An update on the action against one of the doctors in the Telegraph ‘sting’, and the report from the Department of Health
The Telegraph ‘sting’
On 3 November, the Daily Mail reported that “a doctor who allegedly agreed to abort a foetus simply because it was a girl – and then lied about the reason he terminated it – has been suspended for only three months by a medical tribunal”. Earlier posts have followed developments in this case, most recently in March, when the Crown Prosecution halted a private prosecution that had been initiated against the two doctors involved in the Daily Telegraph “sting”. In these two cases, each defendant asked the CPS to intervene and stop the prosecutions under section 6(2) of the Prosecution of Offences Act 1985, following which the CPS was required to consider them according to the test set out in the Code for Crown Prosecutors; if, as was the case, the test was not met, the CPS had no choice but to stop the case.
However, one of the doctors involved has now been suspended for three months by the Medical Practitioners Tribunal Service, which found that he agreed to record a false reason for a woman wanting to terminate her pregnancy and was therefore acting dishonestly. The Mail reported
“As part of The Telegraph sting, a pregnant woman, known as Ms A, visited Dr Rajmohan and told him she wished to have an abortion because she and her husband did not want to have a baby girl. In response, the doctor allegedly said: ‘That’s not fair. It’s like female infanticide isn’t it?’ However, when the woman then asked if he could list an alternative reason for the termination, he said: ‘That’s right, yeah, because it’s not a good reason any time …,’ according to the newspaper. He reportedly added: ‘I’ll put too young for pregnancy, yeah?’
Serious Crime Act 2015
On 23 February, the Commons defeated by 292 to 201 a cross-party bid to clarify in law that abortion on the grounds of gender alone is illegal in the UK, [HC Hansard 23 Feb 2015 Vol 593(111) Col 50]. This would have been problematic, since the wording would have had the [unintended?] consequences of conferring personhood on the foetus. However, the House votes by 491 to 2 that New Clause 25 would be added to the Bill; this now forms section 84 of the Act, Termination of pregnancy on grounds of sex of foetus. Under these provisions, the Secretary of State is required to arrange for an assessment to be made of the evidence of termination of pregnancy on the grounds of the sex of the foetus and to publish the outcome of such an assessment within six months of Royal Assent (i.e. by 3 September 2015). In addition, the SofS is required to consider the assessment and either determine and publish a strategic plan to tackle substantiated concerns identified in the assessment, or publish a statement and explanation as to why such a plan is not required. Where the Secretary of State determines that a strategic plan is needed he or she has a further six months (from the date of the publication of the assessment) to lay a copy of the plan before Parliament.
On 27 August, the Department of Heath published two documents: Assessment of termination of pregnancy on grounds of the sex of the foetus; and Sex-selective abortion: a systematic map of the volume and nature of the research. The former concludes with a “Statement and explanation of why a plan is not required”, [page 13], which explains that within the limited timescale set down by the Act,
“it was not possible to complete a systematic review of the literature within this timescale. However we have found no substantiated concerns of gender abortions occurring in England, Wales and Scotland.”
However, the Department states that it will continue to take the issue of gender selective abortions very seriously list a number of actions it is committed to undertaking including, inter alia: repeating the birth ratio analysis on an annual basis; continuing to review abortions by gender and ethnicity, [full list pages 13 to 14].
The Telegraph ‘sting’
This demonstrates the complex interplay between quasi-law and conventional legislation in a multicultural setting: the ‘sting’ organized by the Daily Telegraph falls within the ambit of the Editors’ Code of Practice of the Press Complaints Commission. Under the Abortion Act 1967, medical practitioners are afforded a significant degree of discretion, although in this case the Crown Prosecution Service, (CPS) considered the BMA guidance on the law in this area to be ‘far from clear. This guidance differs from that of the British Pregnancy Advisory Service. The CPS decision not to prosecute was guided by its own Code of Practice, and took into consideration the on-going investigation and possible sanctions by the General Medical Council, guided by its own Good Medical Practice, through the Medical Practitioner Tribunal Service, which has its own Indicative Sanctions Guidance.
These events also highlight the problems associated with placing a reliance on many of these quasi-law measures, the outcome of which has been a short suspension of one of the doctors for agreeing to falsify the reason for the abortion, not for offering a termination on the basis of the gender of the foetus.
Serious Crime Act 2015
The Department of Health Report observes that a number of factors can influence the sex of the child including maternal and paternal age, coital rates, number of children and sex of previous children. The general consensus is that a male to female birth ratio of around 105 (that is 105 male births per 100 female) is normal; some experts consider that ratios above 107 cannot occur naturally, and the Department used a birth ratio of 107 as the threshold in this assessment. Table 1 shows that for the period 2009 to 2013, there was a total of 3,832,844 births for which the birth ratio was 105.2, i.e. 1,980,366 male births and 1,882,478 female. Although this is lower than the expected upper limit of 107, in view of the large total number of births and the variability in some of the underlying data, this appear to be a relatively insensitive test for assessing whether gender-specific abortions are being carried out.
 Item 8 of the CoP, Hospitals, includes the provision ‘i) Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries’, although does not apply on issues deemed by the CPC to be ‘in the public interest’.
 Crown Prosecution Service. (2013). Statement from Director of Public Prosecutions on abortion related cases. Available: http://blog.cps.gov.uk/2013/10/statement-from-director-of-public-prosecutions-on-abortion-related-cases.html. Last accessed 16th Nov 2013
 British Pregnancy Advisory Service (2013). Britain’s Abortion Law: What it says, and why. Stratford upon Avon: BPAS. 8, 11, 19.