of Poulton12 and Enoch13, the courts held that in order to have an 'independent existence' , the
child must have been wholly expelled from its mother's body and be alive. Trinidad and Tobago
follows the test applied in the English case of Handley14, where a child comes under the
protection of the law of murder when the victim is born alive and has an independent existence
of its mother.
With respect to the definition of abortion, that is, "The expulsion of the foetus at a period of
utero-gestation so early that it has not acquired the power of sustaining an independent life", one
can safely conclude that abortion is not murder in criminal law. In the case of AG's Reference
(No 3 of 1994)15, the defendant stabbed his pregnant girlfriend in the face, abdomen and back
when she was 22-24 weeks pregnant and 17 days after this occurrence, the woman went into
premature labour and delivered a live baby which died 121 days later due to the premature
birth. However, the House of Lords substituted the defendant's conviction of murder for
manslaughter on the grounds that a conviction of murder was wrong because "The mother and
foetus were two distinct organisms living symbiotically, not a single organism with two
aspects."16
Therefore, an important question surfaces here as to whether the fact that a foetus cannot be a
victim of murder, provides justification for the legalization of abortion in certain circumstances.
It should be noted that the concept of rights is anchored in man's nature and presupposes the
existence of an actual, fully formed and distinct human being apart from the mother. Thus, in this
sense, it can be argued that a woman has the right to choose to terminate her pregnancy where a
foetus has been conceived against the will of the mother, such as in the instances of rape and
incest. In the cases of foetal impairment and pregnancy of minors, there may not only be a risk to
the physical health of the mother, but it may also be a mental burden to carry the weight of an
unwanted foetus for nine months.
In conclusion, a valid argument exists for broadening the grounds on which abortions should be
performed in order to include rape, incest, foetal impairment and pregnancy of minors. This
12
Poulton (1832) 5 C&P 329
Enoch (1850) 5 C&P 539
14
Handley (1874) 13 Cox CC 79.
15
AG's Reference (No 3 of 1994) [1997] 3 ALL ER 936 (HL)
16
Ormerod, David. Smith and Hogan's C riminal Law (13th edn, Oxford University Press, 2011) p489.
13
14