Paton v. British Pregnancy Advisory Service Trustees and Another [1978] QB 276
United Kingdom, 'High Court of Justice, Queen''s Bench Division'

Paton v. British Pregnancy Advisory Service Trustees and Another [1978] QB 276

DATE 24-05-1978DOWNLOAD LEGAL DECISION

Judges:

Sir George Baker, P.

Sir George Baker, P.

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Topics:

AbortionForced and Non-Consensual Practices Intersectional Discrimination

Related standards:

Abortion Act 1967 (United Kingdom) section 1

RELATED STANDARDS

Abortion Act 1967 (United Kingdom) section 1

"(1) ... a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith - (a) that the continuance of the pregnancy would involve risk ... of injury to the physical or mental health of the pregnant woman. ... (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this section, accounts may be taken of the pregnant woman's actual or reasonably foreseeable environment." [Text of section 1 of the Abortion Act 1967 relevant to, and at the time of, the Paton v British Pregnancy Advisory Service Trustees and Another decision in 1978. This section has since been amended by the Human Fertilisation and Embryology Act 1990 and Statutory Instruments 1991/480 and 1991/1400]

WHY IT MATTERS:

Appeals from the High Court in civil matters are made to the Court of Appeal (Civil Division) and/or the Supreme Court of the United Kingdom. In principle the High Court is bound by its own previous decisions.

According to the Court, this was the first case of its kind litigated in England. It is an important decision in terms of the rights of a woman to make autonomous decisions about her body and life project. Were a husband, or partner, to be granted a power the right to prohibit a woman from legally terminating an abortion, it would have devastating effects on a woman's right to decide her life path, her autonomy and her dignity, among other rights.

At the outset of the judgment the Court noted the controversy that can often surround the issue of abortion, regarding moral rights, duties, interests, standards and religious views of the parties, but emphasised that it was solely concerned with the application of the law free of emotion or predilection.

The Court makes an interesting parallel between the fact that no court would grant an injunction to stop sterilization and vasectomy and the issue at hand. Essentially, it concentrates, not on the foetus in question, but the autonomy and rights of the person, in this case the person seeking sterilization or vasectomy and a woman seeking an abortion.

The level of deference of the Court to the medical profession is notable in this decision, and perhaps, particularly bearing in mind the possible ramifications with regard to patients lacking capacity, it arguably goes too far.

The Court held that a husband, who had applied for an injunction to stop his estranged wife and a service provider, from having an abortion and providing abortion services respectively, could not by law stop his wife from having a lawful abortion, or the service provider from providing such services.

The plaintiff, William Paton, was the husband of the second defendant, Joan Mary Paton. On May 8, 1978 the wife's general practitioner confirmed that she was pregnant. Thereafter, she applied for and obtained the necessary medical certificate entitling her to an abortion within the terms of the 1967 Abortion Act.

On May 16, 1978 Ms. Paton left the family home. The following day her husband applied for an injunction to restrain the British Pregnancy Advisory Service and his estranged wife from causing or permitting an abortion to be carried out on his wife. On this same day, Ms. Paton filed for divorce. Mr. Paton originally argued that his wife had no proper legal grounds for seeking the termination of her pregnancy and that she was being spiteful, vindictive and utterly unreasonable in so doing. The case was adjourned for a week to allow all parties to be represented.

Thereafter all parties accepted that the provisions of the 1967 Act had been properly complied with. Mr. Paton maintained that he had a right to a say in the destiny of the child he had conceived.

Emotion and Law 
As an opening statement the Court noted that in the discussion of human affairs and especially of abortion, controversy can rage over the moral rights, duties, interests, standards and religious views of the parties, but noted that it was concerned only with the law of England as it applies to the claim; that its task was to apply the law free of emotion or predilection.

Injunctions and the Foetus 
The Court then dealt with the issue of injunctions. Briefly, it held that the basic principle is that there must be a legal right enforceable in law or in equity before the applicant can obtain an injunction from the court to restrain an infringement of that right.

