Page 4, 6th July 1979

6th July 1979
Page 4
Page 4, 6th July 1979 — Meaning of words 'capable of being born alive'

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Meaning of words 'capable of being born alive'

I would be grateful if I may make one or tWo points on behalf of the Association of Lawyers for the Defence of the Unborn with reference to your recent article on the law relating to abortion, and the comments which have appeared on this in correspondence.

There is nothing in any decided case to indicate that the words "capable of being born alive" in the Infant Life (Preservation) Act 1929 would be taken at anything other than their face value in legal proceedings against a doctor who caused the death of a child capable of being born alive.

The life expectation of the victim is no defence in any criminal proceedings for murder, and there would appear to be no grounds for assuming that viability would be a pre-condition of any proceedings for causing the death el a foetus capable of being born alive. Most foetuses reach the point where they are capable of being born alive between 10 and 12 weeks

r from conception. and an abortion


, ter that date would in the words of , . the Act be the crime of child ' destruction. In response to a query from my association to the Director of Public Prosecutions as to why more prosecutions were not brought under the 1929 Act, his reply was that very few cases had been referred to him.

I understand that it is normal in certain abortion clinics for urea to be added to the drugs used to induce an abortion with a view to making sure that a poison is added is quite clear evidence that the doctor believed that the child was capable of being born alive, as otherwise their would be no need to poison the foetus. Such cases, therefore, virtually admit that the doctor believes he is commiting the crime of child destruction.

So far as the recent cases of children being born alive and subsequently dying following abortion operations are concerned, the crime committed here is neither abortion nor child destruction, but murder. Any person who dies after birth as a result of damage done to that person in the womb has been murdered. It would be no defence to a prosecution for murder to show that every effort was made by the hospital to preserve the life of the child.

It is the view of this association, which comprises more than 300 lawyers, that from the evidence available to us at present there is little doubt that the great majority of abortions are illegal, for the simple reason that they are done on demand. In other words the doctor has not genuinely applied his mind to the question of whether he is reducing the risk to the health of the mother, but has simply recommended the abortion because the woman asked for it.

One successful case has been brought on this, but there is no doubt that many thousands more could be brought if people were willing to come forward and provide the evidence.

Without such co-operation the obstacles in the way of successful prosecutions being brought, even by the police, are formidable. That does not make the abortions legal.

As to the suggestion in one letter that the words "capable of being born alive" were intended to mean "viable" it is settled law laid down in many cases that the intention and the meaning of a statute is to be sought in the words used, which must if they are plain and unambiguous be applied as they stand, however strongly it may be alleged that the result does not represent the real intention of Parliament.

It remains the law that in the case of a pregnancy of less than 28 weeks' duration the burden rests upon the prosecution to prove that the child was capable of being born alive. This statutory rule can only be changed by statute, and not by a departmental decision. However, there appears to be good grounds for hoping that amending legislation may soon be on the Statute Book.

Michael Bell Chairman, Association of Lawyers for the Defence of the Unborn. Bournemouth.

In connection with recent correspondence, in "putting the abortion house in order" (June 15) perhaps readers on both sides would be interested in some facts relating to the history of the Church's attitude on this issue.

Many of the early fathers based their teaching upon the theories of Aristotle, who held that the foetus becomes human after 40 days for a boy, 80 days for a girl.

St Thomas Aquinas taught that the soul "was only created after the embryo passed through a vegative and sentient stage in' its development" and opposed the practice of baptism in the womb, saying "as long -as it exists in the womb of the mother, it cannot be subject to the operation of the Church'," as it is not known to men."

Peter Lombard, Bishop of Paris, wrote: "The soul is created and infused after the body has already been formed," and St Jerome: "Man does not know when the rational soul is given by God."

Some of the early fathers were of the opinion that the foetus was ensouled from the moment of conception and included St John Chrysostom Tertullian and St Basil. St Anselm, however, wrote: "It is inadmissible that the infant should receive a rational soul from the moment of conception." St Augustine wrote: "The great question about the soul is not hastily decided by unargued and rash judgment. The law does not provide that (abortion) pertains to homicide, for there cannot yet be said to be a live soul in a body that lacks sensation, when it is not formed and so not yet endowed with sense."

