The question of how to accommodate harm which
occurs to a foetus in the womb is controversial and complex. Recent moves in
the US and Canada to criminalise such behaviour have stirred the
passions of their citizens and no doubt any such move in this jurisdiction
would prove to be similarly contentious. The decision in Vo v France suggests that member states are not obligated under the
European Convention on Human Rights to create criminal legislation to vindicate
the rights of the foetus against unwanted third party interference, however, an
analysis of the rights of the woman may point towards a different outcome. It is
submitted that the analysis of the constitutional rights of the foetus and the
woman in this jurisdiction warrant the provision of sanctions against those who
kill a foetus against the wishes of the woman. It is important to acknowledge
the inherent value of the foetus and to enact legislation to prevent harm
occurring to the foetus but it is submitted that this does not require the
recognition of foetal personhood. Although it has been suggested that
legislation which equates born and unborn life for the purposes of the criminalisation
of harm to the foetus against the wishes of the mother should not be viewed as
a derogation of the rights of the woman, this view continues to persist and
diminishes support for legislation dealing with this issue. Rather than
focusing on foetal personhood, a right explicitly recognised in our
Constitution, the legislature could frame legislation on this issue to focus on
a woman’s rights and her interest in her foetus. Although the right to found a family, to carry a child to
term and the right to bodily integrity are not unlimited, they could form the
basis of arguments in favour of protecting a woman from unwarranted
interference with her foetus. Legislation framed to focus on the rights of the
woman achieves similar aims to that focused on foetal rights while recognising
the special nature of foetal life and its nature distinct from born life.