Abortion Law

1. Introduction

Until 1803 the only law relating to abortion was the common law and under English common law, provided the abortion was carried out before the women could feel the baby move, it was considered morally and legally acceptable. Abortion however was made a crime in 1803 and since then the law has been entirely statutory. From Lord Ellenborough’s Act 1803 through to the Human Fertilisation and Embryology Act 1990 and it’s amendment of the law relating to the termination of pregnancy, regulation of abortion in the United Kingdom has reflected a social and political context from which it has been legalised. While there is a polarity of views on the question of abortion and a suggestion that muddle and self-contradiction have marked the attitudes and policies towards abortion, the purpose of this paper will be to deliberate solely on the law. Hence this paper will begin by looking at current abortion law and then consider the history behind present-day legislation. This paper will then conclude by examining the issue of abortion of disabled foetus’. Once again, whilst the issue of abortion on the grounds of fetal abnormality has been referred to as eugenic in nature, the ethics of the issue will not be discussed and only the law will be examined.

2. The Present Law on Abortion

The present legislation on abortion comprises the Offences against the Person Act 1861, Infant Life (Preservation) Act 1929, Abortion Act 1967, the Human Fertilisation and Embryology Act 1990 (hereafter the ‘HFEA 1990’) and the Abortion Regulations 1991, SI 1991/499. Specifically, the law relating to abortion means s.58 and s.59 of the Offences against the Person Act 1861 and any rule of law relating to the procurement of an abortion.

Medical Termination of Pregnancy

The Abortion Act 1967 (hereafter the ‘1967 Act’) was passed on October 27, 1967 and came into effect on April 27, 1968. The purpose of the 1967 Act was to amend and clarify the law relating to the termination of a pregnancy by registered medical practitioners. Consequently the termination of a pregnancy is subject to certain conditions and regulations under the 1967 Act and any treatment for the termination of pregnancy must be carried out in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 1977 or in a hospital vested in a Primary Care Trust or a National Health Service trust or an NHS foundation trust or in a place approved for the purposes by the Secretary of State.
The 1967 Act was subsequently amended by s.37 of the HFEA 1990. Section 1(1) of the 1967 Act originally provided for the following:
“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith – –

However following amendment of the 1967 Act by the HFEA 1990, s. 1(1) of the 1967 Act now provides that:
“Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith –

In context therefore, no offence is committed under the law relating to abortion if a pregnancy is terminated by a registered medical practitioner or by a nurse carrying out a termination under the instructions of a registered medical practitioner, if two registered medical practitioners have formed an opinion in good faith, as to the consequence of the pregnancy. However, the opinion of two registered medical practitioners will not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.
For the purposes of the 1967 Act a ‘registered medical practitioner’ is construed as meaning a fully registered person and may also be used as a courtesy title for a ‘doctor’. Under the provisions of the Abortion Regulations 1991 (as amended) the opinion of each registered practitioner must be certified either in a prescribed form (certificate A) or in a certificate signed and dated by both practitioners jointly, or in separate certificates signed and dated by each practitioner. Each certificate must state in full the name and address of each practitioner together with the full name and address of the pregnant woman. Each certificate must also state whether or not each practitioner has seen or examined, or seen and examined, the pregnant woman, and that each practitioner is of the opinion formed in good faith, that at least one and the same ground mentioned in s. 1(1)(a)-(d) of the Act 1967 is fulfilled. The certificate of opinion must be given before the commencement of the treatment for the termination of the pregnancy to which it relates, and must be preserved by the practitioner who terminated the pregnancy for a period of not less than three years beginning with the date of the termination. A certificate which is no longer to be preserved must be destroyed by the person who has the certificate. Notice of the termination and any other information relating to the termination as specified in Schedule 2 of the Abortion Regulations 1991 (as amended) must be give to the Chief Medical Officer within 14 days of the termination, either in a sealed envelope or by an electronic communication used solely for the transfer of confidential information. A restriction is placed on the information furnished to the Chief Medical Officer and this information may only be disclosed under certain circumstances. Accordingly, and for the purposes of carrying out their duties, disclosure may be made to an authorised officer of the Department of Health, to the Registrar General or an authorised member of his staff, or to an individual authorised by the Chief Medical Officer who is engaged in setting up, maintaining and supporting a computer system used for the purpose of recording, processing and holding such notice or information. Disclosure may be made to the Director of Public Prosecutions (or a member of his staff authorised by him) for the purposes of carrying out his duties in relation to offences under the Abortion Act 1967 or the law relating to abortion. Likewise disclosure may be made to a police officer not below the rank of superintendent (or a person authorised by him) for the purposes of investigating whether an offence has been committed under the Abortion Act 1967 or the law relating to abortion. Disclosure may also be made pursuant to a court order, for the purposes of bona fide scientific research, to the practitioner who terminated the pregnancy or to a registered medical practitioner, with the consent in writing of the woman whose pregnancy was terminated. Finally the information may also be disclosed to the president of the General Medical for the purpose of investigating whether the fitness to practise of the practitioner is impaired or to the woman whose pregnancy was terminated.
Under s.1 (1) 1967 Act any opinion given by a registered practitioner must be formed in ‘good faith’ and the question of good faith is something a jury would be asked to decide on the totality of the evidence. In Re G (Mental Patient Termination of Pregnancy) (1990), the court held that provided s.1 1967 Act was complied with, the act provided adequate safeguards for the doctors involved and there was no necessity for a formal declaration by the court. Equally, in determining whether the continuance of a pregnancy would involve risk of injury to health, under s. 1(2) 1967 Act account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. Thus in the case of a therapeutic operation which could incidentally result in sterilisation, the Court held that the leave of the court was unnecessary provided s.1 Act 1967 was complied with and that two medical practitioners were satisfied the operation was necessary for therapeutic reasons and that it was in the patient’s best interests to proceed, there being no practicable alternative treatment (see SG (Adult Mental Patient: Abortion) (1993) ).
Prior to the amendment of paragraphs (a) and (b) of section 1(1) of the 1967 Act by s.37 HFEA 1990, the grounds for the medical termination of pregnancy had been set at twenty-eight weeks. The twenty-eight week had been had been enshrined by the Infant Life (Preservation) Act 1929 as being the age at which a foetus was presumed to be viable. The Act had also amended the law such that it would no longer be regarded as a felony if abortion was carried out in good faith for the sole purpose of preserving the life of the mother. Perhaps more importantly, the Act provided doctors with the power to decide when an abortion was legal in certain cases, when the life of the mother was threatened. In sympathy with the amendment introduced by the HFEA 1990, no offence under the Infant Life (Preservation) Act 1929 is committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of the 1967 Act.
A significant aspect of the 1967 Act is the inclusion of a conscience clause that states that ‘no person is under any duty, whether by contract or by any statutory or other legal requirement, to participate in any authorised treatment for the termination of pregnancy to which he has a conscientious objection. However in any legal proceedings, the burden of proof of conscientious objection lies with the person claiming to rely on it and “once a termination of pregnancy is recognised as an option, the medical practitioner invoking the conscientious objection clause is required to immediately refer the patient to a colleague” (see words used by Alliott J. in Michelle Eileen Barr v Dr. S.R. Matthews (1999) in which a doctor who was philosophically opposed to abortion, was accused of a breach of the duty owed to a young and vulnerable patient). However, this provision did not affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman. The conscience clause in the 1967 Act refers only to medical practitioners and a person has no right of conscientious objection against participation in treatment authorised by the Act 1967 unless they are taking part in the actual hospital procedures undertaken for the purpose of terminating a pregnancy. Thus in R v Salford Health Authority ex parte Janaway the House of Lords held that the typing of a letter relating to the termination of a pregnancy was not participation under the 1967 Act and the appellant who was a typist, could not rely on the provision in s.4 (1) of the 1967 Act. Although not formally set out in legislation, as in the 1967 Act, the common law provides that an individual doctor cannot be forced to treat, or fail to treat, against his conscience. In such circumstances, doctors may not seek to subvert patient wishes, but must seek to refer on to a doctor without the same ethical difficulty.
The 1967 Act also applies with some modifications to visiting forces and international military headquarters, although the provisions as to notification do not apply.
Until it is born, a foetus is not recognised as a legal person and is therefore unable to apply to the court for an order preventing a lawful abortion. In Kelly v Kelly [1997] the court held that the father of a foetus in the mother’s womb has no legal right to prevent the mother from aborting the foetus and the foetus has no legal rights under law to remain in the womb. According to the court the fatal flaw in the appellant’s argument was in treating a foetus as a person with actionable rights. A husband also has no enforceable legal right to stop his wife having, or a registered medical practitioner performing, a legal abortion (see Paton v British Pregnancy Advisory Service Trustees [1979] QB 276.

