1. Antenatal Injury and the Rights of the Foetus
- Author
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T. D. Campbell and A. J. M. McKay
- Subjects
Bodily integrity ,Liberal paradox ,Human rights ,Right to health ,Personhood ,media_common.quotation_subject ,Abortion ,Right to property ,Philosophy ,Law ,embryonic structures ,Damages ,Psychology ,reproductive and urinary physiology ,media_common - Abstract
It is sometimes assumed that in order to establish that compensation should be paid to children who are born malformed as a result of injuries done negligently to the foetus it is necessary to regard the foetus as having rights, and it is frequently argued that to admit that the foetus has rights provides the basis for a strong, perhaps overriding, argument against abortion. If this is so, then there are two conflicting tendencies in what might be called liberal social attitudes concerning the foetus. On the one hand there is the view, characteristically held by defenders of abortion, that the foetus has no rights to stand in the way of abortion where this is thought to be desirable, and on the other hand there is the view, held by some who wish to establish that antenatal injury gives rise to valid claims for compensation, that the foetus has rights on the basis of which damages may be awarded against the negligent perpetrators of such injuries. It may therefore appear to the supporter of abortion that he must resist the tendency to admit claims based on antenatal injuries on the grounds that he cannot have it both ways; consequently he must abandon his position on abortion or modify his views on antenatal injury. Thus it has been alleged that American law appears schizoid because it protects the right to property and bodily integrity of someone who has no legal right even to exist, with the paradoxical result that it is legally permissible to kill but not to injure the foetus.1 How, it is asked, can the law permit abortion while at the same time it allows posthumous children to inherit, forces mothers to have blood transfusions in the interests of the health of the foetus, and rules that a child which dies almost immediately after birth may recover for prenatal injuries caused early in the pregnancy? Consistency requires, surely, either that the foetus has the right to health and happiness, in which case abortion is ruled out, or that it has not, in which case antenatal injury to the foetus does not give rise to claims by the foetus for damages against those who caused the injuries. In this paper we shall consider various solutions to this liberal paradox
- Published
- 1978
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