¹ For a general survey of the trend, see, e.g., Sarvis, B. and Rodman, H., The Abortion Controversy (New York, 1974)Google Scholar; cf. Williams, G., The Sanctity of Life and the Criminal Law (New York, 1957).Google Scholar

² See Roe v. Wade 410 U.S. 116 (1973) for the situation in the U.S. and the Abortion Act 1967, sec. 1(1) for that in England. In Israel the matter is governed by secs, 312–321 of the Penal Law, 1977 (L.S.I. Special Volume).

³ A comparative study initiated by the World Health Organization discloses that only in two countries did the law require the husband's consent as a precondition for an abortion—in Japan (unless he cannot be located or has died or refrained from expressing his view on the matter) and in Morocco (when the cause fcr abortion is that it is necessary for the woman's health, as opposed to the pregnancy endangering her life) : WHO, Abortion Laws: A Survey of Current World Legislation (Geneva, 1971) 14.Google Scholar

⁴ Ubi supra, at 166. See also the companion case of Doe v. Bolton 410 U.S. 179 (1973). Note that under U.S. law the woman's right is a liberty and not a claim-right in the Hohfeldian sense: see Williams v. Zbaraz 100 S.Ct. 2694 (1980) and Harris v. MacRae 100 S.Ct. 2701 (1980) where it was held that the woman's right to abortion does not impose any correlative duty on the state to finance the operation.

⁵ Ubi supra, at 154 and 165 (n. 67). The question was not in fact relevant on the facts: in Roe the woman was unmarried and in Doe the application to allow abortion was made jointly by the husband and the wife.

⁶ 428 U.S. 52 (1976).

⁷ At 69, 90 and 93.

⁸ Cf. Tribe, L.H., “Toward a Model of Roles in the Due Process of Life and Law,” (1973) 87 Harv. L.R. 33–37Google Scholar; Siliciano, J.A., “The Minor's Right of Privacy,” (1977) 77 Colum. L.J. 1216, 1234–48.CrossRefGoogle Scholar

⁹ [1978] 2 All ER 987.

¹⁰ Nor has the woman any express statutory right “but obviously the mother is going to be right at the heart of the matter consulting with the doctors if they are to arrive at a decision in good faith” (at 991).

¹¹ (1981) 35 (iii) P.D. 57.

¹² Per Shamgar J., at 63. See also per Ben-Ito J. at 83. Elon J., who opposed disallowing the injunction, also acknowledged that the statute itself did not require the man's consent to termination of the pregnancy (pp. 90–91).

¹³ Ben-Ito J. at 86, 87. Shamgar J. qualified the committee's discretion in this regard by two conditions: (1) that it should not be restricted by allowing the man to have his say so as to frustrate the very purpose of its establishment; and (2) that it should adopt a procedure to avoid any adverse effect upon the woman's statutory status—for instance, by ensuring her presence when the man is heard and giving her the opportunity to reply (p. 67).

¹⁴ “Except in those instances where the circumstances justify a decision being made without first hearing the husband” (p. 88).

¹⁵ The “representative” argument was rejected in Paton, op. cit., supra n. 9 at 989–90, as well as in A v. B, op. cit. supra n. 11 at 68–71.

¹⁶ This solution was suggested by Purdy, L.M., “Abortion and the Husband's Rights: A Reply to Wesley Teo” (1976) 86 Ethics 247CrossRefGoogle ScholarPubMed. Its advantage is conspicuous in that it minimizes the possibility of the birth of an unwanted child with all the attendant psychological implications.

¹⁷ See, e.g., Teo, Wesley D., “Abortion: The Husband's Constitutional Rights” (1975) 85 Ethics 337 at 340.Google ScholarPubMed

¹⁸ 316 U.S. 535 (1942).

¹⁹ Instances may occur in which the liberty to procreate cannot be distinguished from the claim-right to procreate, e.g., where after the woman became pregnant the husband was found to have become sterile. Here the man might have a strong case to compel the woman to continue her pregnancy. However, in the absence of a “commitment” relationship, even in such an instance there appears to be no case for acknowledging a right to procreate from a particular woman.

²⁰ Purdy, op. cit. supra n. 16 at 248.

²¹ Although certain methods of sterilization are reversible, this involves a complicated operation, the success of which is not certain. See Williams, op. cit. supra n. 1 at 74–75.

²² See, e.g., Murray v. Vandevander 522 P. 2d 302 (1974) where the husband claimed damages for the sterilization of his wife without his consent on the grounds of his right to procreate. He also made claim to a right to a “fertile wife” deriving from the marital relation. The action was dismissed.

²³ The relevant provisions in Israeli law are sec. 378 of the Penal Law, 1977 and sec. 23 of the Civil Wrongs Ordinance (2 L.S.I. [N.V.] 5).

²⁴ The old approach that the wife is the property of her husband and her body, accordingly, subject to his control was rejected at the beginning of the present century: see, e.g., Burroughs v. Crichton 4 A.L.R. 1529 (1919).

