A Lacuna in the Criminal Law’s Protection of Antenatal Life

AuthorJames P King,Philip Morrison
Published date01 August 2020
Date01 August 2020
Subject MatterComment
A Lacuna in the Criminal
Law’s Protection of
Antenatal Life
James P King
Imperial College London School of Medicine, UK
Philip Morrison
The Honourable Society of Lincoln’s Inn, UK
The criminal law protects antenatal and postnatal life primarily through three offences: murder,
child destruction and the prohibition on procuring a miscarriage. However, recent advances in
medical science have rendered this framework under-inclusive and exposed gaps in the law’s
protection. By setting out some of these scientific advancements, this article explores these
gaps, considers how they have arisen and proposes a solution.
Antenatal, criminal law, destruction, foetus, viability
The criminal law has always been concerned to protect the life of children before and after birth. This
protection primarily arises in three ways. The law on murder protects the child after they are born, the
law against procuring a miscarriage protects the foetus in the womb and the offence of child destruction
under the Infant Life (Preservation) Act 1929 fills the gap between these two offences.
However, recent developments in medical science have exposed factual matrices in which the Infant
Life (Preservation) Act 1929 can no longer fulfil its intended purpose. There is now a very strong
argument to be made that, by virtue of failing to keep up with medical advancements, a lacuna in the
criminal law’s protection of antenatal life has re-emerged.
This article draws on contemporary legal and medical developments to demonstrate by doctrinal
analysis this gap in the law. It begins by setting out the existing legal framework for the criminal law’s
protection of antenatal and postnatal life. Next, it identifies the problems in this existing framework
through consideration of three important advancements in medical science. It then proposes a solution to
Corresponding author:
Philip Morrison, Barrister, The Honourable Society of Lincoln’s Inn, London WC2A 3EN, UK.
E-mail: philipmorrison@hotmail.co.uk
The Journal of Criminal Law
2020, Vol. 84(4) 369–376
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0022018320943038

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