R v. Bourne
United Kingdom, Central Criminal Court

R v. Bourne

DATE 19-07-1938DOWNLOAD LEGAL DECISION

Judges:

Malcolm MacNaughten

Malcolm MacNaughten

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Topics:

Abortion

Related standards:

Offences Against the Person Act 1861 (United Kingdom) Section 58

RELATED STANDARDS

Offences Against the Person Act 1861 (United Kingdom) Section 58

Every Woman, being with Child, who, with Intent to procure her own Miscarriage, shall unlawfully administer to herself any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, and whosoever, with Intent to procure the Miscarriage of any Woman, whether she be or be not with Child, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Three Years,
Infant Life (Preservation) Act 1929 (United Kingdom) Section1

RELATED STANDARDS

Infant Life (Preservation) Act 1929 (United Kingdom) Section1

(1) Subject as hereinafter in this subsection provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life : Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child, was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.

WHY IT MATTERS:

The Bourne judgment is a landmark decision. This was the first case to address the grounds upon which an abortion could be legally provided in England. The principles the judge set down influenced British thinking about abortion trough decades and they were relevant in the approval of the 1967 Abortion Act, which is current law in the country.

The Court stated that protecting the life (to be understood to include health, both physical and mental) of the pregnant woman is a medical duty and that it was a sufficient ground for legally carrying out an abortion. It thus introduced into the legal framework the concept that the pregnancy could have detrimental effect on a woman’s health, to include both physical and mental health, such as to pose a significant risk to her life.

R v. Bourne has had a lasting impact on the legal regimes of former British colonies and Commonwealth countries, for example, the case has been affirmed in Zambia (HP.11/1971), Canada (R. v. Morgentaler), New Zealand (R. v. Anderson), Australia (R. v. Davidson) and in Nigeria under the jurisdiction of the West African Court of Appeal (R. v. Edgal). Additionally and notably, the East African Court of Appeal (EACA) affirmed the decision made by the Kenyan Supreme Court in Mehar Sing Bansel v. R (1959), where R. v. Bourne was crucial.

In a landmark judgment, Justice MacNaughten clarified the law in the case of a surgeon found not guilty of procuring an abortion after carrying out the procedure on a 14 year old rape victim. The Judge directed the jury that it must be proven beyond reasonable doubt that the abortion was not performed to save the life of the girl. The Court established that doctors do not have to wait until the patient is in peril of immediate death but rather it is the duty of doctors to perform the operation if, on reasonable grounds and with adequate knowledge, the probable consequence of the continuance of the pregnancy would negatively affect the physical and mental health of the woman. Therefore, abortions can legally be carried out where the life or health of a pregnant woman is reasonably thought to be in danger.
In 1938, Mr. Alex Bourne, a high skilled surgeon, carried out an abortion on a 14 year old girl who had become pregnant as the result of violent rape. The abortion took place in one of the London hospitals and the operation was performed without a fee. The surgeon was charged under s 58 of the Offences against the Person Act, with unlawfully performing an abortion. At that time, abortion in England was authorized only when done in good faith for the purpose only of preserving the life of the mother.
The judge highlighted in his direction to the jury the gravity of the crime of which the surgeon was accused. Under the Offences against the Person Act, the maximum penalty for illegally performing an abortion was life imprisonment.

The judge differentiated the instant case from other situations and cases in which abortions are carried out by non medical personnel for a fee leading to deaths of women in England. The judge used the example of a case which had come before the court in which a woman without any medical qualifications performed an abortion and was paid her fee despite the fact that the woman was left dead on the floor. The judge in this case, instead noted that Mr Bourne was a surgeon of the highest skill in one of the best hospitals in the country. The Court directed that in determining the legality of the abortion it was important to remember that the abortion was carried out without fee or reward and that he carried it out unquestionably believing that he was doing the right thing, in the performance of his duty as a member of a profession devoted to the alleviation of human suffering.

The judge found, given the circumstances of the case, the jury had to determine whether the Crown has proved beyond reasonable doubt that the act was not done in good faith for the purpose only of preserving the life of the girl. Considering the wording of s 58 and he found that the word ´unlawful´ implied that there were circumstances in which abortions could be carried out lawfully when done so in good faith.

The Interpretation of Life
The judge then turned to the meaning of life and stated that ´life depends on health, and it may be that health is so gravely impaired that death results´. The judge asked whether there was a perfectly clear line of distinction between danger to life and health and concluded that there was not. Mr Bourne on examination himself stated: There is a large body of material between those two extremes in which it is not really possible to say how far life will be in danger, but we find, of course, that the health is depressed to such an extent that their life is shortened, such as in cardiac cases, so that you may say that their life is in danger, because death might occur within measurable distance of the time of their labour.

The judge went on to state that ´preserving the life of the mother´ must be interpreted reasonably and that it is wider than instant death. He used the example of where a woman would not be able to deliver a child, without reasonable expectation of the death, and held that in those circumstances it is the duty of the doctor to perform the operation. The judge stated that in such a case it is obvious that the sooner the operation is performed the better. The law is not that the doctor has got to wait until the unfortunate woman is in peril of immediate death and then at the last moment snatch her from the jaws of death. He is not only entitled, but it is his duty, to perform the operation with a view to saving her life.

Conscientious Objection
The Court found that while the law does not allow a woman to have an abortion because she so desires, neither does it allow persons to object on religious reasons to the operation being performed at all, in any circumstances. The Court stated that a person who holds such an opinion ought not to be a doctor practising in that branch of medicine, for, if a case arose where the life of the woman could be saved by performing the operation and the doctor refused to perform it because of some religious opinion, and the woman died, he would be in grave peril of being brought before this court on a charge of manslaughter by negligence.

Health
The judge stated that words ought to be construed in a reasonable sense, and, if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy would be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor, who, in those circumstances, and in that honest belief, operates for the purpose of preserving the life of the woman.

The judge also highlighted the effects of pregnancy on young girls, stating that it is common sense that it must be undesirable that a girl should go through the state of pregnancy, and, finally, of labour, when she is of tender years. The Court also found that the effect of rape on a 14 year old girl must be considered. The judge stated that while the jury were free to assess the facts and the expert testimony on the effects of rape on children, no doubt the jury would find that it is only common sense that a girl who for 9 months has to carry in her body the reminder of the dreadful scene and then go through the pangs of childbirth must suffer great mental anguish. The judge stated that human life is sacred and the legal of protection of life extends to the unborn child in the womb, however ´(t)he unborn child in the womb must not be destroyed unless the destruction of that child is for the purpose of preserving the yet more precious life of the mother.´

The surgeon was found not guilty by the jury.
Central Criminal Court.
Central Criminal Court.
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