B.A. LL.B. (HONS.) IX SEMESTER
SUBJECT: Law And Morality
TOPIC: Hart Fuller Debate (Tussle Between Law and Moral Values)
UNDER THE GUIDENCE OF: SUBMITTED BY: Dr. A P Singh ANKIT KR MISHRA Professor ROLL NO. : 18 B.A. LL.B. (HONS.)
The debate about reconciling issues of law and morality is of ongoing interest to academics, practitioners and also ordinary people, whose lives may become inextricably entwined, through the legal process, with these issues. Law and the social structures in which it operates are variables which by necessity must interact. Neither can be understood in isolation from the other, and most legal systems are both discretionary and idiosyncratic of the particular society in which they operate. The discretionary element of legal systems has often been criticized for a number of reasons, not least the possibility of unfairness and inconsistency in judicial decisions making. There are also those who have emphasized the advantages that a discretionary legal system offers. For example, Hay (1975) argued that such discretion was an essential expression of the power of paternalism and that it could affect issues such as the ability to grant or deny mercy. Whilst there are those who would both agree and disagree with these sentiments, the long, often impassioned and certainly unconcluded debate about law and morality has continued. Whether one agrees or disagrees with Hay it is certain that no one interested in the relationship between law and morality can dismiss three of Hay's particular insights. Namely that; law enforcement can only be understood by placing it within an historically specific social and political context; an understanding of the functions of legal authority is necessary to any evaluation of the legal system and ; legal power and particularly the power of discretionary authority can be routinely manipulated to support those privileged by position.
Added to this, Moss (2006 & 2008) has emphasized that criminality itself is a flexible and rapidly changing concept. For example, if we ask the question ‘what is a crime?’ we could answer this by saying perhaps that it is an action prohibited by law or behaviour prohibited by a criminal code. If we ask a further question ‘what is a criminal?’ we might say a person who breaks the law or a person who has been convicted of a crime. However, we could also highlight what is wrong with these definitions. First, what is defined as crime or criminal can change over time. For example, law relating to homosexuality, to prohibition in the United States and also rape laws. Second, (and which fits in with Hay’s ideologies) what is defined as a crime is arguably more to do with a reflection of the interests of the powerful of the time and not necessarily to do with what is moral/immoral. Third, there are different perceptions of crime. For example those crimes we could collectively refer to as ‘not so bad’ and those we could say were ‘really bad’. For example, and generally speaking, most people (whether justifiably or not) might view tax fraud or speeding as not particularly serious crimes. Conversely crimes such as murder, rape or genocide are generally thought of as very serious. The result of this is that definitions of crime and criminals become very slippery because they change over time depending on changes in society. Accordingly, in most societies crime is viewed as a relative concept and criminality neither a wholly objective or subjective phenomenon but rather a subjective interpretation of objective acts. Law enforcement and the definition of criminality can therefore never be never neutral because they emanate from governments and thus they logically express the concerns of those pre-eminent in the social structure. Weber (1964) regarded the political systems of modern Western societies as forms of ‘legal domination’ with their legitimacy based upon a belief in the legality of their exercise of political power. Weber’s was a positivistic concept of law – meaning that law is precisely what the political legislator (whether democratic or undemocratic) enacts as law as long as it accords with legally institutionalised procedures. As such, Weber suggested that the law cannot legitimise itself by claiming that it has an alliance between law and morality. Rather, he suggested that law possesses its own rationality, independent of morality and that any assimilation of law and morality threatens the rationality of law and thus the legitimate basis of legal domination. So how does the law currently reconcile issues of law and morality and what do judicial decisions in these matters demonstrate to us about judicial understanding, its approach and its consistency?
RECONCILING ISSUES OF LAW AND MORALITY
One of the difficulties of reconciling issues of law and morality was highlighted by the Hart-Devlin debate which surrounded the legalisation of homosexuality between consenting male adults and which questions whether there is a role for law at all in matters of morality. Patton suggests that; “in all communities that reach a certain stage of development there springs up a social machinery which we call law. ... In each society there is an interaction between the abstract rules, the institutional machinery existing for their application, and the life of the people.”
McTeer also suggests that;
“Throughout history, law has played an important role in the definition and protection of certain relationships, systems and institutions and in the control of individual and collective human behaviour. Through the use of normative and prescriptive rules, supported by varying degrees of sanctions, law has been used to create a climate of social order, the usual justification of which has been that it benefits members of society.”
