Seminar 2 - Abortion
Reading
G.T. Laurie, S.H.E. Harmon, and E.S. Dove, Mason and McCall Smith’s Law and Medical
Ethics (11th edn, OUP 2019). Pages 309 – 330.
● Attitudes to fertility control vary in parallel with such diversity of effect. At one end of
the scale, we have the ultra-conservative ethicist who perceives sexual intercourse
and procreation as a unitary function and will accordingly, object to marrier methods
of contraception. In the middle is the purist who sees any interference with the
human body as unethical unless it be for therapeutic purposes and who will condemn
litigation of the fallopian tube as being fundamentally wrong. On the other end lies
those committed to the concept that a woman’s body is hers to dispose of as she
pleases and who advocates abortion on demand.
● Fertility control is not simply a matter of private concern, the community has a
legitimate and significant interest. It includes control of the nature of the family which
may encompass anything from selection of the sex of one's children to manipulation
of the families genetic pool and it is in this field in particular that the seeds of ethical
conflict are sown.
● The issue in relation to abortion lies upon the question: ‘when does life begin?’
● Attitudes to abortion depend almost entirely on where the holder stands in respect of,
on the one hand, the fetal interest in life and, on the other, a woman's right to control
her own body and it is this which perpetuates the near intractable moral conflict with
which the law must come to terms with.
● There is concern that medical abortion will inevitably come to be regarded as a safe
form of contraceptive back up. It overtook surgical abortions for the first time in 2014.
The result must be to blur the essential ethical distinction between contraception and
abortion while these two processes may be comparable in that they both prevent new
life, it is only abortion that can be seen as taking life.
● The anomalous position of the father in the right to life to be also has to be
considered full stop it is clear from the current worldwide decisions that, in so for far
as abortion is concerned, he has for practical purposes no rights.
● Nothing can alter the fact that it is the woman who carries the foetus for 9 months
and her health is mainly at risk during that time and it is this factor which explains the
difference in legal attitudes to the father's interests in his foetus. An objecting father
may well deserve sympathy but, in the final analysis a woman's right to control her
body and must take precedence.
E Lee, ‘Young Women, Pregnancy, and Abortion in Britain: A Discussion of Law in Practice’
(2004) 18 International Journal of Law, Policy and the Family 283.
● The statutory provision for abortion has been subject to a great deal of criticism.
● It relies upon a diminished version of reproductive autonomy because, ‘…women
have no right to terminate an unwanted pregnancy, and must instead rely upon the
beneficent exercise of medical discretion’. It vests ‘remarkable authority’ in medical
practitioners, because it ‘enshrines deference to medical opinion, and legitimizes the
doctor's decision that an abortion would be lawful’.
, ● Relatively high levels of social deprivation correlate strongly with low abortion
proportions. In areas which are relatively affluent young women are more likely to
have abortions as teenagers if they conceive than are those from less affluent areas.
● Suggested that young women who experience their present lives as insecure, an
experience related to a context of relatively greater social deprivation, are more likely
to view motherhood as something that may change their life in a positive way.
● Those who are certain that their future life will develop through higher education and
success in employment - a perception of life more characteristic of those from more
affluent areas and backgrounds - are more likely to reject motherhood and opt for
abortion.
● Waiting times are long and there are funding inequalities and low use of medical
abortions amounting to problems that should be addressed. More than ever before,
doctors will interpret the law in a way that defines threats to health, especially mental
health, very broadly, thus allowing most abortion requries to be met.
● The law at present is interpreted in a way that arguably makes abortion, in early
pregnancy at least (12 weeks), accessible to young women.
● While the law constructs abortion decisions as a medical matter, young women, like
women generally, experience making decisions about pregnancy as a private matter.
● Parents feature strongly as part of young women's intimate world, and it was notable
that young women generally found these interactions helpful or unproblematic. (At
the same time, legal requirement for parental consent could clearly generate
significant problems in cases where parents are strongly anti-abortion.)
● The absence of a clear and overt intention to view reproductive control as a ‘good’,
that should be upheld and promoted in society, underpins the relative inaccessibility
of abortion later in pregnancy.
● The rules regulating abortion should champion reproductive choice and autonomy.
S Mcguinness, ‘Law, Reproduction, and Disability: Fatally “Handicapped”?’ (2013) Medical
Law Review 213.
● A woman’s right to choose to terminate her pregnancy on the basis of foetal disability
raises concerns about social values regarding the lives of people with disability.
● Perhaps the time has come to push for legal reform of abortion regulations to
reconceptualise disability within reproductive choices.
● S1 (1) (d) enshrines a problematic concept of disability in law and is also problematic
because of the potential presumptive effect it could have on choices following
prenatal screening. It is a relic of an overly medicalised approach to disability and
abortion, which although useful as part of the abortion reform process needs now to
be rejected as it is no longer fit for purpose.
● S1 (1) (d) - 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 medicial practitioners are of the
opinion, formed in good faith (d) 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.
● How ‘serious handicapped’ should be defined has remained subject to ambiguity and
disagreement.
● Wicks et al - the legislation is deliberately vague, presumably in an effort to avoid
fettering the discretion of the two certifying doctors.
