Page 3, 29th April 1983

29th April 1983
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Page 3, 29th April 1983 — Life before birth fatal gaps that undermine the law

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Life before birth fatal gaps that undermine the law

New techniques in medicine threaten life immediately after conception, Christopher Howse reports.

THE WARNOCK committee appointed by the Government is now receiving submissions on the ethics of new medical techniques concerning human reproduction.

The Abortion Act already allows the destruction in some circumstances of the living foetus in the womb. But testtube fertilisation has the indirect effect of destroying fertilised ova. Some kinds of birth control, including the 'morningafter' pill and IUD, also destroy fertilised ova before they are implanted.

The moral implications of medicine's expanding range of power over human fertility arc reduced to their fundamentals in a series of letters over the last few weeks in The Times.

They come from experts in law, medicine and philosophy, some of whom happen to be Catholics. Their starling point is an objection by Mr John Finnis, a Reader in Law at Oxford University and a well-known supporter of the pro-life lobby, against a legal opinion that the post-coital or "morning after" pill should be 'judged by courts as a form of contraception, rather than abortion, up to the time of implantation.

The man who was originally reported as giving that opinion was Mr Ian Kennedy, of the law faculty at London's King's College, who is best known for his television series on medical ethics.

Mr Finnis responded by saying "The author of the opinion is said to believe that a 'fertilised egg' is not a child before implantation, but becomes a child upon implantation. Such a belief would be as foreign to common speech as to science or reason."

The absurdity of the position, Mr Finnis notes, is shown by the assumption that it is possible to have contraception after conception. Al the same time test-tube baby practitioners talk of "human conception in vitro".

The legal position was truthfully stated, he says, by Glanville Williams in 1958:—

that interference with pregnancy, however early is criminal, unless for therapeutic reasons. "The foetus is a human life to be protected by the criminal law from the moment when the ovum is fertilised," Williams said.

By 1978, Williams had changed his view by saying: "No one who uses or fits intra-uterine devices supposes that they are illegal." These devices are known to prevent implantation of fertilised ova.

Mr Kennedy retorted by saying that pregnancy entails implantation. He denies that the question is whether there is contraception.

The question is whether there is an abortion; and "for an abortion the law requires a pregnancy, not conception."

Mr Kennedy sees Williams's change of opinion as a reflection "that the law may change, as social attitudes and practices change."

Professor Glanville Williams himself explained the position by saying that "the precise time from which the developing ovum is protected by law, had not been (in 1956) and still has not been legislatively or judicially determined."

Statute law forbids "using means with intent to procure a miscarriage". Professor

Williams traces current suggestions for reinterpreting the term miscarriage to "the report of an advisory group

established by the British Council of Churches in 1962, which suggested that for legal purposes conception should be taken to commence with the implantation of the blastocyst in the womb, ie about two weeks after fertilisation."

Professor Williams asks if a fertilised ovum is a human being in any sense more than an acorn is a "quercine being".

He feels that the extreme antiabortion case has been based on theological speculation concerning the entry of the soul. He sees difficulties when the fertilised ovum splits into identical twins or even quins. When did the souls enter?

Mr Finnis's refusal to distinguish between the union of human gametes to create a zygote and an implanted embryo was supported the next day in a letter from Sir Anthony AIment.

"Legal authors of the past dealt with abortion at common law in terms of the medical knowledge of their day," wrote Mr Gerard Wright, a barrister.

"We know," Mr Wright continues, "that quickening is a physical sensation experienced by a mother when, for the first time, she feels life within her. In fact she has had life within her since the moment of conception, for it is an indisputable biological fact that human life begins at fertilisation."

He concludes "The common law of England protects the living but unimplanted conceptus and renders the use of the post-coital pill criminal."

Dr Margaret White, a magistrate, on the same day asked: "If there is no human life before implantation, why does he (Mr Kennedy) use the expression test-tube baby? Likewise, what do infertile women receive when they pay

for in-vitro fertilisation?"

The Master of the Guild of Catholic Doctors, Dr Seymour • Spencer wrote: "For me and my colleagues 'ensoulment means not some weird anatomical incorporation, but the recognition by God, as attested in scripture and tradition, of each man's infinite worth."

Professor John Scarisbrick, chairman of Life, summarised the correspondence when he wrote in The Times on Tuesday: "Fertilisation is the only event of which one can say 'that is when I began being mc — and I have been me, a human being, ever since'.

"The law," Professor Scarisbrick concludes, "should provide just protection before as well as after the incident of implantation. The alternative is to abandon just ice and democracy, as well as to fly in the face of modern science."

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