It is certainly the case that historically the law was seen as being inextricably linked with issues of morality since medieval law makers were seen to derive their authority directly from God as a ‘Divine Right.’ In this context laws were respected because they were seen to be connected in a fundamental way, with issues of morality. With the passage of time, the development of science and technology and other such significant changes in society such as a greater degree of secularity, the connection between law, religion and consequently morals has diminished. Today, there appears to be a more general acceptance that whilst there is not necessarily an interdependence between law and morality, it is still most people’s perception that the law should work in such a way as to protect society including certain moral aspects, although the morality of society is of course not a static notion.
Consequently as society’s moral outlook changes, so the law must change with it. The problem with this is how far should the law intervene in matters of morality or personal conscience before it becomes inappropriate? Where should the line be drawn between the legitimate role of the law in such matters – perhaps where it is deemed necessary to protect the public interest – and where issues should be left to an individuals own conscience? This is a particularly difficult question if one accepts that what might have been deemed an acceptable role for the law historically, would not, in the modern world, perhaps be thought of as such. Thus the debate itself is not a static one. In the UK, the Wolfenden Report (1957) was particularly influential in raising the profile of this debate some fifty years ago. The Report suggested that the law, which previously made consensual homosexual relations in private an offence should be changed, primarily because the suggestion was that the law had no part to play in decisions about morality. Subsequent to this, both Lord Patrick Devlin and Professor Herbert Hart engaged in the debate which has been discussed since by other authors such as George (1996) and Hittinger (1990).
The relevance of this is rooted in the issue of the enforcement of morality and what the basis of decisions should be in circumstances where there is a conflict between individual moral freedom and social control. Specifically within this debate, Lord Devlin addressed himself to two particular issues. First, he asked, has society the right to pass judgement on matters of morals and second, if society has this right, does it also have the right to use the law to enforce it? Devlin’s view was that the law should be able to intervene in matters of morality, in order to preserve what he called ‘society’s constitutive morality.’ In relation to the Wolfenden Report, Devlin claimed that homosexuality was a threat to society and as such it fell within the domain of public morality, on which the law should pass judgement to preserve social cohesion. Devlin claimed that in order to decide which rules of morality should be enforced a ‘feelings test’ should be applied in order to determine the potential for harm to an individual. Whilst Hart agreed with Devlin that if a threat existed, which was sufficient to challenge social cohesion and then the law ought to be able to intervene, he did not agree that homosexuality was an example of this and was clear about his view that in order to prove what constituted true threats to society, then empirical evidence was required. What appears to be the case with these respective positions is that both Devlin and Hart have inherently different values and this then informs each of their arguments in a different way as regards the enforcement of morals. This is precisely why the question of law and morality is so difficult since it must be attached to the current social condition, and the expectations and values of society, but social conditions are not constant. Thus we have a potentially continuous debate about the balance between law, morality, freedom and social control. Whichever position one takes in such matters, there will no doubt be some intellectual philosophy which will support it and in this sense, perhaps this dilemma can never be resolved by reason. For what might be one mans reason may well be another’s unreason. Moreover, and in line with the birth of the positivist paradigm within criminology, who should decide what is rational and for whom?
Whilst the debate about homosexuality, the law and morality has seemingly been and gone in liberal Western democracies apart from the USA, today’s societies face new dilemmas, resulting particularly from the developments of science and technology in numerous fields which pose new and unaddressed questions.
THE CHANGING FACE OF LAW AND MORALITY
Courts have been used over many years to making decisions which involve issues of law and morality. As society changes, so the stance the court takes must surely change too. It is possible to see these kinds of developments in previous legal cases. For example, in Knuller v DPP  HL, the defendant published a gay contact magazine and on the grounds that the court stated that it could indeed dictate morality, he was thereby convicted of committing the common law offence of ‘conspiring to corrupt public morals.’ Interestingly, in a previous case – that of Shaw (1962) - the existence of this offence had been held in question. In response to this, the House of Lords had held that the common law crime of ‘conspiracy to corrupt public morals’ did exist despite many commentators believing that it did not. Effectively what could be construed from this is that the House of Lords created this offence, presumably because they felt that it reflected their own, or society’s moral values at that time. Another point of interest is that Lord Reid had dissented in Shaw, and stated in a subsequent case that; “I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act.”
