Gender-specific abortion: law and ethics

Reference to Canadian legislation by this blog is becoming a frequent occurrence, and in relation to the law and ethics of gender-specific abortion, the Library of Congress web page Sex Selection & Abortion: Canada provides an interesting comparison to the UK situation: “since 1988, Canada has not had a law prohibiting any type of abortion, including abortions for the purpose of sex selection, although there have been several attempts at legislative reform that have failed”.

However, under section 5(e) of Canada’s Assisted Human Reproduction Act, 2004 S.C. ch. 2: “no person shall: [f]or the purpose of creating a human being, perform any procedure or provide, prescribe or administer any thing that would ensure or increase the probability that an embryo will be of a particular sex, or that would identify the sex of an in vitro embryo, except to prevent, diagnose or treat a sex-linked disorder or disease.”

Abortion Act 1967

Back to the UK and a clarification of the Prime Minister’s statement at PMQs on 11 September: “Let us be clear that abortions on the basis of a child’s sex are wrong and illegal in our country” [1].  Section 1(1) of David Steel’s 1967 Abortion Act commences “[s]ubject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion . . . . . . .”, [emphasis added].

“The law relating to abortion” includes inter alia sections 58 and 59 of the Offences Against the Person Act 1861 and the whole of the Infant Life (Preservation Act) 1929 Abortion remains illegal under the 1861 and 1929 Acts, and the 1969 Act provides a defence to these for doctors, ‘acting in good faith’, who authorise an abortion under one of the grounds within section 1(1) and (2) [2].

Guidance and interpretations of the Act

However, abortion on the grounds of fetal sex is not explicitly identified within the Act, but then neither is it specifically prohibited.  Guidance has been provided by the pro-choice [1] British Pregnancy Advisory Service, (BPAS), document published in May 2013, Britain’s Abortion Law: What it says and why, and also by the British Medical Association, (BMA), in the 2007 document The law and ethics of abortion: BMA Views”, although neither constitutes statutory guidance and therefore should not be relied upon as such.

The BPAS document makes the Delphic statement [page 8]: “Is abortion for reasons of fetal sex illegal under the Abortion Act? No. The law is silent on the matter. Reason of fetal sex is not a specified ground for abortion within the Abortion Act, but nor is it specifically prohibited. Other reasons for abortion that are widely accepted as ‘good’ reasons – for example, if the woman has been raped – are not specified either.”

Furthermore, it suggests that some have claimed that this is illegal is due to confusion with the provisions of the Human Fertilisation and Embryology Act 1990 (as amended, 2008), in relation to fertility treatment, which prohibits pre-implantation genetic diagnosis (PGD) for the purpose of non-medical sex selection. However, the distinction between these two provisions is made clear in the BMA guidance, which considers the two issues separately: section 1.6, Selective abortion of multiple pregnancy; and section 1.7,  Abortion on grounds of fetal sex.

With regard to the former, the BMA notes that legality of selective reduction of multiple pregnancies was clarified in 1990 by section 37(5) of the Human Fertilisation & Embryology Act which amended section 5 of the Abortion Act explicitly to include “in the case of a woman carrying more than one fetus, her miscarriage of any fetus”. Consequently, selective reduction of pregnancy would be lawful under the provisions of the amended 1967 Act.  However, the BMA states

“[t]he Association does not, however, consider it acceptable to choose which fetuses to abort on anything other than medical grounds. Where there are no medical indications for aborting particular fetuses, the choice should be a random one. The Association would not consider it acceptable, when making this decision, to accede to the parents’ desire for a male or a female child.”

On abortion of the grounds of fetal sex, the BMA position reflects that of the BPAS

“[f]etal sex is not one of the criteria for abortion listed in the Abortion Act of 1967 and therefore termination on this ground alone has been challenged as outwith the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful.  . . . . . . . The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders..”

However, in a letter Abortion Act 1967 (As amended): Termination of pregnancy circulated on 23 February 2012, the Chief Medical Officer for England and Chief Medical Advisor to the UK Government [4] stated unambiguously

“Sex selection is not one of the lawful grounds for termination. It is illegal for a practitioner to carry out an abortion for that reason alone, unless the certifying practitioners consider that an abortion was justified in relation to at least one of the section 1(1) grounds. A sex-linked inherited medical condition may be relevant to the practitioner’s consideration of whether any of the section 1(1) grounds are met in a specific case.”

Professor Dame Sally C Davies further noted

“the termination of pregnancies is prescribed as a regulated activity under the Health and Social Care (Regulated Activities) Regulations 2010. Anyone (in England) who carries on a regulated activity without being registered by the CQC in respect of it is guilty of an offence under the 2008 Act. Regulation 20 of the Health and Social Care (Registration) Regulations 2009 specifies various requirements relating to termination of pregnancies that apply to a registered person who carries on or manages the regulated activity consisting of the termination of pregnancies; and is not an English NHS body.

Prosecution under the Act

An earlier post on gender-specific abortion concluded by suggesting that some of those who are advocating the prosecution of the doctors exposed by the Daily Telegraph could be deflecting attention from the bigger picture, since in the 12 months preceding June 2013, there were no prosecutions for terminations that fell outside the Abortion Act,  [HL Hansard, 6 Jun 2013 : Col. 1274].  This is all the more significant given Ellie Lee’s comment

“the CPS’s decision not to bring charges against the abortion doctors is merely the latest instalment in an 18-month-long saga, one in which abortion providers have been under incredible scrutiny”.

