs.36 Interestingly, this new Act establishes time limits, both for the use of zygotes for treatment and research and for the storage of deep-frozen zygotes. Thus, the Act provides that experiments on zygotes (fertilized human eggs) for research or treatment are prohibited later than the 14th day after the fertilization37 and deep-frozen zygotes must not be stored longer than a year, excluding the 14-days time just mentioned.38 These rules provide for a certain amount of protection of the unborn child — the above mentioned risk for implantation of zygotes after a long period, which would lead to an uncertain legal situation for the child, conceived this way, is thereby eliminated. Furthermore, the risks associated with implantation of fertilized eggs into any woman — the donor or another — after experiments is eliminated by the Act — such implantation is prohibited under its provisions.39 However, it must be noticed that the Swedish National Board of Health and Welfare may, for special cases, permit zygotes to be stored for a longer period than one year.40 The provisions are explained in the traveaux preparatoires by the Minister of Health and Social Welfaregiving as an example a woman who suffers from severe illness and therefore cannot have a child within a year. This would be a ground for permission to store her eggs, fertilized by sperm-cells from her partner, during more than a year. Without giving further examples, the Minister has also stated that the consequences may be unsatisfactory even for research if the zygotes must be destroyed after a year.41 Despite this possibility to store deep-frozen zygotes for a long period, which creates a certain risk for misuse, the 1991 Act provides for a more secure situation and better protection for the unborn child or, if one prefers, the embryo.

 

 

35 Prop. 1990/91:52 p. 33. 36 The Swedish 1991 Act on the use of fertilized human eggs for treatment and research, s. 1. 37 Ibid., s. 2. 38 Ibid., s. 3. 39 Ibid., s. 4. 40 Ibid., s. 5. 41 Prop. 1990/91:52, p. 46.

488 Per Westman SvJT 1993 2.4 Protection against harmful influence
The main issue in the field of protection of the embryo or the unborn child against harmful influence concerns the risk of injuries because of the mother’s abuse of alcohol, narcotics or other drugs. This issue will be closely presented in this chapter. There are other questions as well, that may be defined as questions of harmful influence on the embryo and the unborn child. Here, I am thinking of risks for the embryo or the unborn child due to external factors, such as the mother’s working environment and other environmental factors. However,while of great interest this question will not be discussed here.
    Research has shown us that the pregnant woman’s abuse of alcohol, narcotics or other drugs (psychodrugs) may injure the unborn child. Not only is it a question of injuries over a short period, but it is also clear that abuse can injure the child for life. It may lead to life-long physical and mental handicaps. The underlying ethical problem here is whether the unborn child should be looked upon as an individual of its own. If society takes that point of view it should also be prepared to legislate to protect that individual from risks that could occur due to the pregnant woman’s social environment. Such legislative measures would then open the door for possibilities to take legal action on behalf of the unborn. One could argue that a legal rule about protection for the unborn child against this kind of harmful influence gives a right (and perhaps even a duty)to a person who is legally responsible for the child — e. g. the father — to act.42 And, of course, the critical point is when the need for protection of the unborn goes against the will of the mother.
    For example, it is conceivable that there could be a legal rule according to which a representative for the unborn child could obtain a court order, an injunction, to the effect that the mother be prevented from alcohol or narcotic abuse and taken under special care. What is then the standpoint of the law here? Let us first consider the results of a Swedish Law Committee.
    The Swedish Governmental Committee of the Unborn Child has brought forward a report in 1987 on protection of the unborn child,43 in which problems of harmful influence on the unborn child are discussed. This report makes no law proposals in the direction just mentioned. In other words, the Committee did not find that legislation is needed to make possible legal actions on

42 A similar issue was brought before English courts in the case of Paton v. BPAS
Trustees and another, where also the question arose whether an unborn child could be made a ward of court, see infra about English law and note 65. 43 See supra, note 7.

