Gender-selective abortion featured twice in the House of Lords on Thursday 3 April. In a Written Answer to the question asked by Lord Taylor of Warwick “To ask Her Majesty’s Government what steps they are taking to prevent the selective abortion of girls in ethnic communities”, the Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con) replied, HL Hansard 3 Apr 2014 : Vol 753 Col WA217
“Abortion on the grounds of gender alone is illegal. The 1967 Abortion Act states that two practitioners have to be “of the opinion, formed in good faith” that the woman has grounds for an abortion according to the criteria set out in that Act.
The Chief Medical Officer for England has written twice (on 23 February 2012 and 22 November 2013) to all practitioners reminding them of their responsibilities under the Abortion Act.”
However, in the afternoon there was an opportunity to progress from this quod scripsi, scripsi response during the short debate in the Grand Committee where Baroness Knight of Collingtree put the question: “To ask Her Majesty’s Government what steps they intend to take to investigate reported law breaking by those carrying out terminations of pregnancies”, HL Hansard, 3 Apr 2014 : Vol 753 Col GC280. Whilst, unsurprisingly, these basic facts were reiterated, additional information was presented that will be of value for informing future debate. Their Lordships discussions touched on a numbers of concerns: the two doctors identified in the Daily Telegraph “sting”, who were offering gender-selective abortions, here; the insensitive treatment by hospitals of foetuses, here; and the recent the Department of Health consultation Procedures for the Approval of Independent Sector Places for the Termination of Pregnancy, here.
Lord Mackay of Clashfern (Con) made an authoritative statement on the law in this area, [3 Apr 2014 : Col GC284]
“… First, I have seen it suggested that abortion on the ground of sex selection is lawful, or not unlawful, in this country. I do not believe that is correct. The law is quite clear that an attempt to procure abortion before the Act was unlawful and now the Act allows abortion to be lawful on four grounds, none of which is sex selection. Therefore it is absolutely clear that the law prohibits that as a ground of abortion in this country.
Responsibility for seeing that the law is observed in this area, as in other areas, is with the prosecuting authorities, including the police and the DPP. The DPP has drawn attention to difficulties in relation to the arrangements that have been sanctioned by the Department of Health in this connection. … I cannot see how a medical practitioner could pre-sign the form in a way that conforms with the statute.
My noble friend [Lord Gordon of Strathblane (Lab), 3 Apr 2014 : Col GC282] said that the law is construed in such a way as to allow abortion on demand, but the law does not do that at all. It is quite wrong to suggest that the signing of the form could be done responsibly without proper knowledge of the situation of the patient at the time.”
However, the difficulty of relying upon quasi-legislation for its implementation was highlighted by Baroness Hollins (CB), who said [3 Apr 2014 : Col GC283]
“The Minister recently stated that updated guidance is being prepared for abortion providers to make it, “abundantly clear that gender selection is illegal”.—[Official Report, 12/2/14; col. 639.] However, guidance alone is not legally binding.”
The Lord Bishop of Leicester noted that in addition to the sensitive issue of gender-selective abortion, [3 Apr 2014 : Col. GC284],
“abortion on the grounds of serious handicap or disability is currently the subject of some renewed debate raising concern that it is contrary to the spirit of equality legislation as undermining the status and role of disabled people in society.
Will the Minister comment on the concern that while foetuses are not afforded legal personhood the law on this is somewhat incoherent as foetal deaths prior to 24 weeks are classed as miscarriages but must be registered as stillbirths after that?
Will he comment on the recommendations in last year’s report by the Pro-Life APPG on abortion on grounds of disability which included recommendations for either reducing the upper time limit on abortion on grounds of disability from birth to make it equal to the upper limit for able-bodied babies or repealing Section 1(1)(d) of the Abortion Act altogether?”
In summing up the debate, [3 Apr 2014 : Col. GC291], the Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con), stated inter alia, (our emphasis),
“Clarification of the law remains a matter for Parliament, not for Government … there is no scope for secondary legislation to amend the grounds on which abortion takes place. It would be a matter for primary legislation. It is vital for everyone, regardless of their views on abortion, to be assured that the law on abortion is operating as Parliament intended.
“The Government’s view has been clearly stated on many occasions—that abortion on grounds of gender alone is illegal … I confirm to the noble Lord, Lord Hunt of Kings Heath, that the grounds for abortion are set out in the Abortion Act 1967. It is true that these grounds make no reference to gender. While there is an extremely limited number of circumstances in which gender may be a factor in considering other grounds—for example, a gender-related abnormality—the department has made a number of recent public statements through the CMO letters, Answers to Parliamentary Questions and media lines, stating our view that abortion on grounds of gender alone is illegal, and we firmly stick by that view.”
“Analysis conducted by the Department of Health indicates that birth ratios—that is to say, the ratio of boys born as compared with girls—in this country are within normal limits. This is true for the population overall, and is also true for births to women born abroad who now live in this country. This analysis was first conducted and published in May 2013. This is being updated and we intend to continue to conduct a similar analysis on an annual basis, because we regard this issue as extremely important.”
“ … we believe that the department’s analysis, which is based on birth registrations, is more accurate than the Independent’s analysis, which was based on household composition. The department’s analysis showed that birth ratios were within normal limits.”
“It is not usually possible to identify the sex of a baby until the second ultrasound scan, which takes place at around 18 to 21 weeks’ gestation. In 2012, nearly 98% of abortions were performed before 18 weeks’ gestation, so the gender of the foetus is not known for most abortions … I close by emphasising again that we are not complacent on these issues. We remain and will continue to be very vigilant.”