Abstract
In 2002, in a judgment relating to the use of the morning-after pill, Mr Justice Munby held that pregnancy begins with the implantation of an embryo into the uterus of a woman. The case involved a large body of expert witness evidence including medical and physiological details of human reproduction. Munby J. emphasised one particular aspect of this evidence: namely, the developmental failure rate of human embryos after fertilisation. Under natural conditions, embryo loss is approximately 10-40% before implantation, and total loss from fertilisation to birth is 40-60% (Jarvis, 2016). By contrast, and based on expert witness testimony, Munby J. stated that not much more than 25% of successfully fertilised eggs reach the implantation stage, and that fewer than 15% of fertilised eggs result in a birth, figures that do not accurately represent scientific knowledge regarding human embryo mortality and pregnancy loss under natural conditions. Rather, these figures were derived from experimental laboratory data and clinical outcomes from in vitro fertilisation treatment. Testimony provided by other expert witnesses directly contradicted these specific numerical claims. In emphasising these figures, Munby J. gave the impression that human embryo mortality is substantially higher than available scientific evidence indicated. In this critique, all the scientific expert witness evidence is presented and reviewed, and an explanation provided for why the emphasised figures are wrong. Whether there are implications of Munby J.'s scientific misjudgment on the legal outcome is for others to consider.
Highlights
In 2002, a judicial review was considered by the Honourable Mr Justice Munby of the Queen’s Bench Division (Administrative Court) to determine whether the supply of Levonelle (commonly referred to as a morning-after pill (MAP)) by pharmacists amounted, in principle, to a criminal act under section and/or section of the Offences against the Person Act 18611,a
Munby J.’s error In paragraph 129 of Munby J.’s judgment there are two quantitative claims, both attributed to Professor Braude, that invite close scrutiny: (1) “not much more than 25% of successfully fertilised eggs reach the blastocyst stage of development”, and (2) “fewer than 15% of fertilised eggs will result in a birth”
It is notable that in the most recent (2019) edition of her book39 the explicit 75% claim is omitted: “The majority of naturally fertilized eggs will be lost before the Conclusion Braude & Johnson’s chapter was written with more than just biology in mind: the critical paragraph is in a section headed “Ethics and the biology of pre-embryos” and the conclusion touches on religious, ethical and regulatory issues
Summary
2. Nicanor Austriaco, OP , Providence College, Providence, USA University of Santo Tomas, Manila, Philippines. Any reports and responses or comments on the article can be found at the end of the article. Keywords Mr Justice Munby, Smeaton, morning-after pill, embryo mortality, early pregnancy loss
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