Justice 1 Committee, 27 Nov 2001
Meeting date: Tuesday, November 27, 2001
Official Report
318KB pdf
Petition
Unborn Children (Recognition in Law) (PE382)
Item 2 is on petition PE382, from Thomas Howe. Members have in front of them a note about the petition, which is document J1/01/32/2. The petition concerns a tragic case.
The committee will note the fact that the Executive has responded to the terms of the petition. The law relating to the unborn child does not entirely come under reserved powers, but it is bound up with reserved matters—it is a complex area.
The petition relates only to civil law. Where there is a criminal offence, such as an assault, it is possible for any effect on an unborn child to be regarded as an aggravation of the crime—but I reiterate that the petition relates to a civil matter. No action for damages is possible while a child remains unborn, but a claim can be made when the child is born alive following damage sustained while the child was a foetus.
We understand that only if the woman suffers physical damage resulting in a miscarriage can she claim compensation for related distress and anxiety as the result of the death of an unborn child. The woman, therefore, can enhance—although I think that that is the wrong word—or increase her claim for damages for pain and suffering if, as a consequence of an injury to her, she loses her child. However, there is no claim in respect of the unborn child, who does not have a legal identity. This is an extremely complex area of law, although saying that does not diminish the concerns of the party submitting the petition.
I wish to make one observation. I can understand the motivation behind the petition: that the party suffering distress, whether that be the mother—although, in this case, the mother did not survive—or a member of the family, should compulsorily receive an apology. Regrettably, an apology that is not made voluntarily and whole-heartedly would appear hardly to be worth the breath in which it is given. Is there even a purpose in that? I seek other members' guidance: should we note the petition now—accepting that it relates to a very sad and very serious issue—but say that we are not in a position to explore the issue?
I agree that the case is very tragic. You were talking about the fact that a mother who lost her child as a result of an accident would have a greater claim for compensation. What is the situation with a father who has lost his wife and unborn child? Would that be taken into account?
You are stretching my knowledge of the law of reparation. In the instance with which we are concerned, the mother and child both perished and another relative is seeking at least an apology for that. My comment was an aside on the law. The law is extremely complex. It goes into when a person is a legal entity.
It seems that there should be some recognition that the unborn child whose life has been ended is not a nobody. However, I realise that that area of law is very complex. I feel that that is not something we can resolve.
I agree with Maureen Macmillan that the case is tragic. I was surprised to learn that a child is not a legal person until they have taken their first breath. That would have to be dealt with by changing the status of the unborn child so that it is a legal person.
I am surprised because my understanding is that, under the Abortion Act 1967, an abortion can take place only up to something like 26 weeks into the pregnancy. That recognises that, after that point, the child is at a stage of development at which it is no longer appropriate to have an abortion. To me, the legislation seems to conflict. The problem is that the legislation that would have to be changed is probably reserved and therefore outwith our control.
If the law protects an unborn child from being aborted after 26 weeks, I do not understand how we can continue to state that the unborn child is not a legal person. There is conflict in the legislation, but it appears that it may be outwith our legislative competence.
By what we have been saying, we indicate that we know how complex the matter is. It involves issues of definition and circumstances. I suggest that we simply note the petition at the moment. Does the committee wish me to add anything else?
We should also note that we sympathise with the petitioner and the loss that he has suffered.
The petitioner has been modest in only requesting an apology.
We will simply note the petition at the moment because of its complexity and the intricacy of reserved and devolved powers. If we were to enter into the matter, it would take a considerable amount of time. I do not wish to diminish the case, but we are constrained at the moment. We could not address the matter at the moment. However, the Parliament is in its youth.
I do not know whether there are any other ways in which redress can be made, without having the unborn child declared a legal person.