‘Fetal Infants’: At the Edge of Life?

Chapter 4
‘Fetal Infants’: At the Edge of Life?

Margot Brazier and John Harris*


Birth, like love, changes everything: a woman who, a few hours before, retained exclusive control of her body and thus the fate of the fetus she carried, is now a mother with parental responsibility for her newborn. In many cases, though not all, a man who until the moment of birth was for legal purposes nigh on irrelevant becomes a father,1 and acquires at least the chance to influence decisions about the baby’s fate. Above all, in theory at least, the entity that as a fetus lacked legal personality is now a legal person to be protected in her own right, with, it is often argued, the same claims as her older brother or her parents. A ‘bright line’ is said to divide the fetus and the baby.2 Amazing advances in neonatal medicine now enable more and more extremely premature babies to be resuscitated and kept alive to the joy of their lucky parents. Sadly, not all infants and parents are lucky and the infant survives for a short time but never goes home from the hospital, or lives, but is affected by severe disabilities. Parents and professionals have heartbreaking decisions to make about how far and how long they should struggle to prolong life. These human tragedies pose a host of legal and ethical dilemmas, three of which are addressed in this chapter: (1) How can we, and should we, make such a legal distinction between the fetus in the womb and the tiny neonate who makes it to birth? (2) Do we, and ought we to, assess the fate of the neonate exactly as we would make judgments about the care of her older sibling struck down by illness or injury? Is the ‘bright line’ between fetus and baby as radiant as it is claimed to be?3 (3) As technology advances and science develops novel means to nurture the fetus, and perhaps even new understandings of what it is to be ‘human’ develop, may that ‘bright line’ fade into history?

Learning from Sheila McLean

It is impossible to choose a dilemma in medical law and ethics in relation to which one would not learn from Sheila McLean. The scope of her work in her amazing array of books and countless articles encompasses a vast canvass. She is no narrow specialist and on matters from birth to death she has made such a rich contribution to debates on law and medicine. Two factors guided our choice of the dilemma of the ‘fetal infant’4 in our tribute to her. After a gap of many years, the first author read again one of Sheila’s seminal papers5 in which she sought to find a compromise between the apparently implacable opponents in the debates about fetal status and abortion, debates in which the two current authors find ourselves opposed in the context of moral argument. Our ‘war’ offers us no joy and so we find in Sheila’s paper a proposal that offers the tantalising prospect of a compromise which, as Sheila puts it, may not ‘command the moral high ground’ but might be ‘a potentially practical step forward’.6 Starting from Sheila’s paper, we admit we have strayed into more general territory in reflecting on the dilemmas raised when an infant is born at the borderline of viability. Emulating Sheila, we are driven by a desire to copy the practical and scholarly way she approaches the most troubling questions in medical law. Sheila McLean has always been a scholar unafraid of getting her hands dirty addressing the thorniest of issues and applying a dose of pragmatism to ethical controversy. Thus as well as her published work, her lectures across the world, and all the students she has nurtured, Sheila has contributed in so many ways to policy-making nationally and internationally, and particularly in her beloved Scotland.

What struck the first author as she re-read ‘Abortion Law: Is Consensual Reform Possible?’ was how Sheila’s arguments of 1990 in the context of abortion remain, and have become, relevant in different contexts. Sheila did not (and never expected to) reconcile the warring parties battling over the nature of the fetus and the rights of pregnant women. She did, however (as we believe she set out to), force all sides in the debate into uncomfortable reflection on the soundness of their own entrenched position. Years later, her arguments still command our attention. She casts light on problems of today and tomorrow. We focus on the innate problems, philosophical, legal and practical of the borderline that is birth. We examine decision-making about extremely premature neonates, whether born early by mischance or delivered early by design within a termination of pregnancy which, as proposed by Sheila, allows the woman to free herself of pregnancy while allowing the fetus a chance to survive.

Journey to Legal Life

Arbitrary age limits affecting rights and status are common in the law;7 the boy aged 9 years and 364 days old cannot be charged with a criminal offence in England,8 while his twin, born an hour before on the previous day and so 10 years old, can be hauled before the courts. At the stroke of midnight on her eighteenth birthday a girl in England is suddenly mature enough to wed, parental objections not withstanding. No such time limit has quite the same dramatic impact as the journey to birth. Once ‘born alive’ the baby acquires the legal personality that as a fetus, maybe only a few minutes before, it lacked.9 Even if a wholly lawful decision has been made that the fetus should be aborted should ‘it’ survive and be born alive, any active intervention to hasten death is in theory as much murder as killing any adult.10 It may be lawful not to resuscitate the baby or to withdraw treatment, but only under conditions far more restrictive than those that allow for termination of pregnancy, even after 24 weeks’ gestation. For just this reason, doctors usually strongly recommend that the woman undergoing termination of pregnancy after 21 weeks and 6 days should also consent to feticide.11 The fetus must not be allowed to cross the ‘bright line’ to legal personhood.