Clearly one of the most interesting and dynamic changes to the way in which courts are prepared to view the co-existence of law and morality surfaces in cases concerning marital rape which, prior to 1991 was not illegal. Specifically the case of R v R (which concerned the marital exemption from rape)  HL demonstrates the changing attitude of the court to this particular issue of law and morality. The defendant, who had been living apart from his wife, raped her in her parents’ home, which he had forcibly entered. The court held that a husband's 250 year old immunity from criminal liability for raping his wife should be abolished and that the long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate. In the course of hearing the case Lord Keith stated; "This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it"
It is clear from this statement that Lord Keith thought this was an example of the common law evolving in the light of changing social, economic and cultural developments. This shift has also been seen to affect other areas of morality as demonstrated by the case of Gillick v West Norfolk and Wisbech Area Health Authority  HL. This case concerned the issue of law and morality in relation to whether a doctor may give advice and treatment on contraception to girl under 16 without parental consent. In this case, Mrs Gillick - a Roman Catholic mother of five daughters - sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. It was argued on the one hand that teenage pregnancies would increase if the courts ruled that parental consent was necessary, but on the other hand that the judges would be encouraging under-age sex if they did not. By a majority of three to two the court held that a doctor could prescribe contraceptives to a girl under 16 to prevent damage to her health, even though he knew it would assist a man to have unlawful sexual intercourse. Further, the court stated that a child under 16 who can fully understand the implications of the proposed treatment (a "Gillick competent" child) could give her own consent to medical treatment. This case raises a moral question. Specifically, would such a doctor be guilty of aiding and abetting the commission of a crime – that of sexual intercourse under the age of 16? The rationalisation of the court was that; “Whether or not a doctor prescribing contraceptives to a girl under 16 was aiding and abetting the commission of the offence of unlawful sexual intercourse would depend upon his intentions.
Per Lord Fraser: Where a doctor provided contraceptives honestly intending to act in the best interests of the girl it was unlikely that he would be committing a criminal offence.
Per Lord Scarman: The bona fide exercise by the doctor of his clinical judgment of what was necessary for the physical, mental, and emotional health of his patient must be a complete negation of the guilty mind which was an essential ingredient of the criminal offence of aiding and abetting the commission of unlawful sexual intercourse.”
ADVANCES IN EMBRYOLOGY AND THE RESPONSE OF THE LAW
Recent advances in the science and technology of embryology and human fertilisation have naturally necessitated that the courts have been called upon to make difficult decisions concerning sensitive and often compelling cases of infertility or associated problems in women. One of the most well known cases in relation to this area is that of R v Human Fertilisation and Embryology Authority Ex p. Blood  CA which called upon the judiciary to deliberate upon issues of law and morality in relation to artificial insemination and the use of a dead husband's sperm.
The facts of this particular case were that Dianne Blood's husband, Stephen, contracted meningitis and lapsed into a coma. During this time, samples of his sperm were collected by electro-ejaculation for later use in artificial insemination. Her husband died shortly after the samples were obtained. The Human Fertilisation and Embryology Authority refused to give the necessary consent to her treatment for the artificial insemination of this sperm in the UK. They cited the Human Fertilisation and Embryology Act 1990 which required the written consent of a donor to the taking of his sperm. They also refused to authorise export of the sperm for treatment abroad. Mrs Blood challenged the decision of the Human Fertilisation and Embryology Authority but the court upheld their decision stating that medical treatment for a woman and a man together could not occur after the man who had provided the sperm had died. The absence of the necessary written consent meant that both Mrs Blood's treatment and the storage of her husband’s sperm were prohibited by the 1990 Act, and any exceptions in the Act did not apply.
However, subsequent to this decision and by virtue of articles 59 and 60 of the European Communities Treaty, Mrs Blood proved that she had a directly enforceable right to receive medical treatment in another member state, and the authority’s refusal to authorise the export of her husband’s sperm infringed that right since it made the fertilisation treatment she sought impossible. She subsequently used the sperm in a Belgium clinic and later gave birth to a boy, Liam. She had a second son Joel, by the same method.
This case is interesting not simply by virtue of the fact that both the opinions of the Human Fertilisation and Embryology Authority and the UK Court of Appeal were clearly inconsistent with European Community law but that this also gave rise to a further piece of legislation, namely the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. This Act allows mothers such as Mrs Blood, whose children were conceived after their father's deaths, a six-month ‘window’ in which to re-register their children's births.
It would appear in such cases, that the UK courts most certainly see themselves as having the authority and competence to judge both matters of law and morality and feel sufficiently able to make decisions on such matters which might realistically in a number of cases, be deemed matters of conscience. However, the following case demonstrates that unfortunately this does not appear to be an approach which is applied consistently in all cases.
