The decision of the Crown Prosecution Service, (CPS), not to prosecute two doctors who were caught in a newspaper “sting” which showed them willing to undertake a gender-specific abortion, has rekindled media interest in the issue, here, and was raised at yesterday’s Prime Minister’s Questions . On 5 September the CPS issued a statement explaining its reasoning, which comments that the Health Secretary has written to the Attorney General asking for clarification. The statement is therefore presented under the title “Current statement explaining the decision-making”, with the caveat “[t]his will be expanded upon in due course”.
As it stands, it is not a model of logic or clarity. It does, however make the following points:
- it would not be in the public interest to prosecute two doctors in relation to alleged attempts to commit abortions on the grounds of foetal gender. The CPS has previously advised police that there is insufficient evidence to prosecute four medical professionals in relation to this matter.
- The undercover operation involved the pregnant woman presenting herself as seeking an abortion on the grounds that she did not want to give birth to a girl. The CPS was satisfied there was no intention to proceed.
- It further stated: “The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender.
- While the abortions did not take place, attempting to commit a criminal offence – i.e doing something that goes further than just preparing to commit it – is also a crime in its own right under the Criminal Attempts Act 1981.
- Although the case is not straightforward, on balance there is enough evidence to justify bringing proceedings for an attempt. Accordingly, we have considered whether a prosecution is required in the public interest.
- On considering the public interest factors, as set out in the Code for Crown prosecutors, one highly relevant factor in this regard is that the responsible professional body, in this case the General Medical Council, is already involved and has the power to remove doctors from the medical register … [the CPS has] concluded that these specific cases would be better dealt with by the GMC rather than by prosecution.
- [the CPS] must take into account the fact that doctors are required to interpret the law and apply it to range of sensitive and difficult circumstances which are not set out in the legislation. The evidence in this case was finely balanced and the law gives quite a wide discretion to doctors to determine when a risk to the health and wellbeing of a pregnant woman exists.”
The GMC issued its own statement on 5 September, pointedly entitled “GMC statement on abortion cases and CPS decision to not prosecute doctors”, in which Niall Dickson, its Chief Executive, said:
“We have asked the CPS to send us the evidence they have gathered in these cases. We had put these cases on hold pending the outcome of the criminal investigation – these will resume now that the CPS have decided to take no further action.
“These are serious allegations, which is why both of the doctors concerned have had restrictions placed on their practice while investigations take place. It would not be appropriate to comment on individual cases where nothing has been proved and the investigations are on-going.
“Our role, as laid down by Parliament, is not to punish doctors but to protect the public and so any action we may take against a doctor should not be seen as a substitute for action by other authorities”.
While the CPS, Attorney-General and Health Secretary deliberate on recent events, it is useful to consider the broader issues that have been raised. Firstly, there are no government statistics on the gender of foetuses aborted in the United Kingdom. The issue was raised in Parliament by Fiona Bruce, vice-chair of the All-Parliamentary Pro-Life Group: in an early day motion tabled on 16 January 2013, EDM 936, Abortion of Baby Girls; and in a Ten Minute Rule Bill Abortion Statistics Bill 2012-13 which was given its 1st reading on 16 April 2013.
Although the Bill was not given a second reading , the Department of Health (DH) ran a consultation between 15 April and 10 June 2013 aimed at the users of abortion statistics, “ to ensure the abortion statistics reports remain as relevant and as useful to users as possible within resource constraints”. The findings were published in July in the report “Changes to the publication of annual abortion statistics: Response to proposals in the consultation”. This concluded inter alia [page 10]
“We have not been able to implement some of the other suggestions: Information about the sex of the foetus and NHS number are not currently collected on the HSA4 form. To collect such information would require changes to the legislation, in particular the Abortion Regulations 1991, as well as to clinical practice. This is not in the scope of this consultation.
The majority of abortions take place before 10 weeks gestation and it is not currently possible to identify a foetus’s gender at that stage. Identifying the gender of aborted foetuses over 10 weeks’ gestation raises ethical and clinical issues. The Government has no plans to introduce such a practice.“ [Note: current DH statistics  indicate that 77% of abortions carried out in England and Wales in 2012 were at under 10 weeks gestation.]
