Scottish Court of Session Decisions

The reclaiming motion called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord McCluskey and Lord Wylie for a hearing.

At advising, on 24 May 1997, the opinion of the court was delivered by the Lord Justice-Clerk (Cullen).

OPINION OF THE COURT—The pursuer in this action seeks to have his estranged wife, the first defender, interdicted ‘from instructing, consenting or submitting to a termination of pregnancy’. He also seeks to interdict the Royal Infirmary of Edinburgh NHS Trust, the second defenders, by its servants or agents from carrying out any termination of that pregnancy. On 21 May 1997 the Lord Ordinary recalled the grant of interim interdict in terms of the conclusions which he had made after a hearing ex parte on 15 May. The pursuer's reclaiming motion against the recall of interim interdict was heard by this court on 23 May, when submissions were made on behalf of the pursuer and the first defender. The second defenders have not entered the process.

Where a court in Scotland requires to consider whether interim interdict should be granted or recalled, the first question is whether the party seeking that order has set forth a prima facie case. If so, the next question is whether the balance of convenience favours the granting of the order or not. The first of these questions does not normally make it necessary for the court to resolve a point on which the outcome of the case depends. However, the present case is unusual in a number of respects: the arguments in regard to interim interdict do not depend on questions of fact which have yet to be answered but upon questions of law which are fundamental to a consideration of the pursuer's case. Further the constraints of time are such that a decision in regard to interim interdict will obviously determine the outcome of the case. If interim interdict is recalled, the first defender will be able to exercise her right to terminate the pregnancy in accordance with the Abortion Act 1967. If interim interdict is to stand, abortion is ruled out and the first defender's pregnancy will take its course.

Before coming to the main arguments which were presented in the reclaiming motion we will refer briefly to the procedure under the Abortion Act 1967. Section 1 of the Act provides: ‘(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; or (b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped …’. It is not in dispute that certificates have been given by two medical practitioners in respect of the termination of the first defender's pregnancy and by reference to para (a) of subsec (1). The pursuer does not seek to challenge these certificates. There was a suggestion before the Lord Ordinary that they had been given on the basis of a false account of the pursuer's past behaviour which the first defender had provided to medical staff of the second defenders. However, at the hearing of the reclaiming motion this matter was not raised again.

Senior counsel for the pursuer submitted that the Act had no direct relevance to the adjudication of civil rights and duties with which the present action was concerned. It merely purported to decriminalise abortion in certain circumstances. There was no suggestion that it went further than that and altered the common law in regard to civil liability for abortion as a wrong. It did not make abortion lawful in the civil law. He added that prior to the Act all abortions were criminal, subject to an ill-defined exception for abortions necessary to preserve the mother's life or health (Gordon, Criminal Law, 2nd edn, para 28–01). We accept counsel's submission as to the limited legal effect of the Act, and we did not understand senior counsel for the defender to contend to the contrary, although in the course of her submissions she emphasised that the underlying purpose of the Act was also to protect pregnant women from the risks which they had been exposed by having recourse to illegal abortions. It is clear that the Act was intended to remove the risk of prosecution, provided that the abortion was carried out in accordance with the limits, and subject to the procedure, laid down by and under the Act. Thus, in terms of sec 5(1), the Act is to be without prejudice to the provisions of the Infant Life (Preservation) Act 1929, which is directed to protecting the life of the viable foetus. A certificate as to the opinion of a medical practitioner requires to be in accordance with regulations made under the Act, currently the Abortion (Scotland) Regulations 1991. To the extent that the Act does not apply, the pre-existing law as to the criminality of the actions of those involved in an abortion still applies. The provisions of the Act are not of themselves determinative of the separate question as to whether the carrying out of an abortion may violate any person's legal rights.

We come now to the main arguments which counsel presented in support of the pursuer's case for interim interdict. In the order in which they were presented they may be broken down into a number of points as follows: (i) An action of damages lay at the instance of a child's guardian, including the father of a legitimate child, in respect of wrongful injury sustained by that child while in utero. (ii) Such an injury was actionable at the instance of the child, acting through his or her guardian, and not at the instance of the mother as an individual. (iii) If such an injury created an actionable wrong, it must be a wrong not merely sounding in damages after the event but also a wrong capable of prevention by interdict in advance of the wrong occurring. (iv) In that connection the wrong which was capable of being interdicted could not be confined to one which was only capable of causing injury to, and not the death of, the child. (v) In regard to what he described as a ‘peripheral issue’, there should be no fiction that injury to a child caused antenatally only occurs in law at the child's birth.