²⁵ Kritzer v. Citron 244 P. 2d 808 (1950); Murray v. Vandevander, supra n. 22; Rosenberg v. Feigin 260 P. 2d 143 (1953).

²⁶ Buck v. Bell 47 S. Ct. 584 (1927); In re Moore 221 S.E. 2d 307 (1976); In re D [1976] Fam. 185.

²⁷ Williams, op. cit. supra n. 1 at 80–82.

²⁸ In re Moore, ubi supra at 309.

²⁹ Neither Israeli nor English law contains express provision prohibiting “convenience” sterilization. Lord Denning was of the opinion that this was a common law crime, because a person cannot lawfully consent to an operation without special cause since such consent is no defence when the offence affects the public interest: Bravery v. Bravery [1954] 3 All E.R. 59, 67. Williams, op. cit. supra n. 1 at 106–8, takes a contrary view.

³⁰ The courts have held that no distinction is to be made between abortion and sterilization, and between these and ordinary operations. Thus the policy of a hospital not to carry out “convenience” sterilizations was held to be unconstitu tional in Hathaway v. Worcester City Hospital 475 F. 2d 701 (1973). In Ponter v. Ponter 342 A. 2d 574 (1975) the New Jersey Supreme Court held that among the absolute constitutional rights which a woman now enjoys is “the right to procure an abortion or other operation without her husband's consent. A natural corollary of these rights is a right to be sterilized without her husband's consent”. Note, however, that the man's status in sterilization is inferred from his status in abortion under Roe and Danforth, which is the very question under consideration in this study. Nevertheless, the denial of status to the man in sterilization can be clearly justified in terms of the exclusive right of the woman to control her physical being, as indeed the court did in other passages of its judgment.

³¹ Ponier v. Pouter, ubi supra. The court thought that the sterilization decision should ideally be a joint one but that the only available legal relief in case of disagreement was dissolution of the relationship through divorce.

³² Coe v. Bolton, not reported, but cited extensively in George, H.G., “Sterilization: Who Says No?” (1978) 29 Mercer L.R. 821Google ScholarPubMed at 832–34. Here the court struck down a statute which required the husband's consent to voluntary sterilization, holding that the right to procreation under Skinner v. Oklahoma, ubi supra, was limited to cases of ‘forced” sterilization without sufficient cause, and that state interven tion in voluntary sterilization was a wrongful invasion of privacy. The minority thought that sterilization differed from abortion in being irreversible and did not therefore come within the protected sphere of individual privacy. Failing a full report of the judgment, it is possible that the majority opinion was based on the logical error of Danforth in deriving the man's standing in the steriliza tion decision from that of the state. As was noted above, freedom from state intrusion in the decision-making process does not foreclose intervention in order to pronounce on differences between the spouses over the matter. The effect, however, of the judgment is to be welcomd since, in our opinion, the right to procreate from a particular woman should not be recognized as a matter of policy, certainly not in the circumstances of this case.

³³ Williams, op. cit. supra n. 1 at 77, 102.

³⁴ Ibid. at 34–46.

³⁵ Sarvis and Rodman, op. cit. supra n. 1 at 133–51. Objection to abortion, as opposed to contraception, does not rest on cogent health considerations. From the woman's viewpoint abortion possesses advantages over contraception; it is completely effective, available after conception and far simpler technically than mechanical or chemical contraceptives.

³⁶ Prophylactics are freely available, whilst other means are obtainable only on prescription or on the advice of a family planning clinic. The cost falls on the individual and is not covered by the usual health insurance funds.

³⁷ 14 L.Ed. 2d 510 (1965). The question whether a state may prohibit or restrict the distribution of contraceptives was not in issue.

³⁸ 31 L.Ed. 2d 349 (1972) at 362.

³⁹ A related question is whether a minor's right to obtain and use contraceptives may be made conditional upon the parents' consent or consultation with them. In the case of minors, special considerations have their place. As parens patriae the state has the traditional role of protecting their interests; there is a problem of legal capacity, especially where an act may have significant implications which a minor might not evaluate properly; and the state also has an interest in maintaining the traditional family unit and the notion of parental authority for its social value in the education of potential citizens. In the U.S. there is a further question as to the minor's rights under the Constitution. In Doe v. Irwin 428 F. Supp. 1198 (1977), a state-financed clinic was required to inform parents of their child's request for contraceptives. This requirement was upheld since it protected the parental right to give moral, psychological and physical guidance to children and the legitimate interest of a parent to participate in important decisions of their minor children. Cf. Note, “Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy” (1975) 88 Harv. L.R. 1001; Siliciano, J. A., “The Minor's Right of Privacy” (1977) 77 Colum. L.R. 1216.CrossRefGoogle ScholarPubMed

⁴⁰ Sec. 14 of the Israeli Capacity and Guardianship Law, 1962 (16 L.S.I. 106) provides that “parents shall be the natural guardians of their minor children”. Likewise sec. 3 (a) of the Women's Equal Rights Law, 1951 (5 L.S.I. 171), states under the marginal heading of “Equality in respect of guardianship” that “both parents are the natural guardians of their children”.