This emphasises the difficulty in the CPS mounting a successful prosecution under the Abortion Act, in which doctors are afforded a high degree of discretion on working within its provisions providing they are acting in “good faith”.  The BPAS Guidance states:

What does it mean for doctors to ‘act in good faith’?

To show that an opinion has been formed ‘in good faith’ does not mean that authorising an abortion must be the ‘right’ course of action, simply that the doctor has not been dishonest or negligent in forming that opinion. What makes an abortion lawful is the doctor’s opinion that there are lawful grounds for the procedure, rather than the fact that those grounds exist.

So, for example, if two doctors believe in good faith that abortion carries less risk to a woman’s physical or mental health than carrying the pregnancy to term, this makes the abortion legal – even if, in the eventuality, it would have been safer to carry the pregnancy to term (for example, if the abortion resulted in death or injury).  Similarly, if a woman states that she cannot afford to continue the pregnancy, the doctor is not obliged to check that she really is lacking in funds.”

The implication of the provisions with section 1 of the 1969 Act, as they affect the CPS bringing a prosecution, are discussed in the post by Greg Callus “Abortion, Gender & Prosecutorial Discretion”.  This notes since that the Act contains no standard of “good faith”, it is very difficult to prove beyond reasonable doubt that a doctor a acted otherwise. The article states that other than the leading case R v Smith (John Anthony James) [1974] 58 Cr App R 106 the only other post-1967 conviction of a doctor is probably that which was overturned on appeal: R v Price (Herbert) [1969] 1 QB 541.

The CPS criteria for prosecution are available here, and the Full Code Test comprises two stages: (i) the evidential stage; followed by (ii) the public interest stage, and Callus examines their application to the case of the two doctors.  He notes: there would be significant legal obstacles in obtaining a successful prosecution on the basis of ss58/59 of the 1967 Act in combination with the Criminal Attempts Act 1981; it is uncertain whether the mere agreement of the doctors is an act that is ‘more than preparatory’ of the underlying offence; and whether R v Smith (supra) is an appropriate authority

He concludes by doubting “that the CPS’ decision – namely, its discretion in assessing a doctor’s discretion – could be described as either irrational or “Wednesbury unreasonable”. Even if morally repugnant to many, it was almost certainly a conclusion within the bounds the CPS could reasonably reach”, and suggests that the decision would easily resist judicial review.”

On this basis, therefore, it could be argued that the major problem with the CPS decision was its unclear presentation in its statement rather than the substance of the decision itself.  However, not all would agree, and it has been reported that the Christian Legal Centre is considering a private prosecution of the two doctors and/or judicial review, once the Director of Public Prosecutions has made his expected further statement on the matter.

Other ethical issues

In his Catholic Herald blog, Fr Alexander Lucie-Smith makes the suggestion that It is a small step from saying that sex-selective abortion is wrong to being pro-life, stating

“for if you concede the point about Gosnell [5], and if you concede that “wrong sex” abortion is wrong, it is quite hard to argue that some abortions are right. For once you make the point that we have no right to take the life of, let us say, a female foetus on the grounds that she is female, you are left with the uncomfortable realisation that if that one abortion is wrong, so may they all be.”

However, the converse argument does not necessarily does not necessarily follow – if one believes that all abortion is wrong per se, this view encompasses gender-specific abortion, and so to argue that gender-specific abortion is particularly abhorrent, other factors must be considered.

[1] Ellie Lee commented on Spiked Online: “It is staggering that two consecutive secretaries of state for health have made entirely incorrect statements in public about the law”.

[2] The only offence created by the 1969 Act is the summary offence in section 2(3) relating to wilfully breaching the certification and record-keeping demanded of doctors under the Abortion Regulations 1991.

[3] bpas is Britain’s largest single abortion provider caring for over 55,000 women each year.  The organization “supports reproductive choice and health by advocating and providing high quality, affordable services to prevent unwanted pregnancies with contraception or end them by abortion.”

[4] Professor Dame Sally C Davies became Chief Medical Officer for England and Chief Medical Advisor to the UK Government on 3 March 2010. She retains responsibility for Research and Development, and is the Chief Scientific Adviser for the Department of Health.

[5] The inclusion of the Kermit Gosnell example, (an extreme example of clearly criminal behaviour that most, though not all, pro-choice supporters would condemn) and the superficial assumption regarding the intention of the CPS, (rather than its ability within the law to bring forward a prosecution), detract from the overall valid points that Fr Lucie-Smith is making.

4 thoughts on “Gender-specific abortion: law and ethics

    • Thank you for your comment. This point made also made by Fr Lucie-Smith, now included in the updated version, which also revises the comments on the Canadian legislation and the associated link.

  1. Pingback: Gender-specific abortion: the CPS Statement | Law & Religion UK

  2. Pingback: Gender-specific abortion prosecutions halted | Law & Religion UK

Leave a Reply

Your email address will not be published. Required fields are marked *