In support of point (i) counsel relied on the well-known fiction by which, for the purposes of testamentary succession, a child in utero is deemed to have been already born. He referred to the exposition of this subject by Lord Macmillan in Elliot v. Joicey at pp 70–71. He also referred to dictain Hamilton v. Fife Health Board, in which it was held that the parents of a child who had died three days after her birth, allegedly as a result of negligent acts on the part of doctors attending the child's mother, were entitled to sue for damages in respect of the loss of her society. A similar approach would be taken to claims by the child himself or herself in respect of injury caused by allegedly negligent acts while he or she was in utero. Such a claim was the subject of B v. Islington Health Authority and de Martell v. Merton & Sutton Health Authority, which were followed by the court in Hamilton v. Fife Health Board .

In support of point (ii) counsel pointed to the fact that under sec 2 of the Children (Scotland) Act 1995 both parents were placed on an equal footing in regard to the representation of the interests of the child. Where the mother had damaged the child the father had the right to sue the mother on the child's behalf. The same would apply where the damage had been done to the foetus.

As regards point (iii) counsel submitted that interdict was available to prevent not only a wrong which was in the course of being done but also an apprehended violation of a party's rights (Burn-Murdoch on Interdict, p 1).

On point (iv) he submitted that the actionability of damage could not differ according to whether it was injury or death that resulted from the wrongful act. More fundamentally, the effect of the wrong could not determine whether or not a person could seek a remedy for the damage, whether threatened or done by that wrong. Thus it could not be a bar to the remedy of interdict that the wrong which was sought to be prevented was likely to have fatal rather than non-fatal but injurious results. In the present case it was no answer to the pursuer's claim that abortion would result in there being no live birth.

As regards point (v) counsel submitted that the reality was that harm occurred when the foetus suffered damage. It did not occur at birth, although it was at birth that as a matter of procedure an action could be raised. This submission ran counter to what was said by Lord McCluskey in Hamilton v. Fife Health Board at p 382F: ‘But once the foetus ceases on birth to be a foetus and becomes a person there is a concurrence of iniuria and damnumand the newly born child has a right to sue the person whose breach of duty has resulted in the child's loss’. At p 389E Lord Caplan said: ‘Certainly damage was done at an earlier stage to the foetus but it is only at birth for the first time one could say "Here is a living being who has sustained personal injuries".’

We should add that counsel made it clear that, while the argument in the present case was concerned with a foetus in the fourth month of pregnancy, the same principle would apply at any stage in the pregnancy.

At this point it may be useful for us to make a number of observations in order to concentrate attention on the core of what is in dispute. Firstly, we have no difficulty in accepting the proposition that the remedy of interdict would be available at the instance of a person or that person's representative to prevent damage being deliberately caused to that person, being damage which, if it occurred, would sound in an award of damages in favour of that person. Secondly if an abortion is an actionable wrong to the foetus as such, we agree that the father would be entitled to take proceedings on behalf of the foetus. However, the critical question is whether the abortion is or can be an actionable wrong.

The decisions on which counsel relied in support of point (i) clearly show that they proceeded on the basis that the child to whom the claim related had been born alive. Thus in Elliot v. Joicey the birth of the child provided the necessary basis for the fiction that he had been born at an earlier stage. Likewise in Hamilton v. Fife Health Board it is clear that the right to claim damages in respect of antenatal injury was dependent on the birth of the child who had been injured. Apart from the passages which we have quoted earlier in this opinion we would add the following words of Lord McCluskey at p 382D–E: ‘There can be no liability to pay damages until there is a person in respect of whose loss the claim to damages arises. An unborn person, a foetus, is not a person in the eyes of the law—at least in relation to the law of civil remedies—and there can be no liability to pay damages to a foetus, even though the foetus has sustained injuries resulting from a negligent act or omission constituting a breach of duty owed". This passage is adverse to the thrust of the pursuer's argument that damage to the foetus as such is actionable while birth has not yet occurred.

In reply senior counsel for the defender submitted that the first defender was not in the course of committing a legal wrong, and that there was no apprehension that she was going to do so. The fatal flaw in the pursuer's argument was that of treating the foetus as a person with rights. In particular there was no law to the effect that the foetus had the right to remain where it was, in the womb. So long as there was an unborn foetus there was no legal persona which was separate from that of the mother; and hence no wrong done to the foetus as such. The foetus was part of its mother's body, in the eyes of the law, in the same way as the placenta and the umbilical cord. It was no doubt in recognition of this that in the criminal law abortion was a distinct crime and was not subsumed in the crime of murder. It followed that while she was pregnant the mother could sue in respect of injury caused by a wrongdoer which led to the foetus being still-born. However, if the injury to the foetus did not prevent a live birth, a claim could then be made on behalf of the child as a separate legal persona. A useful way in which to describe the change which occurred on the birth of the child was to say that the child's rights crystallised at that point.