It is this line itself that prompts the first dilemma about the status of the neonate, and for many people it makes no sense. John Harris put the case in his usual forthright style, asking: ‘What do people think has happened in the passage down the birth canal to make it okay to kill the foetus at one end of the birth canal but not at the other?’12 Sheila McLean makes the same point using less dramatic language: ‘The distinction between full term handicapped babies and a late abortus is difficult to see’.13 The distinction between an extremely premature infant and an abortus ‘killed’ at the same stage in gestation is harder still to grasp. Hence as Sheila and others have illustrated, the more extreme wings of the opposing parties in the everlasting debates on abortion join forces in condemning any legal rule that the fate of the fetus/infant depends on its location at the relevant minute in time. The anti-abortion camp concludes that any abortion after the point when a fetus could survive outside the womb should be unlawful. Their opponents ask rather why, in any logical world, we ban any form of neonaticide.14 Sheila McLean, valiantly seeking to tease out a middle ground in the abortion wars, sought to distinguish between a claim to the right to be free of pregnancy – a claim that a woman retains the right to control of her body – and a claim that she has a right to demand fetal destruction. For different reasons, the second author of this chapter has asked and partially answered the same question.15 The language of the English legislation that criminalised abortion, the antique Offences Against the Person Act 1861, prohibits procuring a miscarriage. The Abortion Act 1967 speaks of terminating pregnancy. Both Acts assume that ending the pregnancy and ending the life of the fetus are one and the same. McLean (writing in 1990) pointed out the error of that assumption in that in the later stages of pregnancy the developments in neonatal care allowed the fetus delivered early the chance of survival, a chance that is significantly better today. McLean pondered the scenario in which ectogenesis (an artificial womb) might make current debates on abortion ‘obsolete’. If full ectogenesis should ever become reality so that the embryo never resided in a woman’s womb then indeed the age old conflict between the rights and interests of woman and fetus ceases to be relevant, though as we shall see the ‘war’ over the status of the fetus is far from abated. More to the point for the moment is the development of partial ectogenesis where an artificial ‘womb’ can take over gestation in mid pregnancy. In a sense this has already happened. Extremely premature babies, from in one case 21 weeks 6 days,16 can be supported in neonatal intensive care and survive.

Sheila McLean, in distinguishing between ending the pregnancy and ending the life of the fetus, advanced a number of propositions. From the point that the fetus is, to use her word, ‘salvageable’ the woman seeking to be relieved of a pregnancy should be advised and encouraged to consider a method of terminating the pregnancy that permits the maximum chance of fetal survival. Note, she never argues that the woman should be compelled to accept this option and she distinguishes the case of the ‘handicapped foetus’.17 Her argument raises two questions: (1) If the process of removing the fetus from its natural habitat (the womb) can be accomplished in a way that maximises survival chances and imposes no additional health risk or pain for the woman, on what basis can she claim a right to insist that the fetus be killed? As Singer and Wells note, we ‘do not allow a mother to kill her newborn baby because she does not wish to keep it or hand it over for adoption’.18 It does not suffice merely to counsel the woman not to kill the baby. (2) Why distinguish the ‘handicapped foetus’ from its unimpaired sibling?

Justifying Feticide?

Let us for a moment assume that procedures to terminate a pregnancy at a stage in gestation when the fetus has a chance, even a very small chance, of survival, can be performed in such a way as to maximise the chance of survival and at no additional risk or physical discomfort to the woman.19 How then can we distinguish feticide from neonaticide? Given that babies can survive before the 24 week limit that in UK law narrows the grounds for termination, in theory a termination could be carried out at 23 weeks 6 days without evidence of fetal disability or grave risk to the woman’s life or health.20 Perhaps the woman did not discover her pregnancy till late in the day, or her circumstances have changed dramatically and she now feels that she cannot raise a child. After 24 weeks, in theory up to term, the woman may, if two medical practitioners certify that there is a substantial risk that if the child were born s/he would suffer from such physical or mental abnormalities as to be seriously handicapped, elect for a termination on ground of fetal handicap. However, that fetus may nonetheless stand a good chance of survival. The broad definition given to handicap within s. 1(1)(d) of the Abortion Act 1967 means that a pregnancy may lawfully be terminated when the fetus is affected by a condition which, were s/he to make it to birth, would not justify withholding life support, and there would be no doubt that the fetus must be admitted to neonatal intensive care.21 In both such cases the strong likelihood is that to ensure the child is not born alive the termination will be preceded by feticide.