The case of Re A (Children) (2000) CA concerned matters of law and morality in relation to the issue of conjoined twins. As we shall see from this judgment, and despite previous judgments that have been cited in which various courts have freely provided a decision in matters of morality, in this particular case the Court of Appeal claimed that it was ‘not a court of morals.’ In this case the twins ‘Jodie’ and ‘Mary’ had been born joined at the lower abdomen. Jodie's heart and lungs provided oxygenated blood for both and both would die shortly if nothing were done. If the twins were separated, Jodie had a good chance of a fairly "normal" life but the operation would cause the immediate death of Mary. The twins' parents opposed the separation for religious reasons. In judging the case, Ward LJ said the court was ‘not a court of morals’ and considered that the operation would be lawful self-defence – that is, the doctors would be coming to the aid of Jodie. Specifically he stated that; "Mary may have a right to life, but she has little right to be alive...[she] is killing Jodie... she sucks the lifeblood of Jodie. [Mary] will survive only so long as Jodie survives. Jodie will not survive long because constitutionally she will not be able to cope. Mary's parasitic living will be the cause of Jodie's ceasing to live."
Brooke LJ said there could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary's death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. So far as the law was concerned, the doctrine of double effect did not apply here because Mary's death would not be a side-effect of treatment that was in her best interests overall and the defence of necessity would prevail. Further he stated that;
'It has been said that there are three necessary requirements for the application of the doctrine of necessity. The act is needed to avoid inevitable and irreparable evil. No more should be done than is reasonably necessary for the purpose to be achieved. The evil inflicted must not be disproportionate to the evil avoided... I consider that all these requirements are satisfied in this case.'
As a result, permission to carry out the operation was granted and when performed Mary died as predicted. The court expressly stated that this case created no precedent for future cases. It is perhaps important at this stage to sum up the judgements in these cases and to ask, what do they tell us?
In 1973 the court states that it is capable of dictating morality and does so in a very strict manner. The decision made in the case of Knuller is one which would not be made today, given changes in the way society (and the law) views issues of public morality. This was a clear indication that the court did indeed see itself as a court of morals. Problematically in terms of understanding subsequent cases and the courts shifting approach to such matters, the interpretation of the court has inevitably not remained static. Whilst one might expect the law to be interpreted in a different way 35 years on from the case of Knuller, the changes that have taken place appear not to be altogether consistent. Regarding the issue of law and morality in the case of a dead husband – who was clearly not actually around to either give or withdraw consent - the decision of the UK court to disallow use of his sperm on the basis of morals and lack of consent, was subsequently held to be inconsistent with EC law and the issue of consent was therefore no longer relevant. Regarding the issue of law and morality in contraception, the court held that no parental consent was required for girls under 16 to access contraception. In 1991 we see a 250 year old outdated rape law amended in line with changing attitudes to morality. All of these cases could be interpreted as indicating that the courts have and currently do see themselves continuing to make judgments in a moral capacity. However, interestingly by 2000, in the difficult case of Jodie and Mary, the Court of Appeal states quite categorically that it is not a court of morals. Inevitably this has created some confusion from the point of view of the mixed messages that it appears to send out. So, are we to assume that in certain types of cases, the courts will decide that they have the capacity to make judgments about morals, but in other cases, they will decide they do not? How, therefore - and from the perspective of attempting to understand these issues - are we to determine in which cases the court will make judgements upon morals and in which cases they will not? More important, as science and technology develop, how is the law responding to this?
LAW, EMBRYOLOGY AND DECISION MAKING IN RELATION TO THE NEWLY POSSIBLE Against the background of the newly possible, it is relevant to focus on the case of Evans v United Kingdom . Having lost her ovaries to cancer treatment, previously stored embryos created from Ms Evans' eggs and her ex-partner's sperm represented Ms Evans' last chance to have her own genetic child. With the UK courts having denied her claim to use the embryos against her ex-partner's wishes, Ms Evans lawyers argued that the current Human Fertilisation and Embryology Act contravened the European Convention on Human Rights. However, the ECHR did not agree that UK law broke the right to a private and family life, granted under article eight. It also rejected Ms Evans claim that the law violated article 14, the right not to be discriminated against, as it hinged a possible pregnancy on her partner's consent. As a result the European Court of Human Rights decided by a majority of five to two that UK law did not breach her Convention rights and the fertilised embryos were duly destroyed. The Evans case is not unique. In Ireland, in MR v TR  another woman was similarly recently refused the right to use stored embryos against the wishes of her estranged husband. These two judgments highlight two important issues. First, the significance that the law has seemingly attached to the role of genetics in parenthood and second, the difficulty of achieving some sort of equality in balancing the competing interests of two potential parents. It also demonstrates clearly that the law appears to be able to make judgements in such matters which arguably are rooted in issues of morality, not just genetics and technology. What was interesting in both of these very difficult cases is that whilst the courts did not appear to have any difficulty with their right to sit in judgement of such matters, at the same time they did not give the fullest consideration to all of the relevant factors. For example, in both cases it seems to have been assumed that genetic links have the same psychological, social and moral significance for men and for women. But in terms of the respective roles of both fathers and mothers and the inherent differences that this has for each, can the courts really be certain that both male and female genetic interests are truly the same and should be treated by the law as such? These challenging cases have required the judiciary to make sense of the inherent meaning of the family, parenthood, gender, and reproduction. The question remains as to whether they are doing so consistently, fairly and rationally for parents of both genders.