Unlawful Procuring of an Abortion

Under s.5 (1) 1967 Act no offence under the Infant Life (Preservation) Act 1929 is committed by a registered medical practitioner who terminates a pregnancy in accordance with s.1 1967 Act. Correspondingly therefore, anything done with intent to procure a woman’s miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by the s.1 1967 Act. Under s.1 (1) Infant Life (Preservation) Act 1929;

‘any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life.’

Thus any person who intentionally destroys the life of a child capable of being born alive before it has an existence independent of its mother, is guilty of child destruction and once a foetus is capable, if born, of breathing and living by reason of its breathing through its own lungs alone, it is ‘capable of being born alive’. The penalty for child destruction is life imprisonment or a shorter term. In C and another v S and others [1987] the court had to consider whether a foetus of between 18 and 21 weeks was ‘capable of being born alive’ and whether if delivered, it could demonstrate real and discernible signs of life. The court held that whilst a foetus of between 18 and 21 weeks could be said to demonstrate real and discernible signs of life, the medical evidence was that such a foetus would be incapable of breathing either naturally or with the aid of a ventilator. According to the court therefore, such a foetus could not properly be described as being ‘capable of being born alive’ within the meaning of s.1 (1) Infant Life (Preservation) Act 1929 and the termination of a pregnancy of such length would not constitute an offence under that Act.
For the purposes of the Infant Life (Preservation) Act 1929, ‘evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more is prima facie proof that she was at that time pregnant of a child capable of being born alive’. In Rance v Mid-Downs Health Authority [1991] a plaintiff brought an action claiming that the defendants had been negligent in not ascertaining whether the foetus of 26 weeks duration was abnormal – the baby was subsequently born suffering from spina bifida. The defendants denied negligence and contended that in any event, even if the abnormality had been discovered, it would have been an offence under the Infant Life (Preservation) Act 1929 to have terminated the pregnancy because the termination would have taken place when the foetus was 27 weeks old. The court held that a foetus which was capable if born, of living and breathing through its own lungs without any connection to its mother was a child ‘capable of being born alive’ within s.1 Infant Life (Preservation) Act 1929 and consequently an abortion of a foetus at that stage in its development was unlawful even if carried out within the period of 28 weeks referred to in s.1 (2) of the Infant Life (Preservation) Act 1929.
Under the provisions of s.1 (1) Infant Life (Preservation) Act 1929 no person shall be found guilty of an offence unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. Under the common law the words ‘preserving the life of the mother’ have been widely construed by the courts. In the pivotal case of R v Bourne [1938] the court was firstly invited to accept the reasoned opinion that an abortion would be justified if a child could not be delivered without the death of the mother, but also that the words ‘preserving the life of the mother’ should also mean that if in the opinion of the doctor, the continuance of the pregnancy would be to make the woman a physical or mental wreck, then the doctor in his honest belief would be operating for the purpose of preserving the life of the woman. In R v Newton and Stungo [1958] it was suggested that s.58 of the Offences Against The Person Act 1861 may be interpreted in a wider sense so as to permit abortion on grounds of physical and mental health.
A women will be guilty of an offence under s.58 of the Offences Against The Person Act 1861 if she tries to procure her own miscarriage. Under the provisions of s.58 of the Offences Against The Person Act 1861:

‘ Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life . . .’