The DH statement represents the current opinion of the Department on: (a) the policy issues of introducing a requirement to register the gender of an aborted foetus; and (b) the associated practical, ethical and clinical issues. It is also consistent with statements of DH ministers on the gender imbalance (or gender/birth ratios) of recorded births, an indirect metric of gender-specific abortion. In a written answer, the Parliamentary Under-Secretary of State, Department of Health (Earl Howe) stated, [HL Hansard 4 Feb 2013: Col. WA1]
“The academic consensus is that a male to female birth ratio of around 105 (male births per 100 female) is normal and ratios above 108 are unlikely to be possible without intervention. However, some differences also occur as a result of random variation, with differing gender ratios appearing by chance. In the United Kingdom, the birth ratio is 105 and consequently, gender ratios alone are unlikely to provide strong evidence of sex-selective abortions and can only provide contextual information. Other evidence could include different gender ratios by mother’s country of origin though the above caveats would still apply. Birth registration, including mother’s country of birth is a legal requirement and data are compiled by the Office for National Statistics” [emphasis added].
The DH’s investigations into birth ratios have been pursued by Lord Alton of Liverpool in a series of questions to Earl Howe, HL Hansard, 17 December 2012 : col 267W, 8 January 2013 : col 2W, 4 February 2013 : col 1W, 25 Feb 2013 : Column WA183, and 6 Jun 2013 : Column 1273. Although on 25 February Earl Howe reported
“Recent analysis has shown that women from some countries had birth ratios different from that of the United Kingdom as a whole; i.e. 100 female births to 105 male births. There are many possible causes of these ratios. The department is carrying out further analysis of related data.”
the final analysis in June indicated:
“On sex selection, we have no evidence at all of gender-related abortions in the UK. Again, concerns were expressed about this in the press, but analysis has been done that shows that the UK birth ratio is within normal limits”, [col. 1273]
“as I mentioned in my earlier Answer, following extensive investigation and analysis we do not believe that there is any evidence that this is happening in the UK. That is the prime reason why we do not agree with the noble Lord that measures should be put in place to collect data regularly on the sex of the aborted foetus. Were we to do that it would require changes to legislation. It would also require changes to clinical practice, and it has ethical implications”, [col 1274].
For the moment, it seems clear that the DH is unlikely to pursue the matter further, either through the recording of the gender of aborted foetuses, or carrying out additional work on the birth ratio. However, it would not be surprising if there were to be a Freedom of Information request relating to the data and assumptions which lead to the DH’s final analysis of birth ratios. Similarly, the academic work of Dubuc and Coleman is likely to receive further attention. An analysis in the Ministry of Truth blog notes that this is “the sole piece of non-anecdotal evidence for the existence of sex-selective abortions in the UK” but even this “serves more to illustrate the difficulties inherent in locating statistical evidence for the existence of such practices within UK birth statistics than anything else”.
However, those advocating prosecution of the doctors exposed by the Daily Telegraph could be deflecting attention from the bigger picture, as the following exchange in the Lords illustrates, [6 Jun 2013 : Col. 1274]
Lord Mawhinney: Will my noble friend tell us how many prosecutions have taken place in the last year for terminations that fell outside the [1967 Abortion] Act?
Earl Howe: I am not aware of any prosecutions in the last 12 months.
 Other than making a questionable assertion on the illegality of gender-specific abortion, the Prime Minister merely “shared the concern” of the questioner, Nadine Dorries (Mid Bedfordshire) (Con) and indicated that she was “absolutely right to raise this absolutely right to raise this”. He did not agree that “the Abortion Act 1967 is now almost obsolete”.
 The House was prorogued the day before the scheduled second reading.
 Department of Health, “Abortion Statistics, England and Wales: 2012 – Summary information from the abortion notification forms returned to the Chief Medical Officers of England and Wales”, [July 2013].