Kelly v Kelly [1997] ScotCS CSIH_2 (24 May 1997)
Scots law does not recognise the foetus as a legal person or as having rights capable of protection by interdict prior to birth. Therefore, no person can invoke the power of the court to vindicate such a right, and the pursuer has not set out a prima facie case for interdict.
- Citation
- [1997] ScotCS CSIH_2
- Parties
- Pursuer: Kelly; First Defender: Kelly; Second Defenders: Royal Infirmary of Edinburgh NHS Trust
- Jurisdiction
- Scotland
- Judgment Date
- 24 May 1997
- Procedural Posture
- Civil (family Law, Interdict) / Reclaiming Motion (appeal) Against Recall of Interim Interdict
- Outcome
- reclaiming motion refused
- Legal Topics
- Abortion, Foetal Rights, Interdicts, Parental Rights, Civil Remedies
Case Brief
Summary, issues, holding and outcome
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Parties
Kelly
Pursuer
Kelly
First Defender
Royal Infirmary of Edinburgh NHS Trust
Second Defenders
Procedural Posture
Civil (family Law, Interdict) / Reclaiming Motion (appeal) Against Recall of Interim Interdict
Legal Issues
- 1 Whether a foetus has legal personality or rights under Scots law that can be protected by interdict
- 2 Whether a father can obtain an interdict to prevent the mother from obtaining a lawful abortion
Ratio Decidendi
Scots law does not recognise the foetus as a legal person or as having rights capable of protection by interdict prior to birth. Therefore, no person can invoke the power of the court to vindicate such a right, and the pursuer has not set out a prima facie case for interdict.
Court Disposition
reclaiming motion refused
Orders
- Refusal of reclaiming motion against recall of interim interdict
- No interim interdict granted to prevent abortion
Full Case Text
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