Section 59 of the Offences Against The Person Act 1861 deals with the procuring of drugs to cause abortion and state accordingly that:

‘Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . . to be kept in penal servitude . . .’

Thus under the provisions of the Offences Against The Person Act 1861 and s.1 of the 1967 Act, a pregnant woman will be guilty of unlawfully procuring an abortion if she takes poison or a noxious substance or uses an instrument with the intent to procure her own miscarriage. Similarly, an individual who administers poison or a noxious substance or uses an instrument with the intent to procure the miscarriage of a pregnant women, will also be guilty of unlawfully procuring an abortion. In order to constitute the statutory offence of unlawfully procuring an abortion, the thing supplied or administered to the pregnant woman must be proved to be noxious, although it need not be proved to be an abortifacient. In R v Osborne (1919) the accused was arrested and charged with attempting to administer noxious things (i.e. pills and medicine) to his pregnant girlfriend and for inciting her to administer to herself noxious things with intent to procure her own miscarriage. The prosecution had put forward the argument that there was no evidence to suggest that the medicine and pills were noxious, but the judge directed the jury that the substantial question was whether the things were noxious in the sense of being abortive. Where a substance procures a miscarriage it will be deemed a noxious thing and even if it does not, it may still be a noxious thing. Thus the quantity of an otherwise noxious drug may be so small as to be harmless (see R v Perry (1847) ) and conversely, a large dose of a drug which is harmless when taken in small quantities may be noxious. Hence in R v Marcus [1981] the appellant had put eight sedative and sleeping tablets into her neighbour’s bottle of milk and had been charged with attempting to cause to be taken a noxious thing with intent to injure, aggrieve or annoy contrary to s.24a of the Offences against the Person Act 1861. Expert evidence had established however that very little harm would have resulted from the toxicity of the drugs in the milk, but they would have caused sedation and possibly sleep.
A woman cannot be convicted of administering poison to herself with intent to procure her own miscarriage unless she is pregnant, but in doing so she may be convicted of conspiracy to procure an abortion (see case of R v Whitchurch and Others [1886-90]). Likewise even though a person may not have administer poison or an obnoxious thing or used an instrument with the intent of procuring an abortion, they will still be guilty of an offence if they had unlawfully supplied or procured any poison or other noxious thing, or any instrument knowing that it was intended to be unlawfully used to procure the miscarriage of any woman. However, the court has held that contraceptive pills including the morning-after pill, cannot as a matter of law procure a miscarriage and consequently no offence is committed under the Offences Against the Persons Act 1861 by any person who or uses or prescribes such contraceptive pills. In R (on the application of Smeaton) v Secretary of State for Health ex parte John Smeaton [2002] an application for judicial review of a decision by the Secretary of State for Health was made on behalf of the Society for the Protection of Unborn Children who sought a declaration that a person who administered the morning-after pill (Levonelle) to a woman with the intention of causing any embryo that existed to be expelled, committed an offence under s.58 of the Offences Against the Person Act 1861. In addition the claimant also sought a declaration that a person who supplied the pill intending the patient to use it, also committed an offence under s.59 of Offences Against the Person Act 1861. The argument put forward by the claimant was that an abortifacient substance such as the morning-after pill, could only be administered if two doctors certify that the conditions set out in the 1967 Act were satisfied. Thus according to the claimant any woman who took the morning-after pill was potentially committing an offence under the Offences Against the Person Act 1861. In dismissing the application, the judgment of the court was decided by the present-day meaning of the term “miscarriage” rather than its meaning in 1861 and accordingly, it was held that “miscarriage” today meant the termination of an established pregnancy. Since under the 1861 Act “miscarriage” presupposed that the fertilised ovum had become implanted, the morning-after pill did not cause a miscarriage because it brought about the loss of a fertilised egg before implantation. It was taken before the process of implantation had begun and could not therefore make an implanted egg de-implant. Consequently the supply and use of the morning-after pill did not involve the commission of a criminal offence. Finally, within the meaning of s.59 Offences against the Person Act 1861, in order to constitute the offence of supplying a noxious substance with the intention that it shall be employed in procuring abortion, it is not necessary that the intention of employing it should exist in the mind of any other person than the person supplying it. Thus the offence of supplying a noxious drug is complete even if the intention to use it for the purpose of procuring abortion exists only in the mind of the person supplying it (see R v Hillman (1863)).