, ● UK Disability Rights Commission - the section is offensive to many people, it
reinforces negative stereotypes of disability and there is substantial support for the
view that to permit terminations at any point during a pregnancy on the ground of risk
of disability, while time limits apply to other grounds set out in the Abortion Act, is
incompatible with valuing disability and non-disability equally.
● John Robertson - argues reproductive autonomy legitimately encompasses not just
the choice of whether or not to have children but also choice about the sorts of
children one has.
● The problem is that it enshrines a concept of disability that is inconsistent with current
socio-cultural understandings.
Cases
Greater Glasgow Health Board v Doogan and Another [2014] UKSC 68.
The Supreme Court rejected a claim to section 4 protection by two Midwives whose primary
duties consisted of coordinating the work of the labour ward. protection only extended to
those professionals taking part in medical treatment itself it did not extend to those who
carried out ancillary, administrative and managerial tasks which are necessarily, but
indirectly, associated with the provisions of termination services.
CP (A Child) v Criminal Injuries Compensation Authority [2014] EWCA Civ 1554.
There is no legal personhood In a foetus but a neonate has all the legal attributes and rights
to protection of a ‘reasonable creature in being’ and this distinction, as we will see, leads to
some anomalous conclusions insofar as it excludes a moral dimension.
Recently, this was confirmed as a matter of legal principle by the Court of Appeal - the court
held that because a foetus did not constitute a separate legal person it could not be the
subject of the criminal offence of grievous bodily harm. The facts related to a pregnant
woman who excessively consumed alcohol in the knowledge that it could harm her unborn
child. Notwithstanding, on the above reasoning, a subsequent claim to compensation by the
7-year old daughter was unsuccessful.
Jepson v Chief Constable of West Mercia [2003] EWHC 3318.
An attempt to legally challenge the decision of two doctors who authorised a post 24-week
aboriton in the case of cleft lip and palate. The case was a successful application for
permission to proceed with judicial review for the police's decision not to investigate doctors
who authorized an abortion for bilateral cleft lip and palate at 28 weeks under the disability
ground of the Act. Although the issue was left unresolved, the case raises various issues on
the legality of an abortion for foetal disability.
The main thrust of the claim was whether cleft lip and palate constitutes 'serious handicap'
within the meaning of section 1(1)(d) of the Abortion Act 1967. Notions of remediability were
invoked to support of this claim.
The complainant was successful in achieving a judicial review but the CPS decided against
pursuing the case on the basis that the doctors had acted in good faith and that the risk of
serious handicap was substantial.
Reading
G.T. Laurie, S.H.E. Harmon, and E.S. Dove, Mason and McCall Smith’s Law and Medical
Ethics (11th edn, OUP 2019). Pages 309 – 330.
● Attitudes to fertility control vary in parallel with such diversity of effect. At one end of
the scale, we have the ultra-conservative ethicist who perceives sexual intercourse
and procreation as a unitary function and will accordingly, object to marrier methods
of contraception. In the middle is the purist who sees any interference with the
human body as unethical unless it be for therapeutic purposes and who will condemn
litigation of the fallopian tube as being fundamentally wrong. On the other end lies
those committed to the concept that a woman’s body is hers to dispose of as she
pleases and who advocates abortion on demand.
● Fertility control is not simply a matter of private concern, the community has a
legitimate and significant interest. It includes control of the nature of the family which
may encompass anything from selection of the sex of one's children to manipulation
of the families genetic pool and it is in this field in particular that the seeds of ethical
conflict are sown.
● The issue in relation to abortion lies upon the question: ‘when does life begin?’
● Attitudes to abortion depend almost entirely on where the holder stands in respect of,
on the one hand, the fetal interest in life and, on the other, a woman's right to control
her own body and it is this which perpetuates the near intractable moral conflict with
which the law must come to terms with.
● There is concern that medical abortion will inevitably come to be regarded as a safe
form of contraceptive back up. It overtook surgical abortions for the first time in 2014.
The result must be to blur the essential ethical distinction between contraception and
abortion while these two processes may be comparable in that they both prevent new
life, it is only abortion that can be seen as taking life.
● The anomalous position of the father in the right to life to be also has to be
considered full stop it is clear from the current worldwide decisions that, in so for far
as abortion is concerned, he has for practical purposes no rights.
● Nothing can alter the fact that it is the woman who carries the foetus for 9 months
and her health is mainly at risk during that time and it is this factor which explains the
difference in legal attitudes to the father's interests in his foetus. An objecting father
may well deserve sympathy but, in the final analysis a woman's right to control her
body and must take precedence.
E Lee, ‘Young Women, Pregnancy, and Abortion in Britain: A Discussion of Law in Practice’
(2004) 18 International Journal of Law, Policy and the Family 283.
● The statutory provision for abortion has been subject to a great deal of criticism.
● It relies upon a diminished version of reproductive autonomy because, ‘…women
have no right to terminate an unwanted pregnancy, and must instead rely upon the
beneficent exercise of medical discretion’. It vests ‘remarkable authority’ in medical
practitioners, because it ‘enshrines deference to medical opinion, and legitimizes the
doctor's decision that an abortion would be lawful’.
