Rex v Bourne: 1939

An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain circumstances to abort an unborn child to save the life of the mother. The defence of necessity might be available. The judge directed the jury that the inclusion of the word ‘unlawfully’, in the statutory definition of the offence of procuring a miscarriage with intent, made it incumbent on the Crown to prove that the act was not ‘done in good faith for the purpose only of preserving the life of the mother’, and further that, in considering whether there was any clear line of distinction between danger to health and to life, the jury should take ‘a reasonable view’ of the latter words.
‘Nine years ago Parliament passed an Act called the Infant Life (Preservation) Act, 1929 . . S1, subs-s1 of that Act provides that ‘any person who, with the 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.’ It is true, as Mr. Oliver has said, that this enactment provides for the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature; but in my view the proviso that it is necessary for the Crown to prove that the act was not done in good faith for the purpose only of preserving the life of the mother is in accordance with what has always been the common law of England with regard to the killing of an unborn child. No such proviso is in fact set out in s58 of the Offences Against the Person Act, 1861; but the words of that section are that any person who ‘unlawfully’ uses an instrument with intent to procure a miscarriage shall be guilty of felony. In my opinion the word ‘unlawfully’ is not, in that section, a meaningless word. I think it imports the meaning expressed by the proviso in s1, subs1, of the Infant Life (Preservation) Act, 1929, and that s58 of the Offences Against the Person Act, 1861, must be read as if the words making it an offence to use an instrument with intent to procure a miscarriage were qualified by a similar proviso.’
Macnaghten J
[1939] 1 KB 687
Infant Life (Preservation) Act, 1929, Offences Against the Person Act 1861 58
England and Wales
Cited by:
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CitedRoyal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
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CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
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Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.213664