Human Rights of the Unborn Foetus out

Within the area of human rights law there exists a number of instruments, treaties and domestic statutes that impinge on the issue of abortion. While any in-depth discussion of such authorities is beyond the remit of this paper, there are a number of areas within these authorities that suggest they could have a direct effect on abortion. Principle amongst these is the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the ‘Convention’). The Convention came into force on 3 September 1953 and was originally established to monitor human rights within countries that had ratified it. The provisions of the Convention guarantee the majority of civil liberties including amongst others the right to life. Cases involving human rights are brought before the European Court of Human Rights (hereafter ECHR) in Strasbourg and the decisions of this court are binding on the country concerned and have implications for all the member states. In the United Kingdom the Human Rights Act 1998 came into force on October 27 1997 and gave further effect to the Convention. The Human Rights Act 1998 promised to radically alter the interpretation and use of all other legislation within the United Kingdom by obliging courts to decide all cases before them compatibly with Convention rights. The Act also introduced an obligation on the courts to interpret existing and future legislation in conformity with the Convention wherever possible and to take Strasbourg case law into account in all cases, in so far as it was relevant to the proceedings before them. In context therefore under article 2 of the Convention, everyone’s right to life must be protected by law and no one may be deprived of his life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. The requirement of the protection of human life is one of the most fundamental provisions in the Convention . Consequently, if Convention rights under article 2 are applied to the issue of abortion, then the argument put forward is that abortion may potentially violate the right to life of the foetus. However, the ECHR has adamantly refused to consider the issue of whether there exists a right to abortion under the Convention and the equally problematic issue of the protection owed to the unborn child under Article 2. In X v. United Kingdom (1980) the Commission at Strasbourg decided that, even if the foetus was protected under Article 2 of the Convention, its right to life would of necessity be subject to an implied limitation in respect of a termination of pregnancy to protect the mother’s life or health. Similar contention was considered in the case of Paton v United Kingdom (1980). In Paton a husband who lived separately from his wife, tried to prevent her from having an abortion. The Commission concluded that the term ‘everyone’ used in the Convention applied only post-natally and the life of the foetus was intimately ‘connected with, and … cannot be regarded in isolation of the life of the woman’. Notably although the case was declared inadmissible, it did nevertheless concern the abortion of a foetus of less than ten weeks and one that had no viable life outside the mother.
Of considerable note within the declaration of the Commission however, was the admission that the possible construction of Article 2 of the Convention as recognising an absolute right to life of the foetus, was potentially incompatible with the object and purpose of the Convention, as it placed a higher value on the foetus’ life than on that of the pregnant woman. However, the question whether, and if so how far, Article 2 covered the foetus was left open in the circumstances of the case. In H v Norway (1992) the European Commission pronounced that “The Commission finds that it does not have to decide whether the foetus may enjoy a certain protection under Article 2, but it will not exclude that in certain circumstances this may be the case notwithstanding that there is in the contracting states a considerable divergence of views on whether or to what extent Article 2 protects the unborn life.”
More recently on 8 July 2004 the ECHR issued an important ruling on the applicability of the Convention on foetal life in Vo v France. This case involved a pregnant woman who had attended her local maternity clinic for an antenatal check-up and had been mistaken for another woman with the same name. Due to this confusion the doctor had attempted unsuccessfully to remove a non-existent contraceptive coil and in doing so ruptured the amniotic sac surrounding Mrs Vo’s foetus. As a consequence of the loss of the amniotic fluid, her pregnancy could not continue and was terminated on health grounds. The ECHR declared by a majority verdict that there had been no violation of Article 2 of the Convention. In doing so the ECHR had examined its previous case law on abortion (although these had mainly been decisions on admissibility) and its decision in Open Door and Dublin Well Woman v Ireland – here the court had said that it had not considered it relevant to determine whether a right to abortion was guaranteed under the Convention or whether the foetus was encompassed by the right to life as contained in Article 2. In consequence of the circumstances examined to date by the Convention institutions on the various laws on abortion, the court stated that the ‘unborn child was not regarded as a ‘person’ directly protected by Art 2 of the Convention, and that if the unborn do have a ‘right’ to ‘life’, it is implicitly limited by the mother’s rights and interests.’ The court continued by stating that the issue of when the right to life begins was within individual states’ margin of appreciation, and that there was no European consensus on the scientific and legal definition of when life begins. Furthermore, accordingly to the court it was neither desirable, nor even possible as matters stood, to answer in the abstract the question whether the unborn child was a person for the purposes of Article 2 of the Convention. Consequently there was no authoritative decision of the European Court on Human Rights on this subject.
Within the United Kingdom courts a judicial discussion on the right to life was considered in Airdale NHS Trust v Bland [1993]. In Airdale the court had to consider the case of a young man in a persistent vegetative state under the care of the applicant health authority. The man had been fed artificially and mechanically by a nasogastric tube which had been inserted through his nose and down into his stomach. The unanimous opinion of all the doctors who had examined him was that there was no hope whatsoever of recovery or improvement of any kind in his condition and that it would be appropriate to cease further treatment. In his speech Lord Goff of Chieveley said that:

“. . .the fundamental principle is the principle of the sanctity of human life – a principle long recognised not only in our own society but also in most, if not all, civilised societies throughout the modern world, as indeed evidenced by its recognition both in article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Cmd 8969) and in article 6 of the International Covenant of Civil and Political Rights 1966”.

Thus having accepted that the principle of the sanctity of human life was fundamental, his Lordship continued that it was ‘not absolute’ and consequently there was no absolute rule that in this particular case, the patient’s life must be prolonged by such treatment or care, if available, regardless of the circumstances.
In the United Kingdom there is also the primacy of European Union (EU) law and the requirement that member states comply with the Convention when transposing EU law into national law (see Commission v Germany (case 249/86) ). However, whilst the European Court of Justice (ECJ) Court has consistently held that Convention rights form an integral part of the general principles of Community law (see Rutili v Ministre de I’Interieur [1975] ) it has also held that ‘… it has no power to examine the compatibility of the Convention with national legislation when it concerns … an area which falls within the jurisdiction of the national legislator.’ Thus when it was argued before the ECJ that the provision of abortion could not be regarded as being a service within the meaning of Article 60 of the Treaty, on the grounds that it was grossly immoral and involved the destruction of the life of a human being (namely the unborn child), the ECJ refused to get involved in the merits of those arguments on the moral plane (see the Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others (case C-159/90)). According to the ECJ it was not for the court to substitute its assessment for that of the legislature in those member states where the activities in question were practised legally and ‘medical termination of pregnancy, performed in accordance with the law of the state in which it is carried out, constituted a service within the meaning of Article 60 of the Treaty.’