⁴¹ See, for instance, sec. 15 of the Capacity and Guardianship Law.

⁴² The argument may take the extreme form of claiming the father's right to custody of the fetus. See Bradley, D.C., “A Woman's Right to Choose” (1978) 41 Mod. L.R. 365CrossRefGoogle ScholarPubMed; Kennedy, I. M., “Husband Denied a Say in Abortion Decision” (1979) 42 Mod. L.R. 324Google Scholar. Note that the husband's claim to standing in the abortion decision as representative of the fetus was rejected both in Paton and A v. B. ubi supra.

⁴³ See, e.g., Roth, A., “The Tender Years Presumption in Child Custody Disputes” (1977) 15 J. Fam. L. 423, 425–28.Google Scholar

⁴⁴ For Israel, see the Report of the Committee to Inquire into the Adoption of Children Law (Ministry of Justice, 1980) 19, 20; A v. A.G. (1979) 33 (iii) P.D. 524, 529. Generally see Justice, , Parental Rights and Custody Suits (London, 1975) 5–25Google Scholar; Eekelar, J.M., “What are Parental Rights?” (1973) 89 L.Q.R. 210.Google Scholar The right, for instance, to raise the child is the freedom to exercise certain powers so as to fulfil the duty of caring for the child's physical and mental well-being that ensues from the principle of the child's welfare and society's interest in the child growing into a socially responsible adult. The right to educate is taken as the parent's duty to utilize the educational facilities that society makes available and to choose among the alternatives.

⁴⁵ See, for instance, Burt, R.A., “The Constitution of the Family” (1979) S.Ct.Rev. 329, 343–44.Google Scholar

⁴⁶ Goldstein, J., Freud, A., Solnit, A.J., Beyond the Best Interests of the Child (London, 1973) 11–13.Google Scholar

⁴⁷ Ibid., at 12–13, 17–21. The development of children in institutions exemplifies the need for a psychological bond with those talcing care of them; the frequent lack of such a bond results in retarded mental and emotional growth and problems of socialization in adulthood.

⁴⁸ See the Israeli Committee's Report, ubi supra, at 25, n. 3, citing an English authority to the effect that treating the blood link as a myth and stressing psychological parenthood have today become rooted in intellectual understanding. There is also the view that psychological rather than biological parenthood should enjoy legal protection as a natural right: see Meunch, J. H. and Levy, M. R., “Psychological Parentage: A Natural Right” (1979) 13 Fam.L.Q. 210.Google Scholar But what is the solution where a child has been kidnapped from its biological parents and brought up by strangers and, despite the parents' strenuous efforts to locate their child, it has remained sufficiently long with the foster parents for a psychological bond to be established between them?

⁴⁹ Goldstein et al., op. cit. supra n. 46 at 49–64, even suggest replacing the test of the child's best interests with that of the least detrimental alternative, which shifts the emphasis to the present distress of the child, the limitations of the decision makers in foreseeing future events and the narrow scope of possible assistance to the child.

⁵⁰ See A v. B, ubi supra, at 82–83 per Ben-Ito J.; O'Neill, T. and Watson, I., “The Father and the Unborn Child” (1975) 38 Mod. L. R. 174, 182–84.CrossRefGoogle ScholarPubMed

⁵¹ Kinney, L.H., “Legal Issues of the New Reproductive Technologies” (1977) 52 Cal. S.B.J. 514Google ScholarPubMed; Smith, G. P. II, “Through a Test Tube Darkly: Artificial Insemination and the Law” (1968) 67 Mich.L.R. 127, 130.CrossRefGoogle Scholar

⁵² Williams, op. cit. supra n. 1, at 113–14. Kinney, op. cit., at 514, draws attention to the problems of legitimacy and succession that may arise where the woman becomes pregnant after her husband's death through artificial insemination with frozen sperm. A different kind of problem was dealt with in L. v. L [1949] 1 All E.R. 141, where an English court allowed an action for annulment of marriage on grounds of the husband's impotence, despite the fact that the wife had been inseminated with his sperm.

⁵³ A California court rejected a suit in divorce on grounds of adultery, because the person effecting the AID might be a woman physician or the husband himself and the donor might not have any physical contact with the woman: People v. Sorenson 25 A.L.R. 3d 1093 (1968). Generally on the question of adultery, see Williams, op. cit. supra n. 1, at 122–24.

⁵⁴ The general view in the U.S. is that the child is considered legitimate: cf. Gursky v. Gursky 242 N.Y.S. 2d 406 (1963) with Strnad v. Strnad 78 N.Y.S. 2d 390 (1973); In re Adoption of Anonymous 345 N.Y.S. 2d 430, 435 (1973); and Sorenson, ubi supra. There are further aspects to the question of legitimacy—can one rebut the legal presumption that the child of a marriage is the child of the husband? See Shifman, P., “Determination of Paternity of a Child Born Through Artificial Insemination” (1980) 10 Mishpatim 63, 80–84Google Scholar and Kinney, op. cit., supra n. 51 at 515. Does the child need to be formally adopted by the husband and is the consent of the donor necessary? See Williams, op. cit. supra n. 1 at 121 and In re Adoption of Anonymous, ubi supra.