The cases of Blood and Evans appear to establish that it is currently lawful to use a man’s sperm without his consent (clearly this will only occur after his death), but that it is not currently lawful to use frozen embryos without the same consent. Another much more recent case has re-emphasised this position. Templeton (2009) reports in February that another woman had recently won the right to conceive a child using sperm retrieved from her dead husband even though he did not give written consent during his lifetime. The woman, (L) who already had one child with her husband, will only be able to use the sperm abroad since it remains illegal to use it in the UK without written consent. She plans to travel to the US for treatment. The facts of this case - reported as L v HFEA  – note that the husband in question died unexpectedly following an appendectomy. On the basis that L and H had wished to have another child who would be a full sibling to their existing child, L obtained declaratory relief that it was lawful to retrieve sperm from H's body within 24 hours of his death and that the sperm was to be stored at a clinic or hospital until further order of the court. The gametes (sperm) were only retrieved and transferred to a clinic for storage. Section 4 of the Human Fertilisation and Embryology Act 1990 states that the storage and subsequent use (but not retrieval) of gametes can only be carried out pursuant to a licence issued by the HFEA. The clinic applied to the HFEA for permission to export the gametes abroad for L's use under section 24(4) of the Act, which provides that;
“ [the HFEA] may authorise any person to whom a licence applies … to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions.”
In November, the application for export was adjourned pending the ruling of the court as to the lawfulness of the gametes' storage. The first question was whether the continued storage of H's sperm was lawful and whether the Act's prohibition on storage for use in the UK without effective consent was in violation of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Part I of Schedule 1 to the Human Rights Act 1998). It was submitted that, although the margin of appreciation was wide, an absolute or ‘bright line’ based on effective consent produced such an anomalous result on the facts of the case, by precluding the storage and use of H's sperm, that it was not sustainable. The court further considered and gave its preliminary view on the issue of whether the requirements relating to effective consent as applied to storage pending export (or possible export) resulted in an unjustified interference with arts 49 and 50 of the EC Treaty. The court held  1 FCR 138 at 140, that; “The Act set an absolute, clear and bright line which prevented storage for use in the UK, and use in the UK, without effective consent. That was because there was no power given to the HFEA, or anyone else, to alter or mitigate the force of the provisions on the terms of licences relating to the need for such effective consent before gametes (and embryos) could be stored and used. Those terms precluded the storage and use of H's sperm in the instant case because he had not provided an effective (or indeed any express) consent to their storage and use after his death. Authority made clear that English courts should not apply the test of legitimate aim and proportionality to each different case relating to storage and use of gametes and embryos under the Act, and thereby seek to make potentially fine distinctions by reference to specific facts. Rather they should have regard to the reasoning of the European Court of Human Rights on the application of the margin of appreciation to see whether it assessed the issues as a general rule and not simply on the facts of the case and, if it did the former, whether the different situation in the later case could found a result that was so anomalous that it rendered that result and effect of the legislation incompatible. The circumstances of the instant case fell well short of founding an argument that the need for effective consent to storage in the UK, for subsequent use in the UK, was incompatible with the claimant's Convention rights. Accordingly, a declaration that continued storage of H's sperm was lawful would not be made.” It could be suggested that the facts of this case are similar to that of Blood. There is no consent in either case, but of course the position was supposed to have been clarified by the Deceased Fathers Act 2003. In that case it was argued that refusal would constitute a violation of the ECHR and unjustified interference with articles 49 and 50 of the EC treaty. The result was that L was given the green light by the Court despite the lack of consent. Interestingly also is the fact that there are aspects of the judgment which appear to indicate that under the HFEA 1990 section 24, the Authority has some considerable discretion. Does this mean that the Authority has been given the power to decide on the moral implications and the legality of using donor sperm for treatment abroad? Specifically the court commented  1 FCR 138 at 140 that; “In the context of storage for use outside the UK and subsequent use outside the UK it could not be said that the legislation set such an absolute, clear or bright line approach because of the discretion conferred by s 24(4) of the Act. As a matter of construction, the power conferred by that provision enabled the HFEA before and after retrieval to modify the conditions of the relevant licences (i)to permit storage in connection with a special direction allowing export, and (ii) to permit storage pending a special direction on storage, albeit that, having regard to the underlying purpose of the power ... it would only rarely, if ever, do so. Accordingly, although the practical effect of the Act was that, absent a special direction permitting storage for the purposes of export (or whilst a special direction on export was being considered), without effective consent such storage would be unlawful (and a criminal offence), parliament had given the HFEA a discretion which had the result that the Act itself did not infringe the relevant Treaty rights. The exercise of that discretion was governed by public law principles”