, ● Relatively high levels of social deprivation correlate strongly with low abortion
proportions. In areas which are relatively affluent young women are more likely to
have abortions as teenagers if they conceive than are those from less affluent areas.
● Suggested that young women who experience their present lives as insecure, an
experience related to a context of relatively greater social deprivation, are more likely
to view motherhood as something that may change their life in a positive way.
● Those who are certain that their future life will develop through higher education and
success in employment - a perception of life more characteristic of those from more
affluent areas and backgrounds - are more likely to reject motherhood and opt for
abortion.
● Waiting times are long and there are funding inequalities and low use of medical
abortions amounting to problems that should be addressed. More than ever before,
doctors will interpret the law in a way that defines threats to health, especially mental
health, very broadly, thus allowing most abortion requries to be met.
● The law at present is interpreted in a way that arguably makes abortion, in early
pregnancy at least (12 weeks), accessible to young women.
● While the law constructs abortion decisions as a medical matter, young women, like
women generally, experience making decisions about pregnancy as a private matter.
● Parents feature strongly as part of young women's intimate world, and it was notable
that young women generally found these interactions helpful or unproblematic. (At
the same time, legal requirement for parental consent could clearly generate
significant problems in cases where parents are strongly anti-abortion.)
● The absence of a clear and overt intention to view reproductive control as a ‘good’,
that should be upheld and promoted in society, underpins the relative inaccessibility
of abortion later in pregnancy.
● The rules regulating abortion should champion reproductive choice and autonomy.
S Mcguinness, ‘Law, Reproduction, and Disability: Fatally “Handicapped”?’ (2013) Medical
Law Review 213.
● A woman’s right to choose to terminate her pregnancy on the basis of foetal disability
raises concerns about social values regarding the lives of people with disability.
● Perhaps the time has come to push for legal reform of abortion regulations to
reconceptualise disability within reproductive choices.
● S1 (1) (d) enshrines a problematic concept of disability in law and is also problematic
because of the potential presumptive effect it could have on choices following
prenatal screening. It is a relic of an overly medicalised approach to disability and
abortion, which although useful as part of the abortion reform process needs now to
be rejected as it is no longer fit for purpose.
● S1 (1) (d) - 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 medicial practitioners are of the
opinion, formed in good faith (d) 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.
● How ‘serious handicapped’ should be defined has remained subject to ambiguity and
disagreement.
● Wicks et al - the legislation is deliberately vague, presumably in an effort to avoid
fettering the discretion of the two certifying doctors.
, ● UK Disability Rights Commission - the section is offensive to many people, it
reinforces negative stereotypes of disability and there is substantial support for the
view that to permit terminations at any point during a pregnancy on the ground of risk
of disability, while time limits apply to other grounds set out in the Abortion Act, is
incompatible with valuing disability and non-disability equally.
● John Robertson - argues reproductive autonomy legitimately encompasses not just
the choice of whether or not to have children but also choice about the sorts of
children one has.
● The problem is that it enshrines a concept of disability that is inconsistent with current
socio-cultural understandings.
Cases
Greater Glasgow Health Board v Doogan and Another [2014] UKSC 68.
The Supreme Court rejected a claim to section 4 protection by two Midwives whose primary
duties consisted of coordinating the work of the labour ward. protection only extended to
those professionals taking part in medical treatment itself it did not extend to those who
carried out ancillary, administrative and managerial tasks which are necessarily, but
indirectly, associated with the provisions of termination services.
CP (A Child) v Criminal Injuries Compensation Authority [2014] EWCA Civ 1554.
There is no legal personhood In a foetus but a neonate has all the legal attributes and rights
to protection of a ‘reasonable creature in being’ and this distinction, as we will see, leads to
some anomalous conclusions insofar as it excludes a moral dimension.
Recently, this was confirmed as a matter of legal principle by the Court of Appeal - the court
held that because a foetus did not constitute a separate legal person it could not be the
subject of the criminal offence of grievous bodily harm. The facts related to a pregnant
woman who excessively consumed alcohol in the knowledge that it could harm her unborn
child. Notwithstanding, on the above reasoning, a subsequent claim to compensation by the
7-year old daughter was unsuccessful.
Jepson v Chief Constable of West Mercia [2003] EWHC 3318.
An attempt to legally challenge the decision of two doctors who authorised a post 24-week
aboriton in the case of cleft lip and palate. The case was a successful application for
permission to proceed with judicial review for the police's decision not to investigate doctors
who authorized an abortion for bilateral cleft lip and palate at 28 weeks under the disability
ground of the Act. Although the issue was left unresolved, the case raises various issues on
the legality of an abortion for foetal disability.
The main thrust of the claim was whether cleft lip and palate constitutes 'serious handicap'
within the meaning of section 1(1)(d) of the Abortion Act 1967. Notions of remediability were
invoked to support of this claim.
The complainant was successful in achieving a judicial review but the CPS decided against
pursuing the case on the basis that the doctors had acted in good faith and that the risk of
serious handicap was substantial.