Counsel referred to a number of decisions in other jurisdictions in which the legal status of the foetus had been considered. While each of these cases arose within its own particular legal context, there are certain observations within the judgments which are of general significance.

In Paton v. British Pregnancy Advisory Service Trustees, Sir George Baker P dismissed a husband's attempt to obtain an injunction against his wife having an abortion. Senior counsel for the pursuer submitted that this case was of little assistance as it turned on the approach in England to the injuncting of criminal actions; and, because the proposed abortion, which was in accordance with the Abortion Act 1967, was treated as being ‘the end of the matter in English law’ (p 281F). Accordingly he submitted that it did not foreclose the question of whether a wrong was about to be committed. In our view this analysis of the decision is incorrect. As regards the injuncting of criminal actions, it is plain from what Sir George Baker P said at p 279C that he did not consider that it was necessary for him to decide the case on that point; and that he did not do so. As regards the significance of the fact that the proposed abortion was in accordance with the Act, it is important to note that Sir George Baker P considered the husband's claim on two distinct bases. The first related to the husband as the representative of the interests of the foetus. The second was concerned with him as the husband of the pregnant woman. It was in regard to the second that he observed that the courts had never exercised jurisdiction to control personal relationships in marriage; and that, in the absence of the right to be consulted under the Act, the husband had no rights enforceable in law or equity to prevent the abortion when it was lawful under the Act. It is in that context that he observed that the husband could not stop what had been accepted to be a lawful abortion. In dealing with the former basis he said, at p 279D: ‘The first question is whether this plaintiff has a right at all. 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. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say in America, Canada, Australia and, I have no doubt, in others.’ It is true that Sir George Baker P did not specifically refer to the law of tort, but it is plain that his words were wide enough to comprehend it. At this point it is appropriate to note that in the present case the pursuer's claim is based exclusively on his right to represent the interests of the foetus in order to prevent an apprehended wrong being done to it.

In C v. S the Court of Appeal affirmed a decision of Heilbron J dismissing an application by a putative father on his own behalf and on behalf of the foetus for injunction to prevent an abortion on the ground that the foetus was a ‘child capable of being born alive’. We note that at p 140E Heilbron J observed that the authorities showed that a child after being born and only then in certain circumstances, based on the child having a legal right ‘may be a party to an action brought with regard to such matters as the right to take, on a will or intestacy, or for damages for injuries suffered before birth. In other words, the claim crystallises upon the birth, at which date, but not before, the child attains the status of a legal persona, and thereupon can then exercise that legal right’.

Counsel also drew attention to the fact that in Re F (In Utero)in which an application for making an unborn child a ward of court was refused. May LJ expressed (at p 533E) his agreement with what had been said by Sir George Baker P in Paton and by Heilbron J in C v. S in regard to the status of the unborn child.

We were referred to a number of Canadian decisions. In Medhurst v. Medhurst the Ontario High Court of Justice rescinded an injunction which the father of an unborn child had obtained against his wife, her physician and a hospital preventing them from performing or undergoing an abortion. In his judgment Reid J considered the status of a father both as the representative of the unborn child and as the husband of the pregnant woman. So far as the first is concerned, we note that at pp 255–256 he quoted with approval the following passage from Dehler v. Ottawa Civic Hospital in which Robins J said at p 695: ‘What then is the legal position of an unborn child? Is it regarded in the eyes of the law as a person in the full legal sense? Does it have the capacity in law to prosecute an action sounding in tort or to sue for injunctive relief? The short answer to the latter questions is "No". While there can be no doubt that the law has long recognised foetal life and has accorded the foetus various rights, those rights have always been held contingent upon a legal personality being acquired by the foetus upon its subsequent birth alive and, until then, a foetus is not recognised as included within the legal concept of "persons". It is only persons recognised by law who are the subject of legal rights and duties … the law does not regard an unborn child as an independent legal entity prior to birth, it is not recognised as having the rights the plaintiff asserts on its behalf or the status to maintain an action.’