⁵⁵ In Israel no distinction is made between legitimate and illegitimate children. The general trend throughout the world is to do away with this distinction in the interests of the child and in view of the weakening of the institution of marriage and traditional sex roles. A new legal institution seems to be emerging, that of “parentage”, irrespective of the personal status or sex of the parents; see B. Meteyard, “Parenthood and Marriage” (1980) 10 Fam. Law 206.

⁵⁶ See e.g. Mazen, , “L'insémination artificielle, une réalité ignorée par le législateur”, (1978) 22 Semaine Juridique 2989.Google Scholar [I am indebted to Dr. P. Shifman of the Hebrew University for this reference.]

⁵⁷ In Gursky, ubi supra, the duty of maintenance was held to arise under implied contract. In Sorenson, ubi supra, it was held to derive not from contract but status—a person consenting to the creation of a child cannot blow hot and cold as he pleases, and the arrangement must possess some permanency. In Salma v. Salma (1980) 34 (ii) P.D. 799, the duty to maintain rested on sec. 3(a) of the Family Law Amendment (Maintenance) Law, 1959, (13 L.S.I. 73) which provides that “a person is liable for the maintenance of … the minor children of his spouse in accordance with… the personal law applying to him”. In Jewish law the duty arises under the law of charity. The court also held that after dissolution of the marriage, the husband's duty is implied from his consent to AID, referring to the two above-mentioned U.S. decisions. In Strnad, ubi supra, the court grounded its decision as to the right of access on the child's welfare and the argument that the husband is at the least entitled to the rights of an adopter. In In re Adoption of Anonymous, ubi supra, it was held that where the husband consents to AID, no distinction will be made between such child and one “naturally” born, and the husband's consent is required for adoption of the child by the mother's new spouse.

⁵⁸ Under Israeli law, however, the husband's duty of child maintenance might derive from the marital relation, and in any case the husband's conduct after the child's birth could give rise to a legal parent-child relationship. See Shifman, op. cit. supra n. 54 at 77, and G.P. Smith II, op. cit. supra n. 51 at 145. Under Israeli administra tive regulations the consent of both spouses is necessary for insemination. According, however, to Shifman, who cites these regulations in an appendix to his article, they are not enforceable since they have not been officially published as required. In this regard a parallel seems to exist between artificial insemination and one aspect of the man's status in abortion: just as the husband's consent is required for his wife's insemination, his consent to the continuation of pregnancy should also be required. This argument was disposed of above at p. 383. The two situations are also essentially different: in AID the man's consent is required for the actual impregnation, whereas in abortion it is for the continuation of an existing pregnancy; the man's interest in not having his wife give birth from a stranger may be stronger than his interest in not having her bear a child from himself; the state's interest in AID is to avoid infertile marriages so as to preserve the marital bond and family unity, an interest not served when AID is effected without the husband's consent, but this consideration is not similarly applicable in the abortion case.

⁵⁹ Reg. 26 of the Israeli administrative regulations prescribes the secrecy of the identities of donor and spouses; reg. 9 provides for two separate files: one of donors (name, identity number and date of donation) and one of sperm (blood type, pigmentation of skin and hair, Rh and month of donation). The latter alone is available during actual insemination. Furthermore, medical practice is to inseminate with sperm from several donors, sometimes including the husband. Shifman, op. cit. supra n. 54 at 67–75; Williams, op. cit. supra n. 1 at 120; Smith, L.A., “Artificial Insemination: Disclosure Issues” (1979) 11 Colum. Human Rights L.R. 87.Google ScholarPubMed

⁶⁰ Sorenson, ubi supra, 1098. The parallel between donation of blood and of sperm is not complete, since the former has no genetic projections. Note, in this respect, reg. 27 of the Israeli administrative regulations, containing screening provisions for avoiding possible genetic complications resulting from AID.

⁶¹ For the approach of the Catholic Church, see Smith, G.P. II, “A Close Encounter of the First Kind: Artificial Insemination and an Enlightened Judiciary” (1978) 17 J. Fam. L. 41, 45, 46.Google ScholarPubMed

⁶² The Israeli regulations do not expressly restrict artificial insemination to married couples, but it is implied from regs. 19, 22–26.

⁶³ C.M. v. C.C. 377 A. 2d 821 (1977).

⁶⁴ See, for instance, sec. 8 of the Adoption of Children Law, 1981 (S.H. 293).

⁶⁵ Ibid., sec. 13. The matter is similarly regulated in other legal systems, for which see Shifman, P., The Adoption of Children in Israel (Jerusalem, 1977)Google Scholar; A v. A (1978) 33 (iii) P.D. 225, 233 et seq.

⁶⁶ Shifman, op. cit., 77–78; A v. A, ubi supra; A v. A.G. ubi supra; A.G. v. A (1981) 35 (iii) P.D. 141.