In our first example of the termination of a pregnancy at 23 weeks involving a fetus who (as far as can be known) is healthy, Sheila’s paradigm case looks to be met. The woman who finds herself pregnant when she does not wish to be a mother should be free to rid herself of the pregnancy, but not to have the fetus killed. Sheila goes further and suggests that women might be asked to delay termination to increase the fetus’s survival chances. In this example a wait, whether of 3 weeks or 26 weeks, would make a real difference to the chances of the child surviving and lessen the risks of serious disability, but of course makes the legality of termination more problematic. So should feticide be permitted in such a scenario? The 1861 Act makes it an offence to procure a miscarriage and the 1967 Act provides a defence to terminating a pregnancy. Neither touch on the direct killing of the fetus; nothing in the 1967 Act expressly authorises feticide. Paradoxically, nothing in the 1861 Act expressly criminalises feticide. Its legality, if not morality, depends on case law establishing that given the fetus’s lack of legal personality in utero, killing while it remains in utero is not homicide, albeit that if an attempt to kill is made and the child is born alive but later dies of its prenatal injury, the perpetrator may be convicted of homicide.22 The European Court of Human Rights has so far declined to afford a right to life to the fetus.23

Sheila’s argument is more one of morals than law; what the law might look like if her proposal were accepted rather than how it looks today. So let us test her case using the example of the healthy 23 week fetus. Four problems mar the beauty of the theory.

1. First, the very process of insisting that, while the woman may be freed of her pregnancy, she must accept all measures to promote live birth and be denied the option of feticide, necessarily means that the child is born not simply with only a small chance of survival, but that if she does survive she will live with a high chance of serious disability. The question becomes: is it ethical to promote a practice that creates a high risk of a child with serious disability?

2. The second matter derives from just that dilemma. A few more weeks in utero would lessen the risk of disability, so should women be invited or even required to accept a few more weeks of pregnancy before being afforded a lawful termination? They must wait for their ‘reward’, a guaranteed lawful termination. A woman in this situation should, as Judith Jarvis Thompson put it, accept a minimal Samaritan obligation.24 But how long should this obligation endure? The optimal wait for the baby will be to term or close to term, maybe a further 10 to 15 weeks. The argument swiftly melds into the more general case put by those who oppose abortion: that a woman should carry an unwanted child to term and then be supported in placing the child for adoption.

3. Then there is a very practical issue. The ‘successful’ delivery of a living infant at 20, 22, 24 weeks may require a different and more burdensome (to the woman) mode of delivery, maybe a Caesarean section.25 So far, the English courts have refused to compel women to undergo such surgery against their will.26

4. Finally, the crux of the case that a woman should be free to end her pregnancy but not to end the life of the fetus rests on the assumption that relief from the physical state of pregnancy is the likely motivation, at least for later abortions. This may be true in the rare cases where pregnancy poses grave risk to the life or physical health of the woman and such a woman may happily choose to be delivered in a manner that maximises the chances of healthy survival for both herself and her child. But what of the woman who discovers her pregnancy late, or simply changes her mind? Her motivation may be to avoid biological motherhood, to exercise her reproductive autonomy not to reproduce.27 She does not, at this time, want her genetic child to come into existence. One group of interests that a woman ending a pregnancy might have centre on the interest in not producing offspring that she does not want, regardless of whether others want her to, or those others would like to rear any such unwanted child. Just as there may well be an interest in producing genetic offspring, there may be an equally powerful interest in not producing genetic offspring, requiring at least the same level of respect (whatever that is). What the substance of such claimed interests might amount to, or which might be the stronger, we will not investigate further here; we merely note that there seems to be the same initial plausibility in both the positive and the negative form of such a claim.

While it does not follow from any pro-choice or ‘woman’s right to choose’ type of argument that she has a right or entitlement to end the life of the fetus in utero, such a claim might be founded on other legitimate interests that the mother has, depending on whether or not the fetus itself has any legitimate claims to life whilst in utero. Neither does it follow from the fact that it would be wrong to cause damage to a fetus in utero that would affect it adversely once ‘out there’ in the world, that such damage is wrongful if it is certain that the fetus will never make it into the world alive. Reluctantly, we find ourselves back in the very war we sought to avoid, the claims that should accrue to the fetus.