3. History behind Abortion Law

Prior to 1803 English Common Law considered abortion morally and legally acceptable. The first references to abortion in English law appeared in the 13th Century and followed Church teaching that abortion was acceptable until ‘quickening’, which was when it was believed the soul entered the foetus and when the foetus could first be felt to move by the pregnant woman. The first mention of abortion can be found in Bracton’s De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England). In the course of discussing the pleas of the Crown, he said at f121:

“If one strikes a pregnant woman (mulierem praegnantem) or gives her poison in order to procure an abortion (abortivum), if the foetus is already formed or quickened, especially if it is quickened (iam formatum velanimatum fuerit, et maxime si animatum), he commits homicide.”

Seventeenth Century

In the seventeenth century Coke in the Third Part of his Institutes of the Laws of England said that:

“If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat here, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder.” Having then cited Bracton and Fleta, Coke continues: “And herein the law is grounded upon the law of God.”

Eighteenth Century

In the eighteenth century William Blackstone made a similar remark in his Commentaries on the Laws of England:

“Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor.”

Nineteenth Century

Thus it can be seen that by the beginning of the nineteenth century there were four prominent features of the common law on abortion, firstly the commission of offences by both the woman carrying the ‘child’ and others who took action resulting in its death; secondly, that those offences constituting only “misprision” or “misdemesnor” and not felony were not capital; thirdly, that no offence could be committed unless and until there was a ‘child and fourthly, for this purpose there had to be ‘quickening’.
The concept of ‘miscarriage’ could also been as an offence under the common law. In Chitty’s Criminal Law of 1816 a reference is made to a case in Michaelmas 42 Geo 3 (1802) in which the defendant was charged as follows:

“did … unlawfully … give and administer … to [the woman], … being big and pregnant with child … divers other … dangerous … pills … with a wicked intent to cause and procure [the woman] to miscarry …”

Lord Ellenborough’s Act 1803

In 1803 Lord Ellenborough’s created the first statutory prohibition of abortion which contained two criminal offences. Section 1 made it a felony punishable by death:
“if any person … shall wilfully, maliciously and unlawfully administer to, or cause to be administered to or taken by any of his Majesty’s Subjects, any deadly Poison, or other noxious and destructive Substance or Thing, with Intent … thereby to cause and procure the Miscarriage of any Woman then being quick with Child”.
Section 2 made abortion before quickening a crime for the first time. It provided for a felony punishable by fine, imprisonment, the pillory, whipping or transportation for up to fourteen years:

“And whereas it may sometimes happen that Poison or some other noxious and destructive Substance or Thing may be given, or other Means used, with Intent to procure Miscarriage or Abortion where the Woman may not be quick with Child at the Time, or it may not be proved that she was quick with Child … if any Person or Persons … shall wilfully and maliciously administer to, or cause to be administered to, or taken by any Woman, any Medicines, Drug, or other Substance or Thing whatsoever, or shall use or employ, or cause or procure to be used or employed, any Instrument or other Means whatsoever, with Intent thereby to cause or procure the Miscarriage of any Woman not being, or not being proved to be, quick with Child at the Time of administering such Things or using such Means, … then [a felony is committed]”.

Lord Lansdowne’s Act of 1828

Lord Ellenborough’s Act 1803 was repealed by Lord Lansdowne’s Act of 1828 Section XIII of Lord Landsdowne’s act created two offences, hence a felony punishable by death, was committed:

“if any Person, with Intent to procure the Miscarriage of any Woman then being quick with Child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any Poison or other noxious Thing, or shall use any Instrument or other Means whatever with the like Intent”.

A felony punishable by transportation for not more than fourteen years, imprisonment or whipping, was committed:

“if any Person, with Intent to procure the Miscarriage of any Woman not being, or not being proved to be, then quick with Child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any Medicine or other Thing, or shall use any Instrument or other Means whatever with the like Intent”.

Offences Against the Person Act 1837

Lord Lansdowne’s Act 1828 was replaced in relevant part by the Offences Against the Person Act 1837. Under section VI of the 1837 Act a single offence punishable by transportation for life or imprisonment, was committed by:

“whosoever, with Intent to procure the Miscarriage of any Woman, shall unlawfully administer to her or cause to be taken by her any Poison or other noxious Thing, or shall unlawfully use any Instrument or other Means whatsoever with the like Intent”.

The death penalty in cases in which the woman was ‘quick’ with child was abolished in 1837 in accordance with the recommendations of the reported presented by Commissioners Appointed to Inquire Into the State of the Criminal Law.
Two features of this statutory development can be noted, in addition to the fact that the Acts of 1803 and 1828 made capital certain offences which at common law had not been capital. The first is that the Act of 1803 (the Act of 1828 made no material change to the position) introduced for the first time an offence which did not depend upon proof that the woman was “quick with child”.
The second is that the Act of 1837 created a single offence which did not depend on proof that the woman was “quick with child” or, indeed, even that she was (to use the terminology of the 1861 Act) “with child”. Whilst the reform of the 1837 Act was initially considered to have removed anomaly from the law of abortion, it was subsequently considered to have created greater anomaly in the law. As one commentator said:

“This term quickening, which it would be impossible to abolish too soon, is a relic of theo-physiology, absurd and groundless in itself, but upon which laws have been based that remain to the present day, to the disgrace of our jurisprudence. The imaginary quickening, marks the period when our ancestors believed the foetus to become endued with life and soul […] modern laws make it a punishable crime to procure abortion, and destroy the ovum at any time; but the ancient laws which sanction the execution of a pregnant woman, and her child with her, before the period of quickening …still survive.”

