The Return of Miscarried Foetus
Category : Blog Post
Date : 31 May, 2017

31 May, 2017

Terry Kaan

Blog post:
The distressing experience of the couple who is seeking the return of the remains of a 16- week-old foetus following a miscarriage exposes some gaps in the current law which need urgent resolution. The sticking point seems to be the refusal of the hospital to issue a Form 13 ‘Certificate of Still-Birth’ which is required for cremation or burial on the grounds that the foetus had not reached the 24-week mark. From the Hospital Authority’s perspective, a foetus must have attained a minimum gestational age of 24 weeks to qualify as a ‘still-born’ child.

Yet there is nothing in the enabling section for Form 13 (section 18 of the Births and Deaths Registration Ordinance) that requires the imposition of the 24-week rule, which seems to take its inspiration from the laws relating to abortion. Our abortion law does in fact make mention of a higher threshold for abortions after 24 weeks. But nonetheless, an abortion is still possible if ‘necessary to save the life of the pregnant woman’. And presumably at any time up to actual full term: for the reality is that the common law does not recognize the existence of the child in being as a full legal person until actual delivery.

The obvious mischief intended to be addressed by section 18 in requiring the Certificate of Still-Birth is to prevent the burial of victims of infanticide or illegal abortions under the guise of their having been still-born. It has nothing to do with whether the foetus has or has not reached the gestational age of 24 weeks.

The real legal and social significance of the abortion law provisions in our Offences Against the Person Ordinance is the recognition by the law that a foetus in the womb, although not yet a legal person, has a special legal, social and human significance that makes a miscarried foetus more than just ordinary clinical waste. Although without an independent legal identity and personality of its own until it is born, it is (in the words of the House of Lords in Attorney-General’s Reference (No. 3 of 1994)) ‘a unique organism’. So the law nonetheless gives special protection to the child in being that it does not extend to any other part of a person’s body. It recognizes that the special status of the foetus: not yet a legal person, but with future potential to be so.

And most fundamentally of all, it is clear the existing common law does not appear to permit a claim by any person or any entity to ownership of a dead body. It is not capable of being ‘owned’ in law in the same way as ordinary personal possessions that you or I (or the hospital) may buy and assert ownership in. In law, the physical body of a deceased person does not even form part of the estate of the deceased. For this reason, the executors or administrators of a deceased’s estate are free to dispose of the body in any legal and dignified way as they may think fit, even if the deceased had insisted on disposal in a specific way.

There is one exception to this. The common law recognizes that a person (or a hospital) may have a bare possessory right to human material on which skill and work has been invested.

For example, pathological specimens which have been carefully prepared and preserved for scientific study. But this bare possessory right is not the equivalent of legal ownership, and can only be asserted against persons without a better right.  It follows that the foetus does not naturally fall into this category obviously intended by the common law for the preservation of the priceless collections of prepared human material so painstakingly assembled by medical and scientific institutions for the advancement of medical knowledge. It may be added that, in this this day and age, such materials can only be acquired in the first place with the consent of the donors (if living), or the executors or administrators (if deceased).  Here the mother has not given her consent.

Indeed, it may be argued that in this particular situation, the mother never, in legal terms, abandoned her claim to the possession of foetus in the first place, thus negating any claim by the hospital to ‘ownership’ in the remains. A simple thought exercise will suffice: if I lose a finger in an industrial accident, there is no arguing that the finger is mine for the purpose of attempted re-attachment. The hospital receiving the severed finger cannot claim it for another person (assuming that such was possible in the first place). The fact of physical separation or alienation does not amount to legal abandonment of possession.

Finally, it should be conceded that hospitals do have a duty to ensure public safety in returning human specimens or remains. But hospitals routinely return the bodies of people who have died from infections or infectious diseases for cremation or burial. The principle is the same: if public safety is the concern, the remains of the foetus can be embalmed or otherwise deal with as the bodies of such people.

Ultimately, the law must recognize that we as humans make a clear distinction on social (and often religious) grounds between a miscarried foetus that is loved and deeply grieved for,  and cold clinical waste. Human dignity demands it. If the law or rules say otherwise, they need to be changed.



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