The Disabled Fetus

Sheila McLean states that her argument does not extend to the ‘salvaging of the handicapped foetus’.28 She notes that the courts have long sanctioned the selective non-treatment of full term handicapped babies.29 She contends that termination on the grounds of fetal abnormality is ‘permissible because of the needs of the foetus and not those of the mother’.30 She reminds us that her argument ‘is not dependent on the sanctity of life’.31As Sheelagh McGuinness32 has so clearly shown, the problem with this exemption for the ‘handicapped fetus’ is that the fetal interests case is hard to make out. In practice, termination of disabled fetuses under s. 1(1)(d) of the Abortion Act is permitted for a range of disabilities that would never be seen as legitimate grounds to withdraw life sustaining treatment from a born infant. A fetus with Down’s Syndrome may be killed by feticide after her mother decides she does not want this child. The baby with Down’s, but no other impairments, must receive the same care as any healthy infant. Sheldon and Wilkinson33 argue convincingly that s. 1(1)(d) allows de facto ‘fetal euthanasia’. Neonatal euthanasia remains homicide.34

Crossing the Rubicon – Today

We move now to the legal fate of the neonate ‘of woman born’, and in particular, the baby born extremely prematurely. The neonatal period is conventionally defined as the first 28 days of life. The theory is straightforward. Once ‘born alive’ the neonate enjoys full legal personality. In its review of decision-making and fetal and neonatal care, the Nuffield Council on Bioethics put it this way: ‘[I]ndependent of gestational age, we consider the child of six days, six months or six years to be worthy of equal consideration’.35 The baby of six minutes or six hours is in English law in theory as much of a legal person as the authors are at a somewhat greater age. The Rubicon has been crossed – though it should be noted that this metaphorical river, unlike its namesake in northern Italy, may be subject to geographical re-location when technology abolishes, or at least makes redundant, the concept of ‘birth’. At such a time, maybe not very far in the future, we will be forced to reconceptualise the status of the emerging human individual, asking not whether it is viable in the sense of capable of living independent of its ‘mother’, but rather whether it is to be legally protected and what the reasons for such protection might amount to.

Meanwhile, today, relying as we still do on ‘traditional’ reproduction, neither the mother, nor both parents in concert, nor doctors, can seek to end the infant’s life, even on grounds that would have justified its termination in utero. As the second author argued many years ago:

In the case of abortion for example, if the mother is entitled to an abortion, her entitlement is to eject the fetus from her body, not to pursue it thereafter. So that her entitlement is not that it will die, only that it will be ejected from her body … it would seem doubtful that the mother had the right to pursue the fetus ‘with an axe’, so to speak, rather than let [others, who might be prepared to care for it] adopt it.36

He speaks here about bringing about a death that would occur after the removal of the fetus from the woman’s body, assuming the moral parity of status between the in utero fetus and the being, of whatever nomenclature, pursued by an axe-wielding mother.

To return to the law, in making decisions about the care of her born infant the mother must act in the best interests of the infant, and if the father shares parental responsibility with her, both parents must give consent to, or agree to refuse treatment of, the infant.37 The first and most important choice is whether the infant should be resuscitated and admitted to neonatal intensive care, and in the weeks that follow, if the infant is gravely ill, whether life-sustaining care should be withheld or withdrawn. Should the doctors caring for the infant believe that the parents are not acting in the infant’s best interests, they may, and on occasion do, challenge the parents in the courts if attempts at mediation and persuasion have failed. If anyone acts to hasten the death of the infant, that amounts to murder in the same way as would similar action to hasten the death of any other person. And so, while (as we have seen) a woman could choose termination and feticide at 23 weeks’ gestation simply because she discovered her pregnancy late and does not want to interrupt her studies, if the arrival of the baby catches her wholly unawares, she cannot seek to end its life. She may of course give the child up for adoption. In this sense the moment of birth does act as a ‘bright line’ and gives rise to the argument addressed above that it is illogical to rest so much on ‘legal geography’,38 the chance of where the fetus or baby is located at the relevant moment in time.

The scenario above – a parent simply wishing to be rid of the newborn – while beloved of thought experimenters, is in essence just that, a thought experiment with little if any connection to the difficult decisions about withholding or withdrawing life sustaining treatment that parents and doctors have to make every day in neonatal intensive care units across the United Kingdom. In these real life decisions we ask whether the theory that the infant born extremely prematurely or an older neonate of a few days or weeks is granted the same status as her elder siblings translates into the reality that the neonate is granted just the same protection/status as the older child of six months or six years. We will suggest that she does not, and occupies in practice an intermediate status between the fetus and the healthy full-term baby. The second author might applaud such recognition of the absence of full personhood in this being that could be seen simply as an ex utero fetus. The first author would accord the baby moral status and see her as intrinsically enjoying the same claims to life and care as any other person. Yet both authors (albeit reluctantly) agree that in practice the infant is treated as not quite a fetus and not quite a baby; she exists, alas, in a degree of legal limbo, and that may be the best that society can do. A number of factors help to explain that legal limbo.