The judges, headed by the Lord Chief Justice, Lord Taylor, have been asked to rule that a man who stabbed his pregnant girlfriend committed either murder or manslaughter of their child, even though the baby was not yet a legally recognised "person in being" at the time of the wounding.
The case, referred to the court by the Attorney General, Sir Nicholas Lyell, following the man's acquittal of murder on the directions of a trial judge, raises important issues over how the law should approach the death or disablement of children as a result of pre-natal injury. It is being watched keenly by criminal lawyers and doctors involved in abortion practice.
Although the hearing centres on the application of the criminal law to the unlawful use of violence to the unborn child or its mother, it is seen as having implications for the medical profession in what is a "grey" area. Doctors are divided over the ethical problems arising from late abortions which result in delivery of living foetuses.
The woman victim in the case was stabbed with a kitchen knife during a drunken row and gave birth three months prematurely. Her baby daughter survived for 121 days, undergoing surgery to repair the injuries she suffered in the womb. She died from the consequences of premature birth.
At the man's trial in 1993, Mr Justice Holland rule that, according to legal precedent, he could not be convicted of murder in the absence of specific malice against the unborn foetus. The man, who was earlier sentenced to four years in jail for wounding the mother, has the right to remain anonymous in the two-day appeal hearing, the outcome of which cannot affect his acquittal.
Robert Smith QC, for the Attorney General, contended that murder or manslaughter was committed if a child was born alive, lived independently of its mother and then died as a result of intentional injury caused while it was still in the womb. It mattered not if the intention was to inflict injury only on the mother - the offence was still made out by the doctrine of "transferred malice".
The fact that the foetus was not legally a person in being at the time was no bar to successful prosecution, Mr Smith told Lord Taylor, Mr Justice Kay and Mrs Justice Steel. It was well established law that to kill a child before it had an existence independent of its mother was not murder or manslaughter. But once a child was born alive, difference considerations applied - and the lapse of time between the violent act and the actual death was irrelevant.
The case continues today.Reuse content