Appendix C - Legal Developments


  1. C.1 In Appendix B, the commission described some of the major ethical views about abortion. As part of that exercise, we considered how some prominent commentators have characterised the relationship between a pregnant woman and a fetus. In this part we consider how some senior members of the judiciary have characterised that relationship when it has arisen for determination in different legal contexts. A preliminary issue that emerges when undertaking this task is to consider the legal status of a fetus.

Legal Status of a Fetus

  1. C.2 The legal status of a fetus has been considered by courts on several occasions in a variety of contexts. The nature of the task of characterising the fetus for legal purposes was explained by the Supreme Court of Canada when it considered whether a fetus was a ‘human being’ for the purposes of the Quebec Charter of Human Rights and Freedoms:

[M]etaphysical arguments may be relevant but they are not the primary focus of inquiry. Nor are scientific arguments about the biological status of a foetus determinative in our inquiry. The task of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the recognition of rights and duties—a matter which falls outside the concerns of scientific classification.1

  1. C.3 The law has found it impossible, in numerous different contexts, to recognise a fetus as an entity with interests which are both separate and separable from those of a pregnant woman. In a few areas the common law has acknowledged that a fetus has an interest that merits legal attention, but in those cases the courts made it clear that legal rights do not accrue until birth. These cases have arisen in contexts where there has been no question of separate interests and where the decision reached by the courts has been supported by the pregnant woman in question.
  2. C.4 Recent legislation, at both Commonwealth and state levels, has acknowledged fetal existence by regulating what may be done to embryos in various scientific contexts. This legislation regulates what may be done to an embryo in a laboratory rather than within a woman’s uterus.

Legal Personhood Commences at Birth

  1. C.5 The common law has always taken the view that legal personhood—possession of the legal rights and protections held by all people—does not arise until a fetus becomes a person by being ‘born alive’. A fetus cannot be the victim of any form of homicide.2Over 50 years ago Justice Barry observed in a murder trial that, ‘legally a person is not in being until he or she is fully born in a living state’ and this occurs ’when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs’.3 This rule was recently confirmed by the NSW Court of Criminal Appeal in R v Iby when Chief Justice Spigelman stated that ‘the common law “born alive” rule is satisfied by any indicia of independent life’.4 This rule is discussed in detail in Chapter 7.
  2. C.6 This approach has been confirmed in different contexts, including in the abortion case of Attorney General (QLD) (Ex rel Kerr) v T, where Justice Gibbs stated ‘a fetus has no rights of its own until it is born and has a separate existence from its mother’.5 Justice Gillard pointed out in a recent case: ‘Legal personality begins at birth and ends with death’.6

Common Law Fictions

  1. C.7 The common law has demonstrated its usual pragmatism by devising fictions to create limited exceptions to the general rule that only a person born alive can have interests protected by law. The fictions have been used in circumstances where the application of this general rule would produce an unjust result and the outcome has been supported by the woman in question.
  2. C.8 Two clear examples of the fiction arise for injuries sustained by a fetus during pregnancy as a result of negligent conduct by a third party, and the entitlement of a fetus to acquire a contingent interest in property under a will or trust. In both instances the realisation of the fetal interest is dependent upon live birth.
  3. C.9 Since the Full Court of the Victorian Supreme Court’s decision in Watt v Rama, it has been clear that a person who sustained injury while still a fetus, as a result of the negligent act of a third person, has a good cause of action, upon birth, against the wrongdoer. This is despite the plaintiff not being a person and not having legal rights when the injury actually occurred.7 The majority of judges held that even though the plaintiff could not acquire any legal rights or suffer any compensable damage until birth, she had a ‘contingent interest’ not to be injured by the negligence of another person, which could ripen or crystallise at the time of birth. This fiction permitted the plaintiff in that case to recover damages for the severe injuries she sustained, while still a fetus, when her mother was involved in a car accident. The common law principles that were identified and applied in that case have been followed by other Australian intermediate appellate courts8 and were approved by the High Court in 2006.9
  4. C.10 The same fiction has been applied when dealing with the entitlement of a fetus to acquire an interest in property under a will or trust.10 In a recent Victorian case, Yunghanns v Candoora No 19 Pty Ltd, Justice Gillard held that a man could take action, on behalf of his unborn child and with the support of his pregnant wife,11 to prevent the distribution of assets held in trust for the benefit of all his children.12

Statutory Provisions

  1. C.11 Some Victorian and Commonwealth statutes recognise the existence of embryos and regulate what may be done to them in the contexts of assisted reproduction, scientific research, and human cloning. The regulation of embryos by these statutes arises when an embryo has a separate existence outside of a woman’s uterus.
  2. C.12 The two major Commonwealth statutes are the Research Involving Human Embryos Act 2002 (Cth) and the Prohibition of Human Cloning for Reproduction Act 2002 (Cth). The first Act prohibits the creation of a human embryo for a purpose other than achieving pregnancy. It also regulates the use of ‘excess’ human embryos created by assisted reproductive technology. Research involving embryos is prohibited unless a scientific body obtains a licence to undertake the limited research permitted by the legislation. As its title implies, the Prohibition of Human Cloning for Reproduction Act prohibits the cloning of human beings. The Victorian Infertility Treatment Act 1995 contains mirror provisions because the Commonwealth lacks the constitutional power to regulate these activities throughout the entire community.13
  3. C.13 There is one provision in the Victorian legislation that deals with embryos in utero. Section 38K prohibits collecting a viable human embryo from the body of a woman. There is a similar offence in Commonwealth law.14 The aim of this provision is to prevent the harvesting of embryos from a woman for experimental purposes or for placement in another woman.15

