Coronial powers and the rights of the unborn (Part 2)

In this two-part article, Maya Sikand KC, Tom Stoate and Ruby Peacock, explore two difficult questions arising from the inquest into the ‘harrowing circumstances’ of the death of a baby, Aisha Cleary, at HMP Bronzefield. 

The first part explored whether coroners should have jurisdiction to investigate stillbirths. 

This second part seeks to answer the question: should foetuses ever be protected by a ‘derivative’ right to life?

For a brief introduction to Aisha Cleary’s case, please see Part 1.

Article 2 ECHR rights in utero

Article 2, encapsulating the right to life under the European Convention on Human Rights (‘ECHR’), does not provide temporal limitations on the right to life and does not define ‘everyone’ (‘toute personne’) whose life is protected by the Convention.^[1] The European Court on Human Rights (‘ECtHR’) has left it to the margin of appreciation of Convention states to decide when life begins for the purposes of Article 2. In England and Wales, ‘Coroners do not have jurisdiction to conduct an investigation concerning a foetus or a stillborn child, as where there has not been an independent life, there has not legally been a death’.^[2]

In baby Aisha’s case it was not immediately clear whether she had been born alive and died shortly after the birth, or whether she had been stillborn. The Senior Coroner for Surrey, Richard Travers, decided at the opening stage that Aisha’s inquest should comply with the State’s enhanced investigative obligation arising under Article 2 of the ECHR, but determined that he would keep this decision under review until the close of the evidence. At the close of the inquest, Mr Travers concluded: ‘Aisha was either born alive and died shortly afterwards, or she died before her delivery, but not more than 24 hours earlier’.^[3]

The central State Interested Persons (‘IPs’) argued that, in light of the ongoing uncertainty as to whether Aisha was born alive or stillborn,^[4] Article 2 could not be engaged and in any event, and, as argued by the Ministry of Justice (‘MoJ’), a baby born in prison is not in State detention – only her mother is. The effect of this would have been to significantly limit the scope of the conclusions available to the Coroner. 

On behalf of Ms Cleary, it was submitted that, a pregnant prisoner who gives birth in her cell and without medical (or any other) assistance, is entirely dependent on the care of the State which has assumed responsibility for her welfare and safety. Given the unborn child’s intimate connection to the prisoner, she was wholly dependent on the State to protect her life, and was therefore in the control of the State.^[5] It was further argued that the Coroner must proceed as if Aisha was born alive – as it was accepted by the Coroner that she may have been alive, and in circumstances where there was ‘clear evidence… of systemic failings which more than minimally contributed to Aisha being delivered in a prison cell without medical assistance and, following delivery, losing the chance of resuscitation and survival’.^[6]

In what may be a landmark decision, Mr Travers accepted that the State’s investigative obligation under Article 2 was ultimately engaged: firstly because, if a live birth could not be ruled out, Aisha may have been born alive and her death may have been more than minimally contributed to by the State’s failings; and secondly because Aisha was in the control of the State, whether she was technically detained or not.

However, had resolution of the evidence been different – for example, had the Coroner been satisfied at an early stage of the investigation that Aisha was in fact stillborn – it would not have been possible to hold an Article 2 compliant, ‘enhanced’ inquest, nor to conduct the investigation which ultimately held the State accountable for numerous causative failings. 

The issues in this inquest therefore raise a thorny question: should foetuses capable of independent life ever be protected by Article 2? 

It is absolutely essential that a mother’s^[7] right to choose whether to carry a foetus to full term remains protected, and also that pregnant women are not exposed to scrutiny or potential criminal liability because of choices and actions during pregnancy. However, in circumstances where a mother wants to keep her baby, the foetus is healthy and medically viable and there is no known risk posed to that mother’s life by continuing her pregnancy – there should be scope for the State’s investigative obligations under Article 2, to examine whether any failings on the part of the State may have contributed to the death or stillbirth of the foetus, to be engaged in clearly defined circumstances. Can that be achieved without eroding the rights of pregnant women?

This is undoubtedly a complex and sensitive discussion. For those in many jurisdictions who have fearlessly defended abortion rights the risk of elevating the rights and interests of an unborn foetus over that of the pregnant woman is an intolerable one. The overturning of Roe v Wade in the United States, which dismantled 50 years of legal protection and paved the way for individual states to curtail or outright ban abortion rights, reverberated across the world in 2022 and continues to profoundly impact the lives of women in America. Against that background, talking about the rights of the unborn can be both frightening and unwelcome.   

Aisha’s case illustrates, however, that there is an important aspect of the debate in which to engage. The triggering of the Article 2 investigative duty where the State fails to protect the mother,^[8] and consequently the foetus, has the potential to protect and promote the rights, interests and, ultimately, the wellbeing of parents and families of babies who die before signs of independent life can be observed (or where there is no conclusive evidence either way). It ought to be possible to engage with this discussion in a manner which enhances rather than undermines reproductive autonomy. The right of a woman to terminate an unwanted pregnancy and her right to protect a wanted pregnancy whilst in the care of the State go hand in hand in the sense that they both are about protecting the life, wellbeing and autonomy of pregnant women. 