Examining whether the plaintiff had that right, the Court observed that a foetus cannot, in English law, have a right of its own at least until it is born and has a separate existence from the mother. This fact, it held, permeates the whole of English civil law and is the basis of the decisions in those countries where law is founded on the common law. Looking at the right of action in respect of pre-natal injury, it held that it was universally accepted that in order to have a right the foetus must be born and be a child. With regard to succession, from conception a foetus may have succession rights by "fictional construction" but the foetus must subsequently be born alive. Thus it held that there was no right in law pertaining to the foetus.

Injunction and the husband 
Thus, for the father's case to have merit, it must depend on a right he has himself. The Court held that an illegitimate father can have no rights except those given to him by statute, and it found that there was no such right in operation at that time. The Court therefore examined if he had any rights as a husband. It noted, referring to the case of Forster v Forster (1790) 1 Hag. Con. 144, that matrimonial courts have never attempted the enforcement of matrimonial obligations by injunction. The law cannot and would not seek to enforce or restrain by injunction matrimonial obligations, if they be obligations, such as sexual intercourse or contraception, nor would any court grant an injunction to stop sterilization and vasectomy. It was "ludicrous" to believe that personal family relationships in marriage can be enforced by an order of a court.

Remedy and Futility
The Court queried what the remedy to such an injunction would be, and noted that it did not need to say any more than no judge could ever consider sending a husband or wife to prison for breaking such an order. It concluded that the husband could not by law stop his wife by injunction from having a lawful abortion. All the requirements for a lawful abortion had been complied with in this case and the doctors had provided medical certificates in good faith.

Abortion Act 1967: Right of Consultation? 
The Abortion Act 1967 gives no right to a father to be consulted in respect of a termination of a pregnancy. The Court noted that it gives no right to the mother either, but that she, obviously, is going to be right at the heart of the matter consulting with the doctors if they are to arrive at a decision in good faith (unless she lacks capacity). The Court held that the husband had no legal right enforceable in law or in equity to stop his wife having this abortion or to stop the doctors from carrying out the abortion.

Supervision: Obiter 
The Court noted, obiter (it is to say, as a non binding part of the decision), that in its view it would be impossible for the courts to supervise the operation of the Abortion Act 1967. In its view, that great social responsibility is firmly placed by the law on the shoulders of the medical profession. (See also Reg. v Smith (John) [1973] 1 WLR 1510, 1512).

Medical Profession 
The Court noted that in line with the requirements of the 1967 Act, the medical certificates had been provided in good faith. The Court noted that it would be a foolish, "bold and brave judge" who would seek to interfere with the discretion of doctors acting under the 1967 Act unless there was clear bad faith and an obvious attempt to perpetrate a criminal offence (which it noted would be a matter for the Director of Public Prosecutions and the Attorney General).

Spousal Consent and Abortion 
The Court noted that the US Supreme Court, in Planned Parenthood of Central Missouri v Danforth A. G. (1976) 96 S. CT. 2831, observed that a state could not constitutionally require the consent of a spouse as a condition for abortion during the first 12 weeks of pregnancy. That Court thus held that a state cannot delegate authority to any particular person, including a spouse, to prevent abortion during that same period. In the present case, the Court added that there were no consent or consultation provisions in the 1967 Act.

The Court held that the claim for an injunction was "completely misconceived". An injunction could not be granted because a husband had no right, enforceable at law or in equity, to stop his wife having, or a registered medical practitioner performing, a legal abortion.

More specifically, since an unborn child had no rights of its own and a father had no rights at common law over his illegitimate child, the husband's right to apply for the injunction had to be on the basis that he had the status of husband; that the courts had never exercised jurisdiction to control personal relationships in marriage and, in the absence of the right to be consulted under the Abortion Act 1967, the husband had no rights enforceable in law or in equity to prevent his wife from having an abortion or to stop the doctors carrying out the abortion which was lawful under the Act of 1967.

High Court of Justice, Queen's Bench Division.
High Court of Justice, Queen's Bench Division.
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