This case has resulted in the Human Fertilisation and Embryology Authority stating that it may have to review its procedures in relation to couples undergoing fertility treatment so that consent forms signed by such couples will specifically ask men if they agree to their sperm being retrieved or used after their death. An interesting feature of this case is that prior to having the court allow her request, this woman had already arranged for her dead husband’s sperm to be stored. Strictly speaking this was illegal as current law forbids this and Templeton (Sunday Times 1st February 2009) reports that; “In the latest case the High Court ruled this should never have happened. Once it had taken place, however, the HFEA made an exception for the woman and decided she should be allowed to use it. This case does not create a precedent either. A spokeswoman for the HFEA said: ‘The decision means the sperm may be stored at the clinic concerned for up to three months to allow time for export arrangements to be made.’ Previous legal battles have been fought over whether women can use embryos without the consent of former boyfriends or husbands.”
Does this suggest that an honest intention can negate criminal liability? It may well appear odd to most people reading these cases that the sperm can be used abroad but not in the UK. Whilst it is permissible, under the doctrine of the margin of appreciation, that UK courts are allowed some discretion as to how to interprete and apply the law - since it is well accepted that the European convention is not meant to set rigid and inflexible rules -and therefore there has to be some element of discretion allowed to member states in relation to how they interpret and apply the convention in a national context, the idea remains that maximum compliance from all parties about the general standards that the convention sets, should be sought. The margin of appreciation therefore reflects this ideal and means that there should only be conflict if there is less than substantial compliance. The margin of appreciation permitted also depends on the nature of each right or situation. Each is judged on its own merits and in some cases they will allow more flexibility than in others. For example, in the case of Handyside v UK  it was stated that more flexibility for member states to decide what they want in relation to issues such as public morality would be normal. However, this could also be compared with the stance that the European court took in the case of Goodwin v UK  35 EHRR 18. Goodwin was a United Kingdom citizen born in 1937 and was a post-operative male to female transsexual. G submitted that despite warnings from the Court as to the importance for keeping under review the need for legal reform the Government had still not taken any constructive steps to address the suffering and distress experienced by the applicant and other post-operative transsexuals. The lack of legal recognition of her changed gender had been the cause of numerous discriminatory and humiliating experiences in her everyday life. Having regard to the above considerations, the Court found that the UK Government could no longer claim that the matter fell within their margin of appreciation, and there were no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment. Therefore the court concluded that the fair balance that was inherent in the Convention now tilted decisively in favour of the applicant and that there was accordingly, a failure to respect her right to private life which was a breach of Article 8 of the Convention. Specifically the court commented that there was; A gap between social reality and the law in the UK;
It was strange that a country which gave gender reassignment surgery, then did not recognise that change in a person legally; There was clear evidence of this trend of recognising post operative transsexuals; There was no evidence that such recognition would damage the public interest. The decision in L v HFEA  which states that the sperm could be used abroad but not in the UK seems all the more at odds with modern thinking about public morality given the judgement in Goodwin.
THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008
Currently, the legal position in the UK is now governed by the Human Fertilisation and Embryology Act 2008 which received Royal Assent in November 2008. This Act is a result of a review undertaken by the Government of the law in this area, primarily in response to technological developments, such as new ways of creating embryos that have arisen since 1990, as well as changes in society. The Act updates the 1990 law to ensure that it is ‘fit for purpose in the 21st century and keeps the UK at the forefront of developments in treatment and research.’ The bulk of the Act will come into force in October 2009 although some of the provisions relating to parenthood came into effect in April 2009. In an attempt to reflect the law as a living instrument it now recognises same sex parents as the legal parents of children conceived through the use of donated sperm, eggs or embryos, since MPs voted to scrap the requirement that fertility clinics should consider "the need for a father" before allowing a woman to have IVF. This change should make it easier for lesbian couples and single women to have children, although at present, some clinics will only treat women in established heterosexual relationships. In relation specifically to single parents, whilst the Act itself does not make any formal statement regarding the issue of single parenting it does indicate the need to value the role of all parents by replacing the reference to "the need for a father" with "the need for supportive parenting". This retains the duty to take account of the welfare of the child when providing fertility treatment.