SvJT 1993 Protection of the unborn child 489 behalf of the unborn child. Instead, the Committee made recommendations on better public information about the risks connected with drug abuse during pregnancy and on better health care for pregnant women. Of course, it is true that in order to protect the foetus or unborn child from injuries of this kind society may have to provdide more information to young people and more special care for mothers. But is this enough? Should further consideration be given to legal possibilities of the kind I have just mentioned above? The possible need for legislation and the need for more and better investigations about how local authorities are dealing with situations where children are born with injuries due to the mother’s abuse have been stressed particularly by some of the experts to the Committee, in opposition to the Committee’s suggestions.44 Even though the report has laid down a number of recommendations, there is still no legal way to protect the unborn child in the case of a woman’s drug abuse. There are certain possibilities to take action against the woman, but not on the grounds that there is a risk for the unborn child, rather that the woman takes risks for her own health. The concept of the unborn child being an individual of its own with demands for legal protection has not been accepted by the legislator.
    A woman who abuses alcohol, narcotics etc. may be taken into special care. Particular provisions are to be found in three Acts, the 1980 Care of Young Persons Act,45 the 1988 Act on the Care of Persons who Abuse Alcohol, Narcotics etc.46 and the 1991 Institutional Psychiatric Care Act.47 According to these acts institutional care may be provided even against the will of the person in mind, but not on the indication that there is a risk for injury on an unborn child.
    A special problem is whether a child, once grown up, could take legal action against its mother on the ground that the child was injured by its mother’s drug abuse while still not born. Does the Law of Torts recognize such possibilities? The Swedish Tort Liability Act says that anyone who causes physical injuries to another person by fault (or negligence) is liable to them.48 It is however hardly conceivable that this rule could be used in favour of an unborn

 

44 SOU 1987:11 pp. 90–92. 45 Lag (1980:621) med särskilda bestämmelser om vård av unga. 46 Lag (1988:870) om vård av missbrukare i vissa fall. 47 Lag (1991:1128) om psykiatrisk tvångsvård. 48 See the Swedish 1972 Tort Liability Act, Ch. 2 s. 1.

490 Per Westman SvJT 1993 child. Neither would the responsibilities which the law lays upon the parents as custodians mean liability of this kind.
    Still, the issue of protection for the unborn child against harmful influence has moved forward to some extent. The abovementioned Committee of the Unborn Child has suggested amendments in the Swedish Secrecy Act 1980 in order to make exchange of information between care authorities and care bodies possible if it is needed to protect an unborn person.49 The suggestion was taken up in a governmental law proposal on Secrecy within and between care authorities,50 followed by a governmental Bill 1991, which was enacted the same year.51 The amendment introduces an exception to the right to secrecy which a person has according to the Secrecy Act. The idea seems to be that only in situations where the health of the unborn child is at risk should this possibility be used. The effect is said to be that cooperation between different care bodies, hospitals etc. will be better, which would in its turn help to increase the protection for the unborn. It is, however, doubtful whether more information really is efficient. One might agree that more knowledge in the individual case could make information to the woman more useful, because it is then known when and about what the information should be given. But, as experts to the Committee of the Unborn Child have pointed out,52 it is not certain that only information and better health care for the woman is enough. Indeed, it is not until the law recognizes the unborn child as a legal subject that full protection may be given. And that is not the case yet, neither in Swedish law, nor in other law systems.

 

2.5 Foetal diagnosis and abortions
The issue of abortion is often connected with the issue of foetal diagnosis. In the case of selective (late) abortions the decision about an abortion normally will be taken on the grounds of foetal diagnosis. Before foetal diagnosis and connected late abortions are discussed, however, a few words should be mentioned on abortion in general.
    Swedish abortion law has not been amended during the last years. According to the Swedish Abortion Act 1974,53 an abortion may be carried out on the pregnant woman’s request without

 

49 Suggested amendment in the Swedish Secrecy Act 1980, s. 2, SOU 1987:11 pp. 14 and 89. 50 Ds 1990:11 Sekretess inom och mellan myndigheter på vårdområdet. 51 See supra, note 11. The amendment, as far as this question concerns, has been made by a new provision in Ch. 14 s. 2. It came into force on July 1st, 1991. 52 See supra, note 44. 53 Abortlag (1974:595).

