Foetus’ Right to Protection: Comparing Abortion to Homicide

Foetus’ Right to Protection: Comparing Abortion to Homicide

Article 297(e) of the 1992 Constitution provides that persons include female persons and corporations. In the case of New Patriotic Party v Attorney General[1], the Supreme Court held that persons are both natural and artificial persons, i.e., human beings and body corporates respectively[2]. In line with this, section 66(1) of Act 29 specifies that, “in order that a child may be such a person that it may be murder or manslaughter to cause its death, it is necessary that, before its death, the child should have been completely brought forth alive from the body of the mother.” 

From the point of view of the laws above, a foetus is not classified as a human being or person and cannot be the subject of a homicide (murder or manslaughter) as was held in AG’s Ref (No.3 of 1994)[3]. In that regard, the questions we need to ask are: what is the nature of a human being or a person that does not make a foetus a person? And following the reasoning of the court that a foetus cannot live independent of the mother’s womb, perhaps, does it mean that a foetus does not possess life? And obviously, all human beings live in an environment which provides them life-support – without it they cannot survive. Therefore, what makes it distinct for an unborn child to be disregarded as a non-human being?

Alternatively, the law maintains that an abortion or miscarriage caused by a person, otherwise by a registered medical practitioner, is a criminal offence[4]. In that case, is the law somewhat implying that a foetus is a person in the cause of an abortion?Although abortion and homicide are different criminal offences, however, the subjects are the same, i.e. foetus. The underlying fact is that death has been caused resulting from an unlawful to an unborn child. Proof of either intention or negligence is crucial, but, like any other requirement of mens rea, it is a question of facts, and the proof must be beyond reasonable doubt[5].

In Idiong & Umo v King[6], during the cause of an abortion – the patient died from complications arising from the illegal act. The court held that the acts of abortion was dangerous and unlawful, consequently, the abortionist was guilty of manslaughter.  Thus, in a case of abortion, there should be a specific intent to cause abortion or miscarriage for the charge to suffice.[7]

Moreover, in Burton v Islington Health Authority[8], the claimant were children who had been born suffering from disabilities. This was caused by negligent medical treatment of their mothers during pregnancy and at birth by the medical professionals in the defendant health authority. The controversial issue was whether or not unborn children are viewed as persons in the eyes of the law. It was held that the defendant was not criminally liable but the children could sue for tort of medical negligence.

For all intents and purposes, the reason to render null and void the right of protection of a foetus in a case of homicide because they lack the character of a person does not sit well in mind. And even though abortion is not a criminal offence if it is caused by a registered medical practitioner, it does not answer the question why a foetus is not a person.

[1][1997-1998] 1 GLR 378 

[2]Section 32 of the Interpretation Act (1960),

[3][1998] AC 245

[4]Sections 58(1) and (3) of Act 29

[5]Dua v The State [1963] 2 GLR 385-390 

[6](1960) 13 WACA 30

[7]Suprapg. 1

[8][1993] QB 204 

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