⁶⁷ 405 U.S. 645 (1972).

⁶⁸ 434 U.S. 246 (1978).

⁶⁹ 99 S. Ct. 1760 (1979).

⁷⁰ Shifman, P., “The Status of the Unmarried Parent in Israel” (1977) 12 Is. L.R. 194.CrossRefGoogle Scholar

⁷¹ The earlier Adoption of Children Law, 1960 (14 L.S.I. 93) did not contain such a provision. (Sec. 11 rendered consent unnecessary when “the parent is unable to express his opinion or there is no reasonable possibility of ascertaining his opinion”. This provision, intended for cases of mental and intellectual incapacity, was extended by the Supreme Court to cases where the mother refused to disclose the identity of the father: A and B v. A.G. (1974) 28 (ii) P.D. 169).

⁷² Englard, I., “The Adoption of Children in Israel — the Practical Implementation of the Law” (1968) 1 Mishpatim 308, 319.Google Scholar

⁷³ See also Shifman, op. cit. supra n. 70 at 200–1.

⁷⁴ See, for instance, sec. 25 of the Capacity and Guardianship Law, 1962. Under Jewish Law also there is the rule that children up to the age of six years stay with the mother: B. Schereschewsky, Family Law in Israel (Jerusalem, 1968) 377. A bill tabled in 1980 proposed to set the doctrine aside because of its conflict with the child's-welfare principle and sexual equality.

⁷⁵ King, H., “Maternal Love—Fact or Myth?” (1974) 4 Fam. Law 61Google Scholar; Jones, C.L., “The Tender Years Doctrine: Survey and Analysis” (1978) 16 J. Fam. L. 695Google Scholar; Roth, op. cit. supra n. 43. A Bill for the amendment of the Capacity and Guardianship Law would repeal the provision of sec. 25, on the grounds that it is contrary to the child's welfare and the principle of equality between the sexes.

⁷⁶ Rossi, A.S., “A Biosocial Perspective on Parenting” (1977) 106 Daedalus 1.Google ScholarPubMed

⁷⁷ Maidment, S., “Child Custody: What Chance for Fathers?” Forward From Finer (London, 1981, no. 7) 3–1, 7–8.Google Scholar

⁷⁸ A v. A, ubi supra, at 73; Paton, ubi supra, at 990–91.

⁷⁹ At 74, per Ben-Ito J. Shamgar J. confirmed the District Court finding that “in view of the given facts one cannot speak of a contract at all, but of a declaration of intent which cannot serve as grounds for an action”.

⁸⁰ In view, however, of the spread of extra-marital cohabitation, many American states extend legal enforcement to written and verbal property agreements between unmarried couples who live permanently together, provided they are not based exclusively on the “provision” of sexual “services”: Madison, C. W., “Marital and Non-marital Relationships: The Right to Alternative Lifestyles” (1980) 11 Colum. Human Rights L.R. 189.Google Scholar For the view that the personal rights of unmarried partners should also be recognized, see Mead, D., “Consortium Rights of the Unmaried” (1981) 15 Fam. L. Q. 223.Google Scholar

⁸¹ See e.g. Tedeschi, G., “Crisis of the Family and Attitude of the Orthodox,” in Studies in Law in memory of Abraham Rosenthal (Jerusalem, 1964) 282.Google Scholar

⁸² Clark, H.H., The Law of Domestic Relations (St. Paul, Minn., 1968) 261Google Scholar; Bromley, P.M., Family Law (London, 1976) 111, 113, 122.Google Scholar

⁸³ Schereschewsky, op. cit. supra n. 74 at 105–6, 180, 191, 288–92, 296, 303–5. The Women's Equal Rights Law of 1951 abolished a husband's right to the income of his wife's property.

⁸⁴ Although there is support for the view that under Jewish law the husband's consent to abortion is required, this derives from the notion of the child as the father's property and not from the marital relation: Sinclair, D.B., “The Legal Basis for the Prohibition of Abortion in Jewish Law” (1980) 15 Is.L.R. 109, 111.CrossRefGoogle ScholarPubMed

⁸⁵ See Doe v. Doe 62 A.L.R. 3d 1082, 1088 (1974).

⁸⁶ Balfour v. Balfour [1919] 2 K.B. 571, 578–79, per Lord Atkin.

⁸⁷ Where the spouses have ceased to live together in anticipation of divorce, the assumption of unity is weakened. In case of an agreement between such spouses, there is a similar weakening in the presumption regarding the lack of intention to create legal relations in the absence of express stipulation and the burden of proof rests upon the party pleading a binding contract: Richards, M.E., “Intention to Create Legal Relations” (1971) 1 Fam. Law. 114.Google Scholar

⁸⁸ Balfour v. Balfour, ubi supra, at 577 per Lord Duke.

⁸⁹ Jones v. Smith, Fla. App. 278 So. 2d 339, 343 (1973).

⁹⁰ Some urge that consideration is the criterion for the validity of a contract: Richards, op. cit. supra n. 87 at 114.

