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Abortion (or miscarriage) may occur spontaneously, in which case it is of no interest to the criminal law; or it may be deliberately induced, when it is a serious crime.! For legal purposes, abortion means feticide: the intentional destruction of the fetus in the womb, or any untimely ~livery brought about with intent to cause the death of the fetus. It is not criminal for a doctor to induce premature birth, when he has no intent to cause the death of the child; and he does not become criminally responsible even if he accidentally causes death.
There is a linguistic point, and a philosophical point. Ordinary language is uncertain: people used to speak of a pregnant woman as being "great with child," but on the other hand the woman might say that she has no child yet. She is "in the family way" rather than having a family. It is quite natural to speak of a mature fetus as an "unborn child," but it would be odd to refer to a microscopic fertilised ovum in that way.
The philosophical debate is whether there is a difference in moral status between the fetus and the born child. Only by stages do women come to regard the embryo as a separate entity from themselves. Most people agree that at some point of development a fetus has or should have rights, but not the full rights of a born child. We cannot go into the problem further, and it is enough to say that the word "fetus" is here used to cover product" of conception before birth. A fetus is not a legal person, and cannot (for example) own property; but its existence is recognized by law in some ways.
The early Church accepted, and transmitted to the Middle Ages, the generally held be of antiquity that the soul entered the human fetus at some time after conception; this called the theory of mediate animation, since "animation" was supposed to occur at some medial time in pregnancy. The common law absorbed this theory, and fixed the time animation at the time of quickening, when the fetus moved in the womb, an event that usually occurs about half-way through the pregnancy (the 20th week), though at no fixed point. Abortion before quickening was not a: crime punished at common law (though there records of its being punished by ecclesiastical courts2); even abortion after quickening was murder, because no "reasonable creature" was involved, but it was a common misdemeanour, being the killing of a human being or potential human being presumably already possessed of a soul. Thus the common law distinguished between the moral status the fetus and that of the child, according a lower protection to the former.
Men's thinking on this subject was confused, partly because the term "animation" mi refer either to the entry of life (animus) or to the entry of the soul (anima). No one can prove when-or if-a "soul" enters; but to say that the fetus becomes alive only when it move a palpable error. The Roman Church had never regarded the time of quickening as decisive on the entry of the soul, and during the 19th century most Catholic theologians came support the theory of immediate animation-that is, that the human soul enters at moment of conception. Protestant theology paid virtually no attention to the question, the claims of logic or supposed logic were sufficiently strong to procure a stiffening of common law. By a statute of 1803, attempting to procure a miscarriage even bet quickening became a crime triable before the ordinary courts.
Strangely, the law does not make the abortion itself a crime; the criI consists in an act done with intent to procure (cause) an abortion. It ne rests on the Offences against the Person Act 1861 section 58.
"Every woman, being with child, who, with intent to procure her 0' miscarriage, shall unlawfully administer to herself any poison or ott noxious thing, or shall unlawfully use any instrument or other mea whatsoever with the like intent, and whosoever, with intent to procu the miscarriage of any woman, whether she be or be not with chii shall unlawfully administer to her or cause to be taken by her a poison or other noxious thing, or shall use any instrument or oth means whatsoever with the like intent, ... shall be liable ... to kept in [imprisonment] for life."
It will be seen that the Act covers two cases.
First, where a pregnant woman uses any means with intent to procure her own miscarriage.
Although these words still stand in the statute book, women are not prosecuted j procuring abortion themselves, perhaps because of the difficulty of getting a jury to com a woman for an act committed in extreme distress, and the unlikelihood that if convicted s will receive anything more than a nominal sentence. A further good reason for r prosecuting (whether or not it weighs with the police) is that a woman who has operated on herself, or taken drugs, will frequently have caused herself such injury as to necessitate medical attention; and it would be most undesirable that she should be deterred from seeking this attention through the threat of punishment.
Secondly, where anyone else unlawfully uses means with: such intent, whether the woman is pregnant or not. A woman who goes to an illegal abortionist becomes an accessory, but in practice she is not charged.