Relationship between a Pregnant woman and a Fetus

  1. C.14 On occasions, the courts have sought to describe the relationship between a pregnant woman and a fetus when the issue has arisen in different contexts. Not surprisingly, there has been no consistency of view. There appears to have been a recent evolution of thinking, as the courts have been called upon to consider the issue more commonly than in the past.
  2. C.15 Courts have sought to deal with the issue of the relationship between a pregnant woman and a fetus in a criminal law context when an assault upon a pregnant woman has caused injury to, or destruction of, a fetus. In some instances the fiction of deeming the physical element of the offence to have occurred at birth, when a child is born with injuries acquired as a result of an assault upon its mother before birth, has been used to ensure that the assailant is culpable. In others, the fiction has not been able to be usefully employed.16
  3. C.16 In the course of some of these criminal cases, judges have sought to describe the relationship between a pregnant woman and a fetus. In Attorney-General’s Reference (No 3 of 1994) Lord Mustill described the relationships as one of ‘bond, not identity’.17 He went on to suggest that a fetus was neither a person nor an adjunct of the mother but ‘[t]he mother and the foetus were two distinct organisms living symbiotically’.18 According to Lord Musthill, a fetus is ‘a unique organism’ and ‘[t]o apply to such an organism the principles of a law evolved in relation to autonomous beings is bound to mislead’.19
  4. C.17 In R v King,20 the NSW Court of Criminal Appeal considered whether an attack upon a pregnant woman by the father of the unborn child, which was designed to terminate the pregnancy, and resulted in the stillbirth of the fetus, could amount to grievous bodily harm to the woman. After referring to judicial statements which suggested that a fetus was, for various purposes, part of its mother, Chief Justice Spigelman stated:

I find this approach compelling for the law of assault and in particular for the forms of aggravated assault requiring as an element of the offence actual bodily harm, grievous bodily harm or wounding. The close physical bond between the mother and the foetus is of such a character that, for the purposes of offences such as this, the foetus should be regarded as part of the mother …

Where such enhanced injury is inflicted on a foetus only, I can see no reason why the aggravated form of offence should depend on whether the foetus is born alive. The purpose of the law is best served by acknowledging that, relevantly, the foetus is part of the mother.21

  1. C.18 The Canadian Supreme Court reached a similar conclusion in R v Sullivan.22 That case involved criminal charges against two midwives who had allegedly been negligent when assisting at a home birth which resulted in the stillbirth of the fetus. The midwives were charged with negligently causing death to another person and negligently causing grievous bodily harm to another person. The Supreme Court held that the death charge could not be maintained because a fetus was not a person; however, it held that the death of the fetus could constitute grievous bodily harm to the pregnant woman because of her connectedness with the fetus.
  2. C.19 During the 1990s a number of so-called forced caesarean cases were decided by British courts.23 In all of these cases court orders were sought because pregnant women refused to give birth by caesarean section against medical advice. In all of these cases it was held that a woman could not be forced to have a caesarean. When reaching these decisions the courts considered the relationship between a pregnant woman and a fetus.
  3. C.20 In In Re MB24 the Court of Appeal held:

[A] competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though, as we have already stated, the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation. The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.25

  1. C.21 The relationship between a pregnant woman and a fetus arose for consideration in broadly similar circumstances in St George’s Healthcare NHS Trust v S.26 The English Court of Appeal was asked to consider whether a woman who was 36 weeks pregnant could be forced to undergo a caesarean section because her own health, as well as the life of her fetus, was endangered by her refusal of medical treatment.27 The Court of Appeal stated:

[I]n our judgment while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment. Although human, and protected by the law in a number of different ways set out in the judgment in In re MB (An Adult: Medical Treatment) [1997] 2 FCR 541, an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant. The declaration in this case involved the removal of the baby from within the body of her mother under physical compulsion. Unless lawfully justified this constituted an infringement of the mother’s autonomy. Of themselves the perceived needs of the foetus did not provide the necessary justification.28

  1. C.22 The interconnectedness of the maternal–fetal relationship was also emphasised by the Canadian Supreme Court in a case regarding glue sniffing by the pregnant woman.29 The majority of the Canadian Supreme Court stated:

[T]o permit an unborn child to sue its pregnant mother-to-be would introduce a radically new conception into the law; the unborn child and its mother as separate juristic persons in a mutually separable and antagonistic relation. Such a legal conception, moreover, is belied by the reality of the physical situation; for practical purposes, the unborn child and its mother-to-be are bonded in a union separable only by birth.30

New Approaches

  1. C.23 Traditionally, some commentators characterised abortion as an instance of maternal–fetal conflict because a pregnant woman and her fetus were seen as having separate interests, which could form the basis of that conflict.31 Recent judicial statements and theoretical writings have suggested that this characterisation may not be useful or accurate.32
  2. C.24 Some legal scholars and courts have recently explored a different approach. This focuses upon the interconnectedness of the relationship between the woman and the fetus, rather than upon maternal–fetal conflict. For example, Seymour has proposed an approach which ‘seeks to combine a recognition of the potentiality of the fetus with an acknowledgment that the woman and her fetus are indivisibly linked’.33 He describes this as the ‘not-one-but-not-two’ model.
  3. C.25 On this view, the fetus does not have a uniform value or character in the eyes of the law. The law makes choices about the situations in which it will take account of actual or threatened antenatal harm.34 Seymour argues that sensitivity to the not-one-but-two relationship better allows for ‘discriminating answers to questions as to when the law should intervene to protect a fetus’.35
  4. C.26 He uses the examples of assault upon a pregnant woman and abortion to illustrate this, arguing that the issues to be considered are fundamentally different because the context of the relationship is different when a woman chooses to have an abortion.36 Seymour concludes that acceptance of the State punishing a person who assaults a pregnant woman causing harm to a fetus ‘does not mean that the state should punish a person who performs an abortion with the woman’s consent’.37






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