Dr. Ruth Fletcher:

Many rich questions were asked and I thank committee members for them. I will address the points on the definition of the unborn. The question was asked as to how the proposed definition of "unborn" would deal with the idea that it applied to those foetuses which are born and survive for one second. Another issue was whether it includes dead embryos or foetuses in the womb.

At present we do not have legal precedents on the definition of the unborn where a lethal abnormality exists. We do not have a direct legal precedent on this particular issue. Because we do not have this direct legal precedent the Legislature has the ability to define "unborn" in a way which would address these problems which have arisen through acknowledging the suffering of women and couples who have had to travel, even though the pregnancies will not survive. The view has been put forward that "unborn" could apply to foetuses which have survived even for one day, but I advocate we do not accept this view and that we define the unborn in a way which excludes foetuses which do not have the capacity to survive. This is not to say these foetuses have no value; I do not argue this at all. I am just arguing no good will be achieved by forcing a woman to continue a pregnancy when the child will not survive.

With regard to the point on the current definition of the unborn being overly broad and not excluding even dead embryos or foetuses, it is interesting that the institute raised this issue. Obviously as a medical matter it is seen as excluded and comes under the category of miscarriage. This is what is happening in medical guidelines and practice at present. We need a tighter definition of the unborn to exclude this possibility. We also have an opportunity to have a definition of the unborn which deals with foetuses which would survive through pregnancy but would not survive for long after birth.

The second interesting set of questions raised were to do with arguments around full personhood and how we distinguish between the foetus as sentient life and the born patient stripped of consciousness because he or she was in a crash or is a patient with Alzheimer's disease. We are not stating that full personhood is all that counts; we are saying there are three different forms of human life which all impose values and status. I distinguish between the example of a person with Alzheimer's disease or the person in a crash and sentient foetal life in the womb because a person with Alzheimer's disease or a person who has been stripped of consciousness through an injury had been sentient with a conscience and a will but through accident or disease this capacity has been lost. Because such people had this full personhood status it is possible to distinguish them from an earlier foetus which has not yet attained these capacities. Its ability to attain these capacities is dependent on a pregnant woman getting it to the point of attaining them. There are ethical ways in which we can distinguish these cases. The ways in which they are similar are obviously that in all cases families and loved ones are concerned about the value of these forms of life. If they are sentient forms of life they are similar in this way and this can impose duties on us. I am just saying they are not the same order of duties as full personhood would impose.

The final point raised had to do with criminalisation. One of the big risks of criminalisation, or why we should not act disproportionately and punitively in implementing Article 40.3.3°, is because it will affect the most vulnerable. Young women who are avoiding using health care practice by ordering medical terminations over the Internet are a classic example. We would be effectively criminalising this behaviour and making the situation worse. This is not a good use of our law when we have the opportunity to do something more positive and progressive.