SvJT 1993 Protection of the unborn child 491 restrictions before the end of the 12th week of pregnancy if it can be done without any physical risk to the woman.54 This is the ground for free (early) abortion. Between the 12th week and the end of the 18th week abortion is allowed after an investigation about the woman’s personal circumstances.55 The investigation is rather a matter of form and abortion is normally allowed at this stage. The end of the 18th week is a principal limit in the Act after which abortions are not free, although even after that time an abortion may be carried out. Such late abortions are allowed after permission by the National Board of Health and Welfare in Sweden, but only if the foetus is not capable of surviving outside the woman’s body ;however, an abortion may be carried out where the foetus would be capable of surviving, if there is a medical contraindication, i. e. a risk for the mother’s life.56 For the moment a little more than 100 000 children are born per year in Sweden and about 37 000 abortions are carried out per year. The majority — 90 % — of these are abortions before the end of the 12th week of pregnancy. The number of late abortions is only about 250 per year. Permission for late abortion is granted in about 70 % of the cases.57 The capability of surviving is related to the age of the foetus, and the time limit extends to 23–24 weeks.58 Abortions in Sweden are not allowed after the 22nd week of pregnancy,59 but the time limits are quite close to each other and the future may perhaps present new possibilities to save still younger children.
    Abortion also may be looked upon in the light of modern medicine’s growing possibilities to treat and cure foetuses by using foetal surgery inside the woman’s body before the child is born. The foetus thereby will be seen more and more as an individual in its own right.
    The abortion issue has been discussed in the final report of the Swedish Committee of the Unborn Child.60 The Committee has suggested that the 12-week limit should be abolished (which leaves us with an 18-week limit) and that all women who plan an abortion should be offered psychological therapy.61

 

54 The Swedish Abortion Act 1974 s. 1. 55 Ibid., s. 2. 56 Ibid., ss. 3 and 5. 57 See statistics presented in the Swedish Committeee Report on Foetal Diagnostics and late Abortions (SOU 1989:51, Den gravida kvinnan och fostret — två individer. Om fosterdiagnostik. Om sena aborter) pp. 134–135. 58 See SOU 1989:51, p. 115. 59 Ibid. 60 SOU 1989:51, see supra, note 8. 61 Suggested amendments in the Swedish Abortion Act 1974, s. 1. See SOU 1989:51 p. 17.

492 Per Westman SvJT 1993 Foetal diagnosis may be used for different reasons,62 and I would like to identify three groups of reasons: a) to avoid abortions of foetuses who are not ill or injured, b) to discover methods for treatment of foetuses who otherwise would be ill, and c) to prepare for an abortion if the unborn child is injured. There are different methods for foetal diagnosis, such as ultrasound examination, blood test and amniocentesis. With more modern techniques it is possible to discover a number of diseases and deformities of the foetus and perhaps even to tell the genetic characters of the foetus. The connection between abortions and foetal diagnosis is clear and one could argue that a precondition for foetal diagnosis is that the woman is prepared to have an abortion if the diagnosis would show a disease or deformity of the foetus. Such selective abortions (late abortions) may constitute an ethical dilemma in terms of what reasons we should accept for an abortion. There is, in my mind, no doubt that a medical risk for the woman’s life constitutes a reason for abortion. But what diseases and unusual characters of the child should ethically be reasons for late abortion? Perhaps abortion should be permitted irrespective of the reason? It is not difficult to see that there is an ethical dilemma here — on one side stands the right of parents to decide what child they want and on the other side stands the right to life of the unborn child. Indeed, even children with defects or handicap may well have a good life. One way to solve this conflict might be to decide that only if life would mean a life in pain for the child would a selective (late) abortion be acceptable. But it is not easy to predict the future — this might speak instead for the parents to have the right to decide whether having a handicapped child would mean too heavy a burden for them.
    The law does not yet seem to be prepared to make such ethical choices. Abortion law is based on time limits instead, and of course that is easier to handle. There are no legal rules about foetal diagnosis in Sweden. The Committee of the Unborn Child has made no law proposals in its above mentioned report except for abolishing the 12-week limit for early abortions and an Act on a register for deformities on unborn and born children.63 More interesting is the discussion in the Committee Report which takes as a starting point the ethical view that the mother and the unborn child are

 

62 For a medical background see SOU 1989:51 pp. 23–37 and (for a summary in English) pp. 125–131. 63 Ibid, p. 18, and to the following, pp. 73–122.