Of some interest is the Department of Health Impact Assessment (2008:26) which mentioned specifically the issue of the withdrawal of consent to embryo use for treatment and highlights a separate procedure for dealing with this which involves written notice; “...of any withdrawal of consent being received by the establishment storing the embryos, at which point the statutory storage period will cease to apply and a new one year storage period will take effect. The establishment will then notify the second gamete provider, as soon as possible, of the withdrawal of the first gamete provider’s consent. This provision will allow the embryos to remain lawfully stored while the parties, if they wish, attempt to reach a private resolution on the future of the embryos. If the second gamete provider does not agree to the embryos being removed from storage or simply does not respond to the notification, the embryos will remain in storage until the one year period expires. This policy does not discriminate against any person or group of people. The Government believes the use of an embryo in treatment should always require the consent of both gamete providers. The will allow a cooling off period for those involved to thoroughly evaluate their position regarding consent, whilst providing a clear cut off point for any change of mind.”
Do these statutory developments indicate that UK law is truly cognisant of single parenting and the balance between the respective rights of both men and women in relation to parenting?
There is a complex interaction between the impact of socio-economic changes and the categorization of illegal actions. This clearly makes issues of law and morality difficult to reconcile, particularly in sensitive cases where rights of conception are concerned. Whilst appreciating that such decisions are difficult for the courts, one might at the least look to the judicial system for some consistency of approach to such cases. The evidence presented in this paper suggests however that the law is inconsistent as a judge of morality. In certain cases such as those described herein in relation to the use of frozen embryos - the judiciary claim that they can justifiably make decisions based not solely on law but also on morality. In others - such as the case of conjoined twins - they clearly state that they are not courts of morals. The result is a mixed message.
Clearly, the law should be viewed as a ‘living instrument’, its interpretation moving in parallel with the passage of time and in keeping with accepted social practices and norms. The case of Goodwin establishes this thinking in relation to post operative transsexuals but the same approach is not evident in relation to the recognition of a woman’s right to conceive children. Case law has established that this right (if indeed it can be claimed as such) has evidently been subsumed by the male right to choose not to have children. But should the court have the right to judge whose wishes are more important – a woman’s or a man’s? And if they do so, on what basis do they make this decision? As most Judges are still white, middle class and male, should we be surprised that that previous decisions have favoured a masculine point of view? The precedents appear clear - that a man’s right to say no to children has been afforded greater credence than a woman’s right to bear children. The Evans decision - based on Hay’s insights - could be interpreted thus. This particular exercise of legal authority is firmly based in patriarchy since the Evans decision supports and protects the wishes of men who withdraw consent but not the rights or wishes of the unfertile mother who has no further choice in the matter. The apparent emotional detachment of the judiciary who sat on this tragic case is also clear. Such emotional detachment was probably a crucial prerequisite to a historical penal philosophy where legal interpretations would still enforce paternalism but are not in keeping with a twenty first century judicial philosophy. For Natalie Evans, her only chance to have children after cancer treatment was the embryos she and her partner had agreed to have frozen. It was not however her partner’s only chance but in spite of this, his wishes to destroy them overrode not only her rights but the rights of the embryos also.
The judiciary have been warned in cases such as Goodwin that there are already gaps between social reality and the application of law. Such gaps are clearly evident in the interpretation of the Evans case which fails to take account of a number of relevant issues. For example, what about changes in parenting techniques in the modern age? Courts have allowed same sex couples to adopt and cannot legally enforce the prohibition of lone parenting but have effectively done so in the Evans case. Added to this, the court dispenses with the need for consent when a sperm donor is dead, but consent remains the crucial deciding factor (but only for men) whilst they are still alive.
The question remains, how much, if at all, should the law involve itself with matters of morality, particularly if those issues directly affect inherent freedoms of conscience, religion, speech and liberty? There is currently not a particularly healthy or transparent debate ongoing in relation to these matters – with the possible exception of terrorism. But is this sufficient? As McTeer (1995: 903) rightly comments; “Failure to engage in this kind of debate may lead to a situation where the public discussion of the fundamental issues involved would stagnate at the level of slogans, as in the abortion debate. We must now find new processes and contexts for the resolution of issues which profoundly affect society. Otherwise, we will be faced with ad hoc public policy and legislation in an area of extreme importance to the integrity and freedom of both society and the individual.”