⁹¹ See, for instance, sec. 3 (2) of the Contracts (Remedies for Breach of Contract) Law, 1970 (25 L.S.I. 11).

⁹² In Israel, to hand over a child to a voluntary surrogate mother (or for that matter to any one) is forbidden unless effected under authority: sec. 33, Adoption of Children Law, 1981.

⁹³ Erickson, E.A., “Contracts to Bear a Child” (1978) 52 Cal. L. R. 611, 613.CrossRefGoogle Scholar

⁹⁴ Cusine, D. J., “Womb-Leasing: Some Legal Implications” (1978) 128 New L.J. 824.Google Scholar

⁹⁵ A v. A, (1976) 31 (iii) P.D. 85, 93, 95 per Shamgar J. This case dealt with an unmarried father abrogating under contract his duty to pay maintenance. Shamgar J. invalidated the contract on grounds of public policy. The two other judges (Etzioni and Asher) did not find it necessary to invoke the public policy test and set aside the contract on the decided rule that a contractual obligation of indemnity will not take effect in so far as its implementation will affect the child's welfare (at 98–99).

⁹⁶ Erickson, op. cit. supra n. 93 at 613–14. The advantage of a contract to bear a child lies in the inherent genetic and emotional bond between husband and child.

⁹⁷ Many other interesting questions occur in this connection; in what manner may the spouses restrict the freedom of the surrogate mother during pregnancy as regards diet, medication and so on? If the fetus is found to be deficient in some way, can the spouses compel her to have an abortion? May she have an abortion without the spouses' consent for reasons of health? What will happen if the spouses refuse to receive the child after birth or if the surrogate mother refuses to surrender the child? See Erickson, op. cit. supra n. 93 at 616–21; Kinney, op. cit. supra n. 51 at 518.

⁹⁸ The alternative remedy of damages may be available for the actual expenses incurred by the spouses in financially supporting the surrogate mother or paying for her medical care during pregnancy, etc. The damage arising out of the abortion itself is not pecuniary and the only possibility is to obtain penal or exemplary damages in so far as these are at all available. Such damages are not available in Israel for breach of contract: Yadin, U., The Contract (Remedies for Breach of Contract) Law, 1970: A Commentary (Jerusalem, 1973) 74.Google Scholar

⁹⁹ It may be noted that sec. 10 of the Adoption of Children Law allows a mother to resile from consent to adoption given before the child's birth.

¹⁰⁰ Sec. 3 of the Adoption of Children Law, 1981.

¹⁰¹ See the statistical data given by Maidment, op. cit. supra n. 77; L.M. Purdy, op. cit. supra n. 16 at 250.

¹⁰² “Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future … to abandon educational plans, to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing child care….” Per Douglas J. in Roe v. Wade, ubi supra, at 214–15. See also per Blackmun J. at 153.

¹⁰³ Goldstein et al., op. cit. supra n. 46 at 20–21; Williams, op. cit. supra n. 1 at 218–19.

¹⁰⁴ A custody agreement between the parents is not an ideal solution from the viewpoint of the child. To the extent that either parent may subsequently have a change of mind, the continuity of the relation betwene the child and the caretaking adult is threatened—a matter vital to the desirable psychological bond: Goldstein et al., op. cit., supra n. 46, at 5–7, 31 ff.

¹⁰⁵ A similar but less detailed example is given by Margolis, J., “Abortion” (1973) 84 Ethics 51, 59.CrossRefGoogle ScholarPubMed

¹⁰⁶ Note that in A v. B, ubi supra, the court's ruling denying the husband standing was based on considerations of statutory interpretation, efficient administrative functioning and a general balancing of the opposing interests. In fact the particular ground on which the wife's application for abortion was approved by the statutory committee is mentioned nowhere.

¹⁰⁷ In the U.S.A. most pre-reform statutes contained an express exception—“unless the abortion shall have been necessary to preserve the life of the woman”: Sarvis and Rodman, op. cit. supra n. 1 at 29–34. No such express exception was found in pre-reform English and Israeli legislation, but it was inferred in case law from the general principles of the criminal law: R v. Bourne [1939] 1 K.B. 687; Horwitz v. A.G. (1953) 7 P.D. 469. The notions of self defence and necessity also appear in Jewish law: D.B. Sinclair, op. cit. supra n. 84 at 121 ff. Catholic doctrine also recognizes an exception to the prohibition of abortion when the danger to the woman's life does not stem from the pregnancy and the sole way of saving her is to destroy the fetus, i.e., provided that there is no “direct” intention to destroy the fetus. Here the exception is based on the doctrine of “double effect” rather than self defence or necessity: Finnis, J., “The Rights and Wrongs of Abortion” (1973) 2 Phil, and Pub. Affairs 117Google ScholarPubMed; Noonan, J. T., “An Almost Absolute Value in History” in The Morality of Abortion (Noonan, J. T., ed.) (Cambridge Mass, 1970) 1CrossRefGoogle Scholar; Williams, op. cit. supra n. 1 at 192–206.

