IN their unanimous 14-page written judgment issued yesterday, the Court of Session judges quoted with approval the words of an English judge that their task was to apply the law ''free of emotion''.
They referred to a decision of the European Commission of Human Rights that to recognise an absolute right to life for a foetus would involve a serious risk to the life of the pregnant woman.
Lord Cullen, the Lord Justice Clerk, who heard the appeal with Lords McCluskey and Wylie, said: ''None of the decisions to which we were referred appear to us to provide support for the view that a foetus has a legal persona, or is otherwise recognised as capable of being vested in personal rights for the protection of which the remedy of interdict may be invoked.''
Mr Colin Sutherland, QC, counsel for Mr Kelly, had argued that no previous decision in countries outside Scotland had answered the question: if it was legally wrong to damage the foetus why was it not capable of being interdicted as a wrong?
Lord Cullen said: ''That question begs a further question, namely, given that a claim can be made by or on behalf of a child who has been born in respect of an injury caused by what was done before his or her birth, does it follow that injury to the foetus as such is actionable before the birth? In our opinion it does not.
''Whether it is an actionable wrong to the unborn foetus for a pregnancy to be terminated depends essentially on whe-ther Scots law confers on the foetus a right to continue to exist in the mother's womb. Our conclusion is that Scots law recognises no such right in the foetus.
''To recognise the right of the foetus to continue in the womb would inevitably create a conflict with the policy of the (Abortion) Act to enable women to exercise their right to terminate the pregnancy in accordance with its terms.''
The European Commission of Human Rights had rejected the proposition that the Human Rights Convention recognised an absolute ''right to life'' of the foetus. The commission had added: ''This would mean that the 'unborn life' of the foetus would be regarded as being of higher value than the life of the pregnant woman.''
Lord Cullen also pointed out that if the foetus had the right to its own protection by way of interdict, there was no reason why this should be confined to cases of abortion, and could be used by a father taking legal action with a view ''to restraining the mother from some form of activity which claimed to be harmful to the foetus, such as smoking and certain sports and occupation''.
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