The Abortion Act 1967 and Down Syndrome: Crowter

In R (Crowter & Ors) v Secretary of State for Health and Social Care [2021] EWHC 2536 (Admin), the issue before the Court was the fact that the Abortion Act 1967 differentiates between pregnancies where there is a substantial risk that, if born, a child would be “seriously handicapped” (the terminology used in the Act) and those where it would not. The three claimants – a 25-year-old woman with Down Syndrome who had gained an NVQ qualification level, was employed and had recently married, A, a two-year-old with Down Syndrome who had met all his developmental milestones, and A’s mother [6-8] – challenged the disability ground for abortion in section 1(1)(d) of the Act as contrary to Articles 2 (right to life), 3 (inhuman or degrading treatment) and 8 (private and family life) ECHR.

It was submitted on behalf of the claimants that section 1(1)(d) of the 1967 Act was incompatible with Article 2 because it placed the life of a disabled unborn child in danger in circumstances where, and at a time at which, it would not be permitted in the case of a non-disabled child [51]. As to Article 3, a termination immediately before birth at 36 weeks would cause the foetus intense suffering at a time when he was fully developed and sentient [73]. As to Article 8, it was argued that s 1(1)(d) of the 1967 Act breached Article 8 – and that if it did not do so directly, it fell within the “ambit” of Article 8 so as to bring into play the equality provision in Article 14.

The Divisional Court rejected the claim. As to the argument on Article 2, the Court referred to Lord Mance’s judgment in Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27, in which he observed (at [119]) that

“On the present appeal, there is in law no question of a balance being struck between the interests of two different living persons. The unborn foetus is not in law a person, although its potential must be respected”.

That analysis was inconsistent with the submission that a foetus was the bearer of Article 2 rights [68]. Similar considerations applied to the submissions on Article 3, because “there is no positive decision of the European Court of Human Rights (or even the former Commission) which decides that a foetus is protected by the Convention rights, including in particular Article 3” [80]. As to Article 8:

“it is accepted that the decision to become a parent or not to become a parent and to continue with a pregnancy or not falls within the scope of Article 8. But … that is to do with the rights of the pregnant woman, and says nothing about the rights of others” [100],

The argument in relation to Article 14 was also rejected [147]. Claim dismissed [156].

Cite this article as: Frank Cranmer, "The Abortion Act 1967 and Down Syndrome: Crowter" in Law & Religion UK, 3 December 2021, https://lawandreligionuk.com/2021/12/03/the-abortion-act-1967-and-down-syndrome-crowter/

 

1 thought on “The Abortion Act 1967 and Down Syndrome: Crowter

  1. Surely there could be no clearer evidence than the real evidence of the three claimants to demonstrate that those with Down Syndrome, though handicapped, are not “seriously handicapped”?

Leave a Reply

Your email address will not be published.