SvJT 1993 Protection of the unborn child 493 two different individuals, both with a need for protection. The dilemma arises particularly during the early stage of pregnancy, where the woman sometimes may feel it as a violation of her personal integrity if she is pressed to have the child. This ethical conflict between the right to life (for the unborn child) and the parent’s integrity and right to decide also arises when we look upon the selective abortions but, as we have seen above, then there is also the conflict between all human beings’ equal value and the parents’ possibilities to take care of any child. The Committee has reccommended that it is not in the interest of the foetus to be aborted unless foetal diagnosis clearly shows that it is so severely injured that it will not survive the delivery or will die shortly thereafter. And furthermore, it can never be a right or a duty to have a child without defects. The Committee discusses also the question of consent (to foetal diagnosis and abortion). Tomy mind,itisclearthatthepresentCommitteeReporttouches upon important — and extremely difficult — questions, both for unborn children and for their parents. The legal result of the report is not yet, however, very farreaching.

 

3. English law
3.1 General remarks
After having reviewed Swedish law it is with interest I turn to England. First, England is a leading country in medical research and the development of new technology, e. g. in the field of artificial procreation. I think it is fair to remember that one of the first successful attempts with artificial insemination took place in England around 1790. And the first child who was conceived by IVF was born in England in 1978. Secondly, the common law system may give an interesting contrast to a civil law system, such as the Swedish one. The possibilities to obtain a court order are more farreaching in a common law system, generally. Thirdly, England has seen new legislation in the field of protecting the unborn. It is useful to make some comparison about what happens in terms of legislation between two different legal systems. Regarding the consequences of the differences between a civil law system (Sweden) and a common law system (England) I would like to give as an example the question of the father’s right to act on behalf of the unborn child. Of course a father has a right — and a duty — to act on behalf of his born child. There is a whole system of rules for that and the main lines are very similar in many countries. The consequence is that the father may take action even against the child’s mother (e. g. in custody matters). But, as I have

494 Per Westman SvJT 1993 already touched upon, when we think about unborn children the picture is totally different. The general idea in that case is rather that the father has no possibilities to take action on behalf of the unborn child, and certainly not against the mother’s will.64 In a civil law system like the Swedish this means that it is hardly conceivable that a father could even go to court with any claim of the kind we are now talking about, since Swedish courts virtually always have to turn to written law. In English law, however, the general possibilities to go to court are different and sometimes wider, because of the legal tradition in England which is much more based on case law.
    The issue of the father’s right to take action to protect the unborn child arose in Paton v. British Pregnancy Advisory Service Trustees and another.65 In this case a husband sought an injunction to prevent his wife from having an abortion. The court refused the application and Sir George Baker P. said: ”The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother”.66 Thus, it seems clear that the unborn child had no rights of its own which would be the grounds for the father to act on its behalf. But did then the father have any rights, which he could execute? The English Abortion Act 1967 gives no right to the father to be consulted nor does it require his consent. Accordingly, the father’s application in Paton was refused; he had no such claim.67 A similar case is C v. S68 where an unmarried father sought an injunction to prevent the mother from having an abortion. The father was also refused an injunctionin this case.
    A special aspect of this issue is whether an unborn child could be made a ward of court and thereby protected. Wardship, being an unknown concept to Swedish law and other civil law systems, gives the court the power to decide over the child. So far wardship demands that the child who will be made a ward of court is born alive. But is it possible to extend wardship to unborn children? The cases referred to above suggest that this would not be possible,

 

64 The issue of the mother's right to act on behalf of the unborn child would seem to be of the same kind, but there are important differences. The mother has possibilities to make decisions that are of direct importance for the life of the unborn child, e. g. when we talk about abortion or foetal diagnosis. 65 [1979] Q.B. 276; [1978] 2 All E.R. 987. See also Paton v. United Kingdom (1980) 3 EHRR 408. 66 [1979] Q.B. 276 at p. 279. 67 The Paton case has been commented on in several articles. See Kennedy 42 MLR 324, Phillips 95 LQR 332, Lowe 96 LQR 29, Lyon and Bennett 9 Fam Law 35, Radevsky 130 NLJ 813, Bromley and Lowe Bromley’s Family Law (8th Edn) p. 330 and Lowe and White Wards of Court (2nd Edn) p. 18. 68 [1987] 1 All ER 1230; [1987] 2 WLR 1108, CA.