Legally, using means with intent is the full offence u~der the section. Presumably the Act was drafted like this in order to save the prosecution from having to prove that an abortion was caused.
Instances of means given in the statute are "poison or other noxious thing" and "any instrument. ' The statute is not confined to these two instances, and it has been held to apply an abortion attempted by manipulation with the hand. Where a drug is administered, the judges insist at it must be noxious in itself to be 'a "noxious thing" within the statute: a harmless dose does not become noxious because the drug in question would be noxious if taken in excess.
debolina wrote 791 Days Ago (neutral)0"The touch of children is the delight of the body; the delight of the ear is the hearing of their speech”. Thiruvalluvar
Before starting something about Abortion we need to know what is abortion :
An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death... http://legalservicesindia.com/article/article/legalizing-abortion-161-1.html
mytarun wrote 794 Days Ago (neutral)0Isn't the fetal ground abominably vague?
The physician must decide whether there is a "substantial" risk that the child if born would be "seriously" handicapped. Advances in knowledge and medical skills make it more and more possible to attach a precise mathematical weight to the chance of the fetus being affected by genetic defects or by what happens to it in the womb. But the doctor still has to decide whether the case is sufficiently grave to justify termination. He may, of course, take the view that a relatively low risk justifies termination if the risk is of a relatively serious handicap: in common sense, the two factors are inversely related. Even when the doctor thinks that the "fetal indication" is not itself sufficiently present, the fact that the patient is extremely depressed by worry that the child may be affected can itself be a reason for termination on the health ground.
The health grounds subdivide in relation to the health of the woman and the health of existing children of her family.0 points
mytarun wrote 794 Days Ago (neutral)0THE FETAL GROUND
The fetal ground (s.1(1)(bÂ» does not need extensive consideration. sometimes justified for eugenic reasons, but in fact the contribution 1 abortion is likely to make to the betterment of man's genetic inheritance is slight. No: the argument for abortion on the fetal indication relates to welfare of the parents, whose lives may well be blighted by having to J a grossly defective child, and perhaps secondarily by consideration for public purse. That this is the philosophy of the Act is borne out by the that it allows termination only where the child if born would be seriously handicapped, not where it is merely carrying undesirable genes.
Whereas the health grounds recognized in the Act merely enlarge on the attitude of the Judge in Bourne, that the health of full human beings is to be preferred to the interest of the fetus in being born where the two interests conflict, the fetal ground marks a new departure. The fetus is destroyed not necessarily in its own interest (the physician need make no judgment that life will be a burden for it), but in the interest either of the parents or of society at large, though of course only upon the request of the mother.
Although argument still rages on whether abortion should be permitted merely as a matter of convenience to the woman, the fetal ground is almost universally accepted. But it is of some interest to note that anyone who does accept the fetal ground for abortion commits himself to the view that the moral status of the fetus is not the same as that of a child. For we do not permit children to be killed because they are seriously handicapped.0 points
mytarun wrote 794 Days Ago (neutral)0The Act allows termination out of consideration for existing children of th family. How can existing children be affected in health by having anothe . brother or sister?
Sometimes it may be reasonable to make this judgment. Consider th mother of a "problem family." She is living in poverty, with a large brood of children. Her husband has been in prison and has now been arrested, again. Her existing children are badly cared for and play truant. Now sh is pregnant once more. It may confidently be predicted that if th pregnancy is' allowed to go to term, matters will be worsened for th existing children to the extent that their health play be affected. II practice, doctors who terminate on this ground generally tick it as an extra, to the health of the woman.0 points
mytarun wrote 794 Days Ago (neutral)0Can an abortion be lawfully performed under the Abortion Act at any stage in the pregnancy?
Section 5(1) of the Abortion Act provides:
"Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of a viable fetus)."
It will be remembered that the Act forbids the destruction of a chi capable of being born alive except to preserve the patient's life, and th the Act creates a presumption that a fetus of 28 weeks' gestation can 1 born alive. Medical practice, therefore, is to regard 28 weeks as the limit of time for legal terminations. Operating after this time limit, on a ground specified for lawful abortions, would not be the offence of abortion but would be child destruction.0 points
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