In Borowski v. Att Gen for Canada the Saskatchewan Court of Appeal decided that an unborn foetus was not a person within the meaning of the law and was not within the scope of the term ‘everyone’ in sec 7 of the Canadian Charter of Rights and Freedoms. The judgment of the court, which was delivered by Gerwing JA, includes a discussion of the treatment of the foetus in the civil law which concluded (at p 744) that there were no cases in Anglo-Canadian law giving the foetus a status qua foetus. In dealing with the treatment of the foetus outside Anglo-Canadian law, the judgment included at pp 744–746 a reference to the majority opinion of the United States Supreme Court in Roe v. Wade . After pointing out that the perfection of the interests of a child had generally been contingent upon live birth, it concluded with the words: ‘In short, the unborn have never been recognised in the law as persons in the whole sense’.

Lastly in Tremblay v. Daigle the Supreme Court of Canada allowed an appeal against an interlocutory injunction restraining a mother from having an abortion, holding that there were no substantive rights upon which the injunction could be founded. The discussion in the judgment of the court is primarily concerned with the interpretation of the Quebec Charter of Human Rights and Freedoms and the Civil Code of Lower Canada. The court rejected the argument that because various articles of the Code protected the economic interests of a foetus they also impliedly recognised that a foetus was a juridical person. Their conclusion at p 658 was that the articles did not generally recognise that a foetus was a juridical person. ‘A foetus is treated as a person only where it is necessary to do so in order to protect its interests after it is born.’

The question for this court is a question of law and not a question of policy. As Sir George Baker P observed in Paton:‘My task is to apply the law free of emotion or predilection’ (p 278). None of the decisions to which we were referred appear to us to provide support for the view that a foetus has a legal persona, or is otherwise recognised as capable of being vested in personal rights for the protection of which the remedy of interdict may be invoked. Senior counsel for the pursuer submitted that none of the decisions in jurisdictions outside Scotland had answered the question—If it was legally wrong to damage the foetus, why was it not capable of being interdicted as a wrong? However, that question itself begs a further question, namely, given that a claim can be made by or on behalf of a child who has been born in respect of an injury caused by what was done before his or her birth, does it follow that injury to the foetus as such is actionable before the birth? In our opinion it does not and our answer to that question appears to be supported by the general approach which has been followed in Scotland and in other jurisdictions. Whether it is an actionable wrong to the unborn foetus for an abortion to be terminated depends essentially on whether Scots law confers on the foetus a right to continue to exist in the mother's womb. Our conclusion is that Scots law recognises no such right on the foetus. It follows that no person can invoke the power of the court to vindicate such a right.

While it is sufficient for us to reach a conclusion as to the law, there are a number of considerations which, while they form no part of the reasons for our conclusion, tend to support the maintaining of the law as it is. It is sufficient to refer to two of them.

Firstly, to recognise the right of the foetus to continue in the womb would inevitably create a conflict with the policy of the Act to enable women to exercise their right to terminate the pregnancy in accordance with its terms. We note that the case of Paton was the subject of an application to the European Commission of Human Rights which declared that the application was inadmissible. In the report of their decision (Paton v. United Kingdom ) the Commission rejected the proposition that art 2 of the Convention recognised an absolute ‘right to life’ of the foetus. At para 19 they observed that this would involve a serious risk to the life of the pregnant woman. ‘This would mean that the "unborn life" of the foetus would be regarded as being of a higher value than the life of the pregnant woman’. In Re F (In Utero)May LJ at p 533 observed that to apply the principle that the interest of the child was to be predominant was bound to create conflict between the existing legal interests of the mother and those of the unborn child; that the enforcement of the wardship order against the mother would pose insuperable difficulties.

Secondly if the foetus had the right to its own protection which could be vindicated on its behalf by interdict there would be no reason why it should be confined to cases of abortion. If such a right existed it could be used as the basis for a father taking legal action with a view to restraining the mother from some form of activity which was claimed to be harmful to the foetus—such as smoking, and certain sports and occupations. There is plainly room for conflicting views as to what would be adverse to the interests of the foetus.

In these circumstances we are of opinion that the legal proposition on which the pursuer's case for interdict is based is without foundation. Accordingly we consider that the pursuer has not set out a prima facie case. The parties said little about the balance of convenience, no doubt because it was recognised that it was not a concept that was apposite in the present circumstances. In particular we were not addressed by senior counsel for the pursuer on its application should the pursuer's position on the fundamental legal point be correct. In the circumstances we express no opinion in regard to that matter.

In these circumstances the reclaiming motion will be refused.