SvJT 1993 Protection of the unborn child 495 since the courts have found that unborn children had no rights. In a more recent case Re F. (in utero),69 the court came to the decision that it did not have jurisdiction to make an unborn child a ward of court. In a comment on this case, Pickup has argued that wardship should be extended to unborn children (by defining the term ”minor” in the Supreme Court Act 1981 to include an unborn child from a certain stage of development), which would allow local authorities and medical staff to intervene before the damage is done.70 Pickup has stressed also that wardship proceedings can be taken speedily, and this is of course of great importance.71 Lowe and White seem to be prepared to recognize the possibility to extend wardship to the unborn, but they have also argued that there appeared to be no such jurisdiction following Sir George Baker’s reasoning in Paton.72 Lyon and Bennet have argued that wardship should be extended to unborn children.73 If a legal instrument such as wardship could be used for the protection of the unborn, it could be argued that it would also mean possibilities to decide against the mother’s will in different kinds of situations, e. g. in the case that she wants an abortion. But, presumably, this would not be the consequence in the opposite case — where the mother does not want an abortion there could be no legal way whatsoever to force her to it. Wardship could also be a solution to the example given in the beginning of this paper about the pregnant woman, who refuses to have a Caesarian section to save the child.74 Making the still unborn child a ward of court would open the door for legal decisions even against the woman’s will and the surgery could be performed.75 In a slightly wider sense, the question which arose in Paton in C v. S and in Re F. might be defined as a question whether the father has a claim to custody of his unborn child. The answer must still be no — law does not give the father any such rights. A question close to the ones now discussed is whether parents — or even the child itself — may have a claim on the grounds that the child is born severely disabled, if the doctors have not informed about this during the pregnancy.76

 

69 [1988] 2 All E.R. 193. 70 See Z. Pickup, Re F. (in utero): the way forward (1988) Professional Negligence 71 at pp. 73–74, with references also to cases from the USA (New Jersey and Colorado). 71 Loc. cit. 72 Op. cit. pp. 18–19. 73 Loc. cit. See also Phillips, loc. cit. Cf. Radevsky, loc. cit. with a reply by Lowe 131 NLJ 561. 74 See now Re S. (1992) 3 WLR 806. 75 For a contrary view see D. Morgan Judges on Delivery (1988) JSWL 197. 76 See McKay v. Essex area Health Authority, (1982) 1 Q.B. 1166, and J. Fortin, Is the ”Wrongful life” Action Really Dead? (1987) JSWL 306.

496 Per Westman SvJT 1993 3.2 The Human Fertilisation and Embryology Act 1990
As a second, and final, remark on English law I would like to turn to the issue of genetic treatment and research and connected questions. The Human Fertilisation and Embryology Act 1990 (commonly known as the HFE Act) covers several questions of importance for the foetus and the unborn child. The act is based on the Warnock Committee Report 1984.
    The 1990 Act focuses on treatment (to assist women to carry children), storage (of gametes and embryos) and research.77 Activities with regard to creation of embryos in vitro, keeping and using embryos, placing in a woman of live embryos, storing gametes, using sperms and eggs in vitro, mixing gametes etc. are allowed only by a license of the Human Fertilisation and Embryology Authority.78 Like the new Swedish Act on the use of fertilized human eggs, the 1990 English Act gives time-limits for storage of embryos and gametes and also for research. The 1990 Act covers however a wider field than the above-mentioned Swedish Act. It is to be noted that the English 1990 Act also regulates certain infertility treatments.79 The 1990 Act requires that activities must be licensed by the Authority both in the case of the use of donated gametes and in the case of creation of embryos outside the body. This means that artificial insemination by donor stands under license requirement, but not artificial insemination where the husband’s or partner’s sperm is used. And, as regards the creation of embryos, fertilization by placing of eggs and sperm into the woman’s Fallopian tube to fertilize there, does not require a license unless donated gametes are used.80 The 1990 Act also has amended the Abortion Act 1967.81 The consequence of this amendment is that the general time-limit for abortion is now the 24th week of pregnancy, but on certain grounds abortion may be carried out later — without a time limit. This is a surprising and unexpected part of this new legislation, since the most farreaching time-limit up to now in English law relating to abortions has effectively been the 28th week of pregnancy.

