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Does a foetus have a legal personality? A UK decision

Newsletter 23 February 2015

The legal status of a foetus is a controversial and often discussed issue involving ethical, medical and legal considerations. This issue came to the forefront of discussions in Australia last year with the proposed introduction of Zoe’s Law. (The Crimes Amendment (Zoe’s Law) Bill 2013 (No 2) which sought to amend the Crimes Act 1900 (NSW)). That Bill has now lapsed but can still be reintroduced into parliament at a later date.

The issue still remains actively discussed in other jurisdictions, which are grappling with many of the same issues raised by the proposed Zoe’s Law.

In a recent United Kingdom case CP (A child) v First-tier Tribunal [2014] this issue was considered. The child sought compensation for having being afflicted by Foetal Alcohol Spectrum Disorder whilst in utero due to alcohol intake by the mother during pregnancy. In the United Kingdom there is legislation which protects mothers from a claim of negligence from their unborn child.

In this case that child was seeking compensation under a regime similar to our Victims Compensation Act, the Criminal Injuries Compensation Authority (CICA). For a child to be able to claim compensation under CICA they must establish that they are able to be considered as ‘any other person’ at the time the criminal offence was committed. It was argued that a foetus in utero was capable of being ‘any other person’ and should be regarded as a living being with a separate existence to its mother. This argument was rejected. The Court of Appeal concluded that, at the stage the alcohol was administered, the foetus did not have a legal personality to constitute ‘any other person’ within the meaning of the CICA.

This case demonstrates one of issues that may arise if a foetus was given legal status. It would raise particular concerns in Australia where we do not have legislation to protect a mother from being sued by her child.


Kylie Agland, Partner
Sydney

Newsletter 23 February 2015
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