Offences Against the Persons Act 1861

In 1861 Parliament passed the Offences Against The Persons Act. Under s.58 Act abortion was a criminal offence punishable by imprisonment from 3 years to life even when performed for medical reasons. Under s.58 of the 1861 Act:

“Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony”.

Under s.59 of the Act:
“Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or not be with child, shall be guilty of a misdemeanor”.
Of particular note in the 1861 Act was that in place of the phrase “quick with child” which had been used at common law and in the Acts of 1803 and 1828, the 1861 Act used the phrase ‘with child’. S.58 and s.59 of the Act create three offences; under the first limb of s.58, a crime could committed only by the woman concerned and only if she was ‘with child’. The second, created by the second limb of section 58, could be committed by anyone and whether or not the woman was ‘with child’ and the third, created by s.59, could again be committed by anyone and whether or not the woman was ‘with child’. Of particular note is that the 1861 Act did not make abortion as such a criminal offence. In practice each of the three offences consisted two components – the doing of certain acts (such as ‘administering’ or ‘supplying or procuring’ certain things) and with a certain knowledge or intent. In the case of the first offence there was a further ingredient in that it had to be proved that the woman was ‘with child’.
Common to all three offences was the need to prove either an “intent to procure … miscarriage” or, in the case of the offence under s.59, knowledge of another’s “intent to procure …miscarriage”.

Infant Life Preservation Act 1929

In 1929 the Infant Life Preservation Act amended the law stating it would no longer be regarded as a felony if abortion was carried out in good faith for the sole purpose of preserving the life of the mother. Under the 1929 Act, 28 weeks was enshrined as the age at which a foetus was presumed to be viable and thus it was illegal to kill a child ‘capable of being born live’. Of particular importance was the fact that the 1929 Act gave doctors the power to decide when abortion was legal in cases where the life of the mother was threatened.

R v Bourne

The case of R v Bourne has been described as the pivotal moment in English abortion law. As such the case concerned a doctor (obstetrician) who had been charged with procuring the miscarriage of a 14-year old girl contrary to s.58 of the Offences Against the Persons 1861 Act. The 14-year-old girl had raped on April 27, 1938 by a group of guardsmen at Wellington Barracks in west London. A Doctor had been asked to terminate the pregnancy but had refused on the grounds that he was a Roman Catholic. Subsequently Doctor Bourne admitted the girl to St Mary’s Hospital, Paddington, to carry out the operation free of charge. Doctor Bourne had informed the police of his intentions prior to the termination and afterwards was charged with a criminal offence. During the trial Doctor Bourne gave evidence that having examined the girl, it was his opinion that the continuance of the pregnancy would probably cause serious injury to her. An expert witness called on behalf of Doctor Bourne gave evidence that if the girl had given birth to a child, the consequence were likely to be that she would become a mental wreck. Doctor Bourne conceded that in cases of this sort no doctor would venture to act except after consulting some other member of the profession of high standing, so as to confirm his view that the circumstances were such that an operation ought to be performed and that the act was legal.
The jury were directed that it was for the prosecution to prove beyond reasonable doubt that the operation was not performed in good faith for the purpose only of preserving the life of the girl. The surgeon had not got to wait until the patient was in peril of immediate death, but it was his duty to perform the operation if, on reasonable grounds and with adequate knowledge, he was of opinion that the probable consequence of the continuance of the pregnancy would be to make the patient a physical and mental wreck. In the course of his charge to the jury, MacNaughton J referred to S.1 (1) of the Infant Life (Preservation) Act 1929 and pointed out that the proviso (that a person shall not be guilty of an offence if he acted in good faith to preserve the mother’s life) did not in fact appear in S.58. He went on to say:-

“But the words of that section, ie Section 58 of the 1861 Act, are that any person who ‘unlawfully’ uses an instrument with intent to procure miscarriage shall be guilty of felony. In my opinion the word `unlawfully’ is not, in that section, a meaningless word. I think it imports the meaning expressed by the proviso in Section 1, subsection (1), of the Infant Life (Preservation) Act 1929, and that Section 58 of the Offences Against the Person Act 1861 must be read as if the words making it an offence to use the instrument with intent to procure a miscarriage were qualified by a similar proviso.”

Thus according to MacNaughton J, a person who procured an abortion in good faith for the purpose of preserving the life of the mother would not be guilty of an offence. On the issue of what was meant by ‘preserving the life of the mother,’ MacNaughton J told the jury that:

“… Those words ought to be construed in a reasonable sense, and if, the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequences of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor, who under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother.”

Doctor Bourne was acquitted by the jury under clear directions from the judge. The ruling redefined the boundaries of abortion law and the legal principles established by this case were applied in England and Wales until the enactment of the Abortion Act 1967.