It appears that throughout history the Church has leaned towards the theory of delayed rational ensoulment. Pope Innocent III held that abortion was not irregular if the foetus was not "animated".

This was adopted by Gregory IX, and only for three years in 1588 was abortion forbidden by Sixtus V. The earlier ruling was reverted to by Gregory XIV.

St Alphonsus Ligouri taught that abortion was allowable to save the life or the health of the mother.

It was only in 1869 that Pope Pius IX forbade abortion for any reason. Many Catholic theologians today debate these issues, and it is certain that there has never been unaminity within the church.

To quote Richard A. McCormick, SJ, in "America" (June 1965): "The Church has very wisely never decided the matter definitively; indeed it is perhaps questionable if this is within her competence," E. Fuller St Leonards-on-Sea, Sussex, Despite the fact that 11 branches of NALGO sponsored a motion calling upon the union to take a neutral stand on abortion and to disaffiliate from the National Abortion Campaign, the motion was not debated at the union's annual conference in Blackpool last month.

The reason for the motion not being debated is that the conference agenda committee placed the item so low on the agenda that there was little chance of it being reached before conference was due to end. An attempt by some delegates to have the motion brought forward in the agenda was heavily defeated. The motion now stands referred to the union's national executive council, who are certain to reject its demands.

As a result of this item not being debated, conference delegates who wish to see the disaffiliation of NALGO from the National Abortion Campaign have decided to call a meeting in order to start a campaign directed towards this end. The meeting has provisionally been arranged to take place in Coventry on Saturday, November 3.

I should like all NALGO members interested in this campaign to contact me by writing to my home address at 246 Cattle), Road, Coventry, CV5

6AP, following which a letter will, in due course, be sent setting out the arrangements for the meeting.

John Carmody Coventry.

Those of us concerned with the fight against abortion welcome Mr John Corrie's courage in putting forward an amending Bill, and his affirmation on television that life begins at conception. We are glad that he proposes to Like steps to rectify the appalling situation where late abortions result in live births, by reducing the time-limit for abortion.

Vs.0 hope that. in view of the proven inadequacy of administrative recommendations, he will introduce a statutory requirement to use resuscitation equipment on any live birth induced to save the mother's life, or for any other reason.

In the past, abortion amendment Bills have proposed reduction of the time-limit for abortion while still allowing later terminations of babies who might be handicapped.

While we have supported previous Hills, and will continue to support improvements to the Abortion Act, we feel that to allow this exception is conceding too much, for the following reasons, Handicapped babies who are aborted late in pregnancy may cry and show signs of life, just as "normal" ones do. Is this any the less scandalous a situation because the victim is less than "perfect" by eugenic standards?

Even the pro-abortion Lane Committee explicitly recommended against making an exception for handicap. and recent evidence shows prenatal diagnosis to be unsafe for mother and baby. and unreliable.

Abortions would still be obtainable for handicap even if a blanket timelimit were imposed, but the blanket reduction would prevent the real danger of entrenching late abortion. It is quite possible that if an exception were made for handicap, unscrupulous practitioners would use this as a rubber stamp for any late abortion, for any reason.

A late exception for handicap makes the handicapped unborn child doubly disposable — for the Act already contains a handicap clause. Public prejudice is reinforced against the handicapped, and research is going on to diagnose more and more handicaps prenatally in order to abort. Some of these are quite mild and surgically correctable. like cleft palate.

We have just had Mental Handicap Week. We ask Mr Corrie, on behalf of the people whom Society calls "handicapped", to make a positive gesture and give us an assurance that his Bill will propose a blanket reduction of the time-limit for abortion.

Then Woman for Life will not merely support it. but support it with joy.

Yours sincerely, Debby Sanders Secretary, Women for Life. London SE20

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