A final thought. Is a moral judgement in fact a pragmatic decision about social cohesion? If that is so, what happens in communities with diverse values and what is the link with the notion of mala in se? The cases we have looked at here necessarily imply that we have concentrated on the morality of the newly possible. Perhaps it was always and will always be the case that the newly possible strains moral precepts and therefore our interest should continue to focus on how the law responds to this and if it does so in an appropriate and socially or morally acceptable way.
1. Alexy, R. (1989) On Necessary Relations Between Law and Morality. Ratio Juris 2 (2) 167–183. 2. Alghrani, A. (2005) "Deciding the Fate of Frozen Embryos" Med. Law. Rev. 13, (2) 244-256. 3. Annett, T. (2006) Balancing the Competing Interest over Frozen Embryos: The Judgment of Solomon? A Commentary. Med. Law. Rev. 14,(3) 425-433. 4. Capron, A.M. (1992) Parenthood and Frozen Embryos: More than Property and Privacy. The Hastings Centre Report, Vol. 22, 1992. 5. Chan, S. & Quigley, M. (2007) Frozen Embryos, Genetic Information and Reproductive Rights. Bioethics 21, (8) 439. Department of Health (2008) Impact Assessment on the Human Fertilisation and Embryology Bill (2008) Version 3: 8 November 2007 available at www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Actsandbills/DH_080211 accessed 28 July 2009. Ford, M (2006) Evans v United Kingdom: What Implications for the Jurisprudence of Pregnancy? Human Rights Law Review 8, 171-184. George, R.P. (ed) (1996) The Autonomy of Law: Essays on Legal Positivism. Oxford, Oxford University Press. Habermas, J. (1986) Law and Morality The Tanner Lectures on Human Values. Delivered at Harvard University October 1 and 2, 1986 Translated by Kenneth Baynes, Boston University. Hay, D. (1975) "Property, Authority and the Criminal Law", in Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson and Cal Winslow, Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (London, 1975) 17-63. Hittinger, R. (1990) The Hart-Devlin Debate Revisited. Am. J. Juris. 35, 47. McTeer, M.A. (1995) “A Role for Law in Matters of Morality. “McGill Law Journal, 40, 893. Moss, K. & Stephens, M. (2006) Crime Reduction and the Law. London, Routledge. Moss (2009) Security and Liberty: Restriction by Stealth. London, Palgrave Macmillan. Patton, P. (1993) Nietzsche, Feminism and Political Theory. London, Routledge. Politics.co.uk (2008) http://www.politics.co.uk/news/health/medical-ethics/medical-ethics/uk-ivf-consent-laws-do-not-breach-human-rights-$470611.htm accessed August 11 August 2008 Robertson, J.A. (1989) Resolving Disputes over Frozen Embryos. The Hastings Center Report, 19, 6, 7-12. Shavell, Steven, (2002) ‘Law versus Morality as Regulators of Conduct’ American Law and Economics Review, 4, 2, 227-257. Templeton, S-K. (2009) “Widow to have Child by Dead Husband.” The Sunday Times, 1 February 2009. Weber, M. (1964) Wirtschaft und Gesellschaft (Cologne, 1964) 3, 2, 160ff. Wolfenden Report (1957) Report of the Committee on Homosexual Offences and Prostitution. London, HMSO. Woods, J. (2008) ‘Was it fair the child wouldn’t have a father?’ Daily Telegraph available at www.telegraph.co.uk/health/women_shealth/3355689/IVF-same-sex-couples-'Was-it-fair-the-child-wouldn't-have-a-father'.html Accessed 28 July 2009. Wright, K. (2008) “Competing Interests in Reproduction: The Case of Natalie Evans.” King's Law Journal, 19, 1.
Evans v Amicus Healthcare Ltd  2 FCR 530
Evans v UK  2 FCR 5
Gillick v West Norfolk and Wisbech Area Health Authority  HL 1 AC 112 Goodwin v UK  35 EHRR 18
Handyside v UK  1 EHRR 737
Knuller v DPP  AC 435
L v Human Fertilisation and Embryology Authority  EWHC 2149 (Fam) MR v TR  IEHC 221
Re A (Children)  CA EWCA Civ 254
R v Human Fertilisation and Embryology Authority, ex p Blood  2 FCR 501 R v R  1 AC 599
Shaw v DPP  AC 220
Human Fertilisation and Embryology Act 1990
Human Fertilisation and Embryology Act 2008
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