 

77 See The Human Fertilisation and Embryology Act 1990, s. 11, in which is declared the scope of licenses for activities under the Act. 78 Ibid. ss. 3, 4 and 5 and Schedule 2. 79 For a discussion of the infertility treatment issue in connection with the Human Fertilisation and Embryology Act 1990, see Douglas (1991) 21 Fam Law 110. 80 Ibid. 81 The 1990 Act s. 37.

SvJT 1993 Protection of the unborn child 497 The 1990 Act also contains a provision about surrogate arrangements, meaning that no such arrangements are enforceable,82 which is said to clarify what had been the existing position.83 What then are the consequences of the 1990 Act for parents and children? As Douglas remarks84 there is the question in infertility treatment; who are the legal parents? The Act provides that if a woman was married at the time of the treatment activity and her husband consented to it, then he shall be treated as the father.85 And the woman who carries the child is to be treated as the mother.86 This goes also for the case of egg-donation.87 Where a person is to be treated as the father or mother of the child, that person is to be so treated for all purposes,88 which means that the child is to be treated as the legal child of that person. Similarly to the Swedish Act on artificial insemination, the English 1990 Act provides that a person, when 18 years old, may apply to the Human Fertilisation and Embryology Authority for information whether he or she was or might have been born in consequence of treatment services, and if so, to have information concerning the genetic parent89 but not as in Swedish law identifying information. This is not the right place to discuss further the consequences of the 1990 Act. However, it is obvious that this very broad legislative work affects the unborn child and its parents in a number of ways.

 

4. Conclusion
The question whether the foetus has legal rights or not is really the issue to be dealt with here. As we have been able to see there has been a legal development towards a recognition of the need of protection for the foetus. Such development may be noticed in the countries which I have dealt with in this article — England and Sweden — and certainly in a number of other countries as well.
    Despite this new development the law has not yet taken the step towards full legal protection of the unborn. The position is still that the foetus is not a legal subject and it has no independent legal rights. It is only when the child is born that it acquires a legal status which gives it legal rights. As Kennedy has remarked, even rules in law that appear to give legal rights to the unborn, such as

 

82 Ibid. s. 36. 83 Douglas op. cit. at p. 114. 84 Ibid. at p. 111. 85 The 1990 Act, s. 28(2). Cf. also the Swedish acts on artificial insemination and IVF. 86 The 1990 Act, s. 27. 87 Note that, differently from Swedish law, English law under the 1990 Act allows donation of eggs. 88 The 1990 Act, s. 29. 89 Ibid. s. 31.

498 Per Westman SvJT 1993 some of the succession rules, do not do so, because they demand that the child be born alive before any rights may occur.90 Thus, the position of the law seems to be quite clear: the unborn are not legal subjects and cannot have legal rights. And, as regards the conflict of interests which is certainly there between the parents and the unborn child, there is no real example, whether in written law or in case law, where the law would resolve that conflict in favour of the unborn child. The parental interests are still the stronger ones, virtually all over this field. In my mind this will not be changed until the law recognizes the unborn child as a legal subject with rights that are enforceable.
    Yet, if we speak of protection instead of rights, we must notice that modern legal development is moving in the direction of giving legal protection to the unborn child, the foetus. The examples I have given in this paper show us that the unborn are better protected now than only a decade ago. The latest issue has been the protective rules for the foetus, that have been enacted recently both in England and in Sweden with regard to treatment, research and storage of fertilized human eggs in connection with new technology. And the provisions in the abortion acts give some protection to the unborn after a certain amount of time.91 Even if we should not perhaps regard these examples as something that has given rights to the unborn, we still can see how the law is moving in this direction.
    Legal debate about the law and the unborn has increased. And I would like to see this as a sign of a general movement towards a more clearly established legal protection and, perhaps, even limited rights for the unborn.

90 42 MLR 324, n. 5. Cf. Sir George Baker P. in Paton [1979] Q.B. 276 at p. 279. See also the Swedish Code on Succession, Ch. 1. s. 1 and Ch. 9 s. 2. 91 The Swedish Insemination Act 1984 and IVF Act 1988 are not really good examples of protective rules in favour of the unborn, because they, as well as succession rules mentioned above, will have no effect for the child before it is born alive.