In Vo v France (2004) 40 EHRR 12, the first ECtHR case to consider the rights of the foetus outside of the voluntary abortion context, the applicant had been six months pregnant with a wanted and healthy pregnancy when an error by a doctor caused her to lose amniotic fluid, necessitating the termination of her pregnancy on health grounds. The applicant mother argued that the authorities’ refusal to classify the taking of her unborn child’s life as unintentional homicide breached Article 2.

The ECtHR summarised the law to date as follows (emphasis added): 

‘It follows from this recapitulation of the case law that in the circumstances examined to date by the Convention institutions—that is, in the various laws on abortion—the unborn child is not regarded as a ‘person’ directly protected by article 2 of the Convention and that if the unborn do have a ‘right’ to ‘life’, it is implicitly limited by the mother’s rights and interests. The Convention institutions have not, however, ruled out the possibility that in certain circumstances safeguards may be extended to the unborn child. […] It is also clear from an examination of these cases that the issue has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-à-vis an unborn child […] As is apparent from the above recapitulation of the case law, the interpretation of article 2 in this connection has been informed by a clear desire to strike a balance, and the Convention institutions’ position in relation to the legal, medical, philosophical, ethical or religious dimensions of defining the human being has taken into account the various approaches to the matter at national level’.^[9]

This reasoning was followed in the domestic context in R (Crowter) v Secretary of State for Health and Social Care [2021] EWHC 2536 (Admin), which was a challenge to the compatibility of the provision in the Abortion Act 1967 which permits termination of a foetus after 24 weeks where there is a substantial risk that, if born, a child would be ‘seriously handicapped’ with the ECHR rights of those born with Down’s Syndrome and other serious disabilities (covered here on the UKHRB). The Court observed (emphasis added): 

The fundamental difficulty for [the claimant’s] argument is that the European court has never decided that a foetus, even one post-viability, is the bearer of Convention rights, including article 2. To the contrary, it has been content to leave the controversial and difficult issue of when life begins to the margin of appreciation of contracting states. The fact that both domestic legislation and courts, and the European court itself, have recognised that there may be circumstances in which the foetus has interests which the state is entitled to protect does not lead to the proposition that it enjoys rights under article 2’.^[10]

On appeal to the Court of Appeal^[11], the Article 2 argument was not pursued.^[12] Of note, however, the Court, citing Lady Hale in the Supreme Court decision of In re Northern Ireland Human Rights Commission’s Application for Judicial Review [2019] 1 All ER 173, underlined the competing moral interests: 

‘At para 21, in the context of identifying the legitimate aim pursued by legislation restricting abortion rights, which of their nature interfere with the article 8 rights of pregnant women, [Lady Hale] says that that aim: 

“cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (Application No 53924/00) (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn—it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life, health and welfare of the pregnant woman—that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights-holders under both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two.” 

[…] that passage […] is important not only because it confirms that the unborn do not have Convention rights but also because it recognises that in this sensitive area the law is concerned with striking a balance between competing interests’.^[13]

Whilst the case law rightly establishes that an unborn foetus does not enjoy freestanding Convention rights, there should be scope for the right of a pregnant woman to protect her unborn foetus to be recognised. To the authors’ knowledge, domestic case law has not thus far considered a case brought by a parent who wishes to keep (rather than abort) a foetus, and where the interests of the pregnant mother and the foetus are aligned (and where the difficult and sensitive balancing exercise of competing rights and interests is not required). 

Baby Aisha’s case highlights that there may be narrow but important circumstances in which it would be in the public interest for the courts to recognise the State’s Article 2 investigative obligations in respect of the unborn. These circumstances should be limited to where the person carrying the foetus wants to carry it to full term and where the life of the unborn is dependent on the State preserving and protecting it. That may be where the foetus is within the womb and the pregnant mother is in custody, but could also include circumstances in which the State has assumed responsibility in a healthcare setting.^[14] In those circumstances, the status of a pregnant mother as being in custody or state detention, for the purposes of coronial law, should also extend to the foetus,^[15] permitting a coroner to hold an enhanced investigation where a stillbirth has occurred (for further detail, please see Part 1 of this article).

The Strasbourg case law hints at ‘safeguards’ or ‘interests’ of the unborn that should or could be protected by the State in unspecified circumstances. It is perhaps in circumstances such as these the unborn would qualify for such safeguards or protection in its own right. However, any safeguards or interests which attach to the foetus in its own right have, understandably, been expressed in nebulous terms; to provide the foetus concrete, free standing protection inevitably risks impinging upon the rights and interests of the pregnant woman. The problem is that the lack of clarity which is intended to give primacy to the rights of the pregnant woman in some circumstances leaves her without redress, where State acts or omissions have caused or contributed to the loss of a wanted pregnancy. 

Alternatively, recognising that the pregnant mother’s Article 2 rights extend to protecting the foetus whilst she is pregnant obviates the need for a ‘balancing act’ between the rights and interests of the pregnant woman and the foetus. In these circumstances, the foetus is not afforded legal personality – avoiding the potentially dangerous ramifications of doing so. Where State accountability is crucial, the consequences of not affording the unborn some kind of derivative or parasitic right could be that State authorities escape proper scrutiny. To avoid that the mother ought to be able to rely on her own Article 2 rights to hold the State to account. 

Maya Sikand KC and Tom Stoate are barristers who acted for Aisha’s mother in the inquest into her death, and Ruby Peacock is a pupil barrister, all at Doughty Street Chambers.