Photo by Jill Lehmann Photography
Artillery Row

Forcible separation

The child was the biggest victim in a tragic case

At 32 weeks, the survival rate for an unborn baby is around 95 per cent, according to the charity Tommy’s. Had Lily been successfully delivered at that age, the likelihood is that she would have just celebrated her third birthday on 11 May.

As it was, her mother Carla Foster had taken medicine intended to induce miscarriage in the first 10 weeks of pregnancy. Lily was stillborn, killed by her mother.

Those are the most salient facts of a case that has caught press attention this week. Given progressive concern for the vulnerable — and who is more vulnerable than a premature baby? — it might be expected that outrage would have been directed at Foster.

Instead, the loudest fury has been at the miscarriage of justice that some feel has befallen her. British midwives, gynaecologists, obstetricians and campaigners appear remarkably uninterested in the death of the child, instead protesting at the mother’s fairly meagre 28-month jail sentence (out, naturally, in 14 months on licence).

Women’s Equality Party leader Mandu Reid claims to be “devastated” for Foster and her children being “forcibly separated from their mum”. There is little acknowledgement that the mother’s actions are what has caused her to be parted from her children, one of whom she will never know.

One can see the rhetorical appeal: who opposes healthcare?

Reid claims that the conviction “serves no one, not her, not her children, not the public interest. All it does is punish a woman for seeking healthcare in the middle of a pandemic and risk deterring women who want or need an abortion from seeking that care in future”.

Claiming “abortion is healthcare” has become something of a trope amongst advocates for greater abortion rights. Variants of the slogan have been adopted by the likes of the Royal College of Obstetricians and Gynaecologists, its American equivalent and Amnesty International. One can see the rhetorical appeal: who opposes healthcare?

It’s also true, in a sense — but it’s not the whole truth. Abortion is also a procedure that ends a life, whether that life is a foetus in its early stages or more recognisable as a baby. It’s why most Western countries have struck a balance between allowing women to end unwanted pregnancies and protecting unborn children.

In this respect Britain is hardly archaic, contrary to the claim by Labour MP Stella Creasy that describes our laws as “a hangover from another era”. By providing abortion on broad social grounds until 24 weeks of pregnancy, the country gives double the time of much of Europe, where on demand abortions are usually restricted at around 12 weeks.

Nor is there something unusual in a law from as long ago 1861 being used to impose a custodial sentence — much English criminal law has old origins, even if it is increasingly codified in statute. From Justice Pepperall’s sentencing remarks, it appears Foster’s counsel suggested the 1861 Act as an alternative charging mechanism.

Either way, Foster was aware of the limits. Her search history saw her seeking advice on abortion after 24 weeks, whilst phone messages indicate she had some idea of when she had fallen pregnant.

Caught up in what Pepperall describes as “emotional turmoil” — compounded by Foster having moved in with an estranged partner whilst being pregnant by another man — she lied to medical staff to obtain pills to conduct an abortion at home.

No magical personhood is granted once in utero becomes ex utero

To describe Foster’s behaviour as immoral seems too obvious to state. Yet critics of her conviction appear to think that Foster was not culpable for her behaviour or, more radically, that women should be under no obligation to continue a pregnancy, however old the unborn child.

This is the stuff of unconscious violinists, the analogy put forward by philosopher Judith Jarvis Thomson, to compare pregnancy to being joined to someone who needs to borrow your kidneys for nine months. The argument posits that a mother has no more duties to a child in utero than she would to a random stranger who needs her body to stay alive for a period.

Such is the end-point of a purified liberalism where nobody owes anything to anyone. The fact that even the US has not granted universal abortion access is suggestive of how inhumane Thomson’s conclusions were. Generally speaking, even Westerners don’t think that women should be allowed to abort babies that are likely to survive outside the womb.

That’s what critics of Foster’s conviction want to be allowed, whatever weasel words they use. The New Statesman’s Rachel Cunliffe may claim that it’s possible “to have a legal system that acknowledges the rights of an unborn child after a certain point and regulates abortion without turning women in crisis into literal criminals”. In practice, what rights do unborn children have if their mothers can kill them without any reprisal?

Put another way, if Foster had not faced the threat of jail, what would it have mattered that her baby died at her home after she ingested the abortion pills? No doubt she would still have been “plagued”, as Pepperall writes, “by nightmares and flashbacks to seeing your dead child’s face”. But the police, the courts and the state would have shrugged.

It is dispiriting that many columnists, from the New Statesman to The Times and even in more reactionary redoubts like The Spectator, appear similarly relaxed about the situation. It’s not like a woman killed her baby, right?

Well, it is: that is the whole story. Had Foster’s baby survived a premature birth in hospital and she’d then smothered it, we wouldn’t be having this conversation. There would remain those who seem to think no woman should ever go to prison for anything, along with those who oppose incarceration even for violent men, but nobody would dispute that if we are having jails, these are the crimes that warrant it.

In the end, there is no meaningful distinction between killing a baby inside the womb and doing it outside. No magical personhood is granted once in utero becomes ex utero. Foster killed her baby, and she should be in jail.

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