Abortion Act 1967

The Abortion Act of 1967 came into effect on the 27 April 1968 and permitted termination of a pregnancy by a registered practitioner subject to certain conditions. Section 1(1) of the 1967 Act originally provided a person could not be guilty of an offence under the law relating to abortion if a pregnancy was terminated by a registered medical practitioner, if two registered medical practitioners were of the opinion, formed in good faith :

Human Fertilisation and Embryology Act 1990

Section 37 of the Human Fertilisation and Embryology Act 1990 amended paragraphs (a) and (b) of s.1 (1) of 1967 Act and introduced the time limit of 24 weeks for abortion. The Act substituted the following

4. Abortion of the disabled foetus

Abortions are unlawful after the 24th week of gestation except in a few exceptional circumstances defined in law. One of these is when there a risk of fetal abnormality. Thus under the Infant Life (Preservation) Act 1929, the 1967 Act and the HFE Act 1990 there is no time limit at which an abortion can be carried if the foetus is suspected of having a disability. Specifically, for the purposes of the law relating to abortion, anything done with intent to procure a woman’s miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by the s.1 of the 1967 Act. However under s.1 (1)(d) of the 1967 Act an abortion is allowed to take place after 24 weeks if two medical practitioners are of the opinion, formed in good faith, that ‘there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’ (The 1990 Embryology Act changed the time limit for able-bodied abortion to 24 weeks but removed all time limits for abortion for disability.) Consequently, abortion for suspected disability could be carried out up to birth. Since 1996, the Royal College of Obstetricians and Gynaecologists (RCOG) has published guidelines on the termination of pregnancy for fetal abnormality. According to the RCOG, a person is to be regarded as seriously handicapped only if he needs the support described in points 3 and 4 of the World Health Organisation’s scale of the severity of disability. Point 3 refers to ‘assisted performance'(that is, the need for a helping hand) and point 4 to ‘dependent performance'(that is complete dependence on the presence of another person). Within the meaning of the 1967 Act there is no specification of what is a ‘substantial risk’ or what is a ‘ physical’ or ‘mental’ abnormality. The suggestion is that this vagueness reflected the outlook of the medical profession who, at the time the 1967 Act was passed, were reluctant to allow parliamentarians to interfere with matters of clinical judgement. The term ‘serious handicap’ however is not legally defined in the 1967 Act and while terminations have been carried out for abnormalities such as spina bifida or down’s syndrome, pregnancies have also been terminated for abnormalities such as cleft palate and cleft lip (subsequently it was stated that it was agreed by Parliament to leave the wording relating to grounds in the Act to be interpreted by the doctors involved, in discussion with the patient ). In May 1996 ‘The Termination of Pregnancy Restriction Bill’ was given its first reading in the House of Lords. The bill, if passed, would have amended the Abortion Act of 1967 so that to perform terminations on the sole ground of a diagnosis of downs syndrome would become illegal. The bill was introduced into the House of Lords by the conservative peer Viscount Brentford, but a second reading was not requested and the bill never became law. In March 2004 the UK government was asked to review the provisions under the 1967 Act that permitted conditions such as cleft palate and cleft lip to be regarded as ‘serious handicaps’ for the purposes of terminating the lives of the unborn after 24 weeks gestation. In particular the UK government was asked whether doctors would be obliged to accurately state the nature of the ‘serious disability’ when performing an abortion The reply was that in conferring on doctors the duty to reach decisions about the risk of serious handicap under s.1 (1)(d) of the 1967 Act, Parliament had decided that doctors were best placed to reach specialist expert medical judgments on what conditions constitute a ‘serious handicap’. In regard to the proposal that doctors to state the nature of the ‘serious disability’ when performing an abortion, no comments was for coming other than each doctor performing an abortion was required to submit to the Chief Medical Officer a form (HSA4) that is checked and monitored. The question of what constitutes a ‘serious handicap’ was raised before the courts in a recent case in involving the decision of the Chief Constable of West Mercia Constabulary not to pursue a prosecution of doctors who had terminated a pregnancy at more than 24 weeks gestation, where the foetus had been diagnosed with bilateral cleft lip and palate. The Reverend Joanna Jepson, a Church of England curate, had challenged this decision on the basis that bilateral cleft lip and palate was not a serious handicap and the abortion had been unlawful and the doctors should have been charged with an offence under s.58 or s.59 of the Offences Against the persons Act 1861 and/or under s.1 of the Infant Life (Preservation) Act 1929. The police had undertaken an investigation of the case and were satisfied that the abortion was due to a bi-lateral cleft palate and was legally justified and procedurally correctly carried out. Consequently Reverend Joanna Jepson sought a judicial review of the decision that had been taken by the Chief Constable of West Mercia Constabulary. After hearing the application Lord Justice Rose and Mr Justice Jackson held that the case raised serious issues of law and issues of public importance and so granted permission for a judicial review. Subsequent to that decision the police re-investigated the case and sent a file to the Crown Prosecution Service (hereafter ‘CPS’). The CPS however announced that the doctors involved would not face prosecution as the doctors had decided in good faith that a substantial risk existed that the child would be seriously handicapped if born.
While abortion is usually discussed in terms of the rights of the unborn child versus those of the woman to choose, the existing legislation does have a relevance to disabled people. Consequently the abortion of the disabled foetus has also been considered with regard to the provisions of Disability Act 1995 ( hereafter ‘DDA 1995’). Under the DDA 1995 a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities and discrimination within the DDA 1995 is described as being the treatment of disabled people less favourably than others. In context therefore it would appear that the abortion of an abnormal foetus under s.1(1)(d) of the 1967 Act would effectively be discrimination under the DDA 1995. The argument made was that in allowing abortion without a time limit where there is possible abnormality in the foetus, but imposing a time limit of 24 weeks where there is not, the law perhaps reflects and reinforces discrimination against disabled people. The Disability Rights Commission however pronounced that while the 1967 Act wasn’t legally in breach of the DDA 1995 since the act referred to ‘living’ people, continuing to allow abortions on the grounds of potential disability was ‘incompatible with valuing disability and non-disability equally’. It has also been suggested that justification of s.1 (1)(d) 1967 Act does not fit easily with the jurisprudence which has developed to deal with issues arising from the selective treatment subjects such as impaired neonates. In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] the Court of Appeal rejected the finding of the high court (family division) that a weaker conjoined twin who was only sustained by her sister’s blood flow and who would quickly die if the twins were not surgically separated, had no continued interest in living. The Court of Appeal held that the life of the weaker twin did have a value, even though she had severely limited brain function and was incapable of crying or expressing pleasure or pain. According to the Court of Appeal such an operation would bring the conjoined twin’s life to an end before it has run its natural span and thus it was ‘contrary to her best interests.’ It is further suggested that the gulf between the standards applied in Re A (Children) (Conjoined Twins: Surgical Separation) and in s.1 (1)(d) 1967 Act can be clearly illustrated by taking the example of Downs Syndrome. In particular pre-natal testing now predicts a large number of likely cases of Down’s and termination is normally offered under s.1 (1)(d) 1967 Act. However, in the case of Re B (A minor) (Wardship: Medical Treatment) [1981] the courts held that it would be unlawful to withhold treatment to remove an intestinal blockage from a child suffering from Down’s as there was no evidence that it was in this child’s best interests to die.
The rights of the unborn child and the abnormal foetus have also been raised in relation to the United Nations Convention on the Rights of the Child 1989. In context on 20 November 1959 the General Assembly of the United Nations adopted the second Declaration of the Rights of the Child. This consisted of ten articles and incorporated the guiding principle of working in the best interests of the child. Of particular note in the preamble is the statement that, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.’ In context therefore there may well be a strong argument that the provisions of the 1967 Act, and in particular that an abortion may be carried out if the ‘child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped,’ would be contrary to the rights of child under the Declaration of the Rights of the Child.
Although under s.1 (1)(d) 1967 an abortion may be carried out after 24 weeks if there is a substantial risk that the child will be born with seriously handicapped, the issue as to whether the pregnancy should be terminated is left to the decision of the doctors and patient. Under the guidelines issued by the RCOG the overriding principle when a fetal abnormality is suspected or diagnosed is that parents are the lead decisions makers with appropriate support. Thus in (1) Sally Margaret Rand (2) Peter Frederick Rand v East Dorset Health Authority (2000) it was held that where the defendant’s negligence had resulted in the wrongful birth of a disabled child, the parents had a legally maintainable claim for the financial consequences flowing from that negligence, limited to the consequences flowing from the child’s disability, and not from its birth. Similarly in the recent Court of Appeal of Parkinson v St James and Seacroft University Hospital NHS Trust [2002] the mother, who had undergone a negligently performed sterilisation operation, conceived and bore a child who was born with severe disabilities. The Court of Appeal held that the mother could not recover the whole cost of bringing up the child, but she could recover the additional costs she would incur so far as they would be attributable to the child’s disabilities.
In contrast to the cases of Rand and Parkinson where it could be shown that the pregnant woman had been advised about the risk of her baby being born with disabilities and had been given the option to terminate the pregnancy, the doctor would not be liable in negligence (see Michelle Anne Brindley v Queen’s Medical Centre University Hospital NHS Trust (2005) ).
A recent ruling from the United Nations Human Rights Committee would suggest that a member state that fails to make lawful abortion available for fetal anomaly is likely to be held to be in breach of its international human rights obligations. On 17 November, 2005 the United Nations Human Rights Committee gave judgment in a case involving a pregnant 17-year-old young woman who had been diagnosed with an anencephalic foetus (see Huaman v Peru ). Under Peruvian law an abortion was only allowed if there were risk to the woman’s life or of grave injury to her health. As a consequence, the young woman was not allowed to have an abortion and had the baby. The baby survived for four days, during which time the young woman was required to breast-feed, whereupon which she suffered depression. Following a complaint by the young woman under the International Covenant on Civil and Political Rights (ICCPR), the Committee ruled in her favour. By denying her an abortion, the state had forced her to either risk a back street abortion or endure a futile pregnancy to term which the Committee had described as being an ‘extended funeral’.
The Committee held that a number of the young woman’s rights had been violated – Article 2 of the International Covenant on Civil and Political Rights, which guarantees an effective domestic remedy, Article 7 (the prohibition on inhuman and degrading treatment), Article 17 (the right to privacy), and Article 24 (the right of children to legal protection without discrimination). The suggestion therefore is that this decision is likely to set a precedent for other human rights bodies, in determining complaints from women denied access to legal abortion. A preliminary reading of the 1967 Act suggests that only s.1 (1)(d) can be used for terminations for fetal disability, but it has also been suggested that s.1 (1)(a) of the 1967 Act may also used. Thus under s.1 (1)(a) abortion may be carried out if two registered medical practitioners are of the opinion, formed in good faith that ‘the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family.’ Significantly one set of RCOG guidance implicitly notes the potential use of this ground for fetal disability. Under its guidance the RCOG states that

‘Women vary in their reaction to being told that their fetus is, or may be, abnormal. Occasionally a woman feels strongly that she is unable to accept a probability of risk or a degree of handicap that her medical practitioners consider less than substantial or serious. Under such circumstances, and only when the gestation is less than 24 weeks, the practitioners may decide that abortion has become necessary to protect her mental health.’

Finally, the wording contained within the 1967 makes it clear that a medical opinion formed in good faith is sufficient to satisfy the legal requirements. Thus it may be strongly argued that a substantial risk of serious handicap need not actually exist provided that two doctors are willing to certify in good faith that it does indeed exist.