¹⁰⁸ In R v. Bourne, ubi supra, the exception was restricted to preservation of the woman's life, but in the judge's instruction to the jury it is stated at one point that they should consider whether “the continuance of the pregnancy would make the patient a physical or mental wreck”. Williams, op. cit., supra n. 1 at 694 construes this as referring to physical or mental injury likely to shorten life. Note, however, the facts of the case: a minor became pregnant as a result of a gang rape and the doctors' recommendation to terminate the pregnancy arose out of consideration for the victim's physical and mental health. In Horwitz the Court, relying on Bourne, formulated the exception in the following terms: “Whether … [the operation] was carried out in good faith and with the purpose of saving the woman's life or preserving her health” (emphasis added), ibid., at 466.

¹⁰⁹ Guttmacher, A.F., “The Shrinking Non-Psychiatric Indications for Therapeutic Abortion” in Abortion in America (Rosen, H., ed.) (Boston, 1967) 12Google Scholar; Williams, op. cit. supra n. 1 at 166–67.

¹¹⁰ As regards surgical operations generally, there exists a broad exception to the rule that the patient's consent is sufficient, to the effect that in the case of a minor the guardian's consent is required. Note that sec. 316(b) of the Israeli Penal Law, 1977 (L.S.I. Special volume) allows the termination of a minor's pregnancy without her guardian's approval.

¹¹¹ E.g., exposure of the fetus to radiation, or rubella in the mother. See the commentary to sec. 230.3(2) of the American Law Institute Model Penal Code; Shapiro-Libai, N., “The Right to Abortion” (1975) 5 Is. Y.B. on Human Rights 120, 124 n. 13.Google Scholar

¹¹² See the commentary to the Model Penal Code, ubi supra; Williams, op. cit. supra n. 1 at 174–75.

¹¹³ In Jewish personal law in Israel, there also exists the question of mamzcrut (bastardy) which affects the personal status of the child: Schereschewsky, op. cit. supra n. 74 at 345–46.

¹¹⁴ The father's undertaking to raise the child on his own is more problematic here than in ordinary circumstances—to enforce the undertaking by forbidding abortion would make public the woman's “transgression” and be adverse to her desire to preserve the integrity of her marriage and family.

¹¹⁵ In Israel, nevertheless, good reasons will exist for permitting abortion in spite of the father's opposition: the problem of mamzerut exists in any case, and recognition of the father's standing is difficult in view of the halakhic rule that the adulterous woman is forbidden both to her husband and her lover. See A v. Rabbinical Court (1975) 29 (ii) P.D. 433, where the woman applied for her bill of divorce to be expedited so that she could marry the child's father before its birth, and the bill that was issued referred explicitly to the halakhic rule and named the father.

¹¹⁶ Sec. 316(a)(1) of the Israeli Penal Law reads “the woman is under marriage age or over forty years of age”. Note that it is the age of the woman that is central and not the fact that she is unmarried. According to the Marriage Age Law, 1950 (4 L.S.I. 158), the minimum age for the marriage of a woman is 17 years. The legislature, it seems, addressed itself to the age of marriage and not to legal minority, on the view that where the minor is over the age of marriage the option of giving birth in the framework of marriage exists alongside abortion and mollifies the difficulties that attend the pregnancy of a minor. Sec. 5(a) of the Law, it may be observed, enables a girl under seventeen to marry if she gives birth or is pregnant from a man whom she wishes to marry, but this requires special permission of the District Court.

¹¹⁷ See Siliciano, J. A., “The Minor's Right of Privacy” (1977) 77 Colum. L.R. 1216, 1236–37.CrossRefGoogle ScholarPubMed

¹¹⁸ Although the interest of the guardian in the abortion decision differs from that of the father. In Danforth, ubi supra, a statutory provision which made a minor's abortion contingent on parental consent was declared unconstitutional. In Belletti v. Baird 443 U.S. 662 (1979), however, it was held that a state may require parental consent provided an alternative procedure is available for the minor to demonstrate that she is capable of giving her informed and considered consent or that the abortion is necessary for her welfare. See Siliciano, op. cit., 1224–31; Watts, W., “Parent, Child and the Decision to Abort” (1979) 52 S. Cal. L.R. 1869.Google Scholar

¹¹⁹ Regs. 3 and 4 of the Public Health (Examination of Amniotic Fluid) Regulations, 1980. Reg. 5 requires the consent of the woman alone for the test, after having been informed of the nature and the dangers it involves for herself and the fetus.

¹²⁰ Although it does not necessarily involve relaxation of the moral prohibition. For Christian views in this respect, see The Morality of Abortion, op, cit. supra n. 107 at 83–85, 107–12, 164, 166.

¹²¹ Williams, op. cit. supra n. 1 at 238. This, it seems, could also apply to rape by a husband.

¹²² See, e.g., secs. 347–49 of the Israeli Penal Law, 1977.

¹²³ See per Silberg J. in Abutbul v. Kliger (1966) 19 (i) P.D. 429, 466, construing sec. 152(1) (c) and (3) of the Criminal Law Ordinance (now sec. 347 of the Penal Law). The question dealt with was whether consent to intercourse in the case of statutory rape is a good defence in a civil action for assault. The majority opinion was that the rationale of statutory rape is not a legal fiction regarding the lack of consent but protection of the minor's well-being; and since no defect attaches to her consent it is a sufficient defence to civil liability. Cohn J., in the majority, thought that the minor's consent was not consent in the sense that she cannot change the forbidden character of the act, and liability in tort can be imposed on the man despite the minor's consent in fact (at 453).

¹²⁴ Sec. 348 of the Penal Law.

¹²⁵ Such ground was originally included in the Israeli Penal Law but was repealed in 1979. Sec. 316(a)(5) provided that abortion could be approved where “continuance of the pregnancy is likely to cause grave harm to the woman or her children owing to the difficult family or social circumstances of the woman and her environment”. See also sec. 1(a) of the English Abortion Act, 1967.

¹²⁶ Williams, op. cit. supra n. 1 at 172. It may be noted that when this ground does not figure among the statutory grounds, the therapeutic ground is likely to be stretched to embrace injury that does not result directly from pregnancy and birth. Medical literature deals with social factors affecting prognosis of abortion, although other reasons may be given as formal justification: ibid., 173; Sarvis and Rodman, op. cit. supra n. 1 at 85–87. We have already posed the question of how far a therapeutic evaluation may be extended in connection with sterilization.

¹²⁷ Cf. per Blackmun J. in Danforth, ubi supra, 70.

¹²⁸ Cf. Bradley, D.C., “A Woman's Right to Choose” (1978) 41 Mod. L. R. 365, 374.CrossRefGoogle ScholarPubMed

¹²⁹ In England, the decision whether there are grounds for abortion rests with two physicians. A proposal to require the man's consent was rejected because of the inappropriate burden it places upon the doctor: Bradley, op. cit. at 368.

¹³⁰ Such an administrative body may already exist in abortion-on-causc systems—see sec. 315 of the Israeli Penal Law, 1977; but where, as in England, it does not, and in abortion-on-demand systems, it will be necessary to establish one to protect the man's interest despite the entailed economic cost.

¹³¹ This is how Elon J. interpreted the Israeli statute in A v. B, ubi supra, at 88. He thought that the appropriate balance between the right to be heard and the efficacious working of the statutory abortion committee finds expression, in accord with the rules of natural justice, in the duty to hear the man “except where the circumstances warrant a decision being made without first hearing the man”. He differed from the majority that the statutory provisions are exhaustive, their silence regarding the man's standing, in contrast to express reference to that of the woman, amounting to denial of the man's right to be heard. In the view of Elon J., the requirement of the woman's informed consent and the duty to hear her position in the event of a refusal to approve abortion are intended to supplement the right to be heard that exists under rules of natural justice. Hence the fact that the legislature did not likewise supplement the man's right does not mean that he is denied it (at 91). With all due respect, it is suggested that this interpretation is faulty. Elon J. defines the right to be heard as follows: “an administrative body is not allowed… to affect a person … unless [he] has been given fair apportunity to voice his defence against the prospective harm”. In view of this definition, the legislature in fact added nothing to the woman's right to be heard. Informed consent is required so as to prevent civil action for assault and is neither here nor there as regards the principles of natural justice. Moreover, where the woman has given her informed consent and abortion is approved, she is not harmed by the committee's decision, and the right to be heard under natural justice is, therefore, immaterial. That is to say, the provision as to the woman's right to be heard in case of refusal to approve abortion is exhaustive as regards the woman, and the statute's silence as regards the man is to be construed as denying him the right to be heard.

¹³² The facts of A v. B, ubi supra, are interesting in this connection, although it is probable that much of the delay there was due to the fact that there was no existing legal procedure to ensure consideration of the man's position. The statutory committee decided to approve the woman's application for abortion on 24 April 1980. Six days later the District Court issued an injunction on the man's application. In a judgment of 13 May 1980 the injunction was extended pending the committee's review of its decision after hearing the man. On 2 June 1980 the committee withdrew its approval. Six weeks later, on 15 July 1980, the Supreme Court set aside the District Court's decision and injunction. The woman was then in the fifth month of pregnancy.

¹³³ Kennedy, I.M., “Husband Denied a Say in Abortion Decision” (1979) 42 Mod. L.R. 324, 328, 331.Google Scholar

¹³⁴ See per Ben-Ito J. in A v. B, ubi supra, at 86.

¹³⁵ See per Baker J. in Paton, ubi supra, at 991.

¹³⁶ cf. Kennedy, op. cit. supra n. 42 at 327; Bradley, op. cit. supra n. 42 at 380–81. Note that many of the considerations that operate against according the man legal standing in the abortion decision would apply even if the law were prepared to give effect to a man's undertaking to raise the child by himself. That is, beyond the questions of public policy, here too there exist good reasons to refuse to recognize the man's standing.