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Termination of Pregnancy

Handout 3: Outline of Legal Positions in England and Wales

(From Hope, T. and Savulsecu, J. Medical Ethics and Law: the Core Curriculum.)

Abortion Law

The current law on abortion is best understood in its historical context.

Before 1861 the law was governed mainly by common law. The principal points were:

1. Abortion, whether carried out by the mother, a doctor, or another, was generally a (serious) criminal act.

2. Carrying out an abortion for the purpose of saving the mother's life, may have been lawful, particularly if the mother's life were in immediate danger. It remained unclear, until 1967, the extent to which a doctor could carry out an abortion lawfully for the sake of the health of the mother.

3. The status of the fetus changed at the "quickening". The quickening was the point at which the mother first noticed fetal movements. It generally occurs in the second trimester, around 16-20 weeks in the first pregnancy and often earlier in subsequent pregnancies. The significance of the quickening derives from Aristotle as the point at which the human life began - when the fetus became animated. The word "quick" means roughly "alive" as in the phrase: "the quick and the dead."

4. An abortion carried out after the "quickening" generally carried the death penalty. An abortion carried out before quickening was a criminal act but carried a lesser sentence.

1861: The Offences Against the Person Act

The Offences Against the Person Act 1861 remains the definitive law in England. It gives statutory grounds to the effect that abortion is a crime (except where subsequent legislation provides protection against criminal prosecution). The Act replaced the death penalty for abortion by penal servitude for life. It also abolished any distinction between different fetal ages: the crime, and punishment, were the same whatever the fetal age.

Appendix 1 provides the wording for the two key sections of the Act.

Plugging a legal hole: the Infant Life (Preservation) Act 1929

The 1861 Act gave protection to the fetus up to the point of labour. A person does not have protection of the criminal law against homicide until he is born. Until 1929 there was a legal hole in the protection of the fetus between the start of labour and birth. In other words, until 1929 it may not have been a criminal offence to kill the fetus during labour. The primary aim of the 1929 Act was to give the fetus protection from being killed during the process of its birth. However its provisions went beyond this. The key points of this Act were as follows.

1. "....any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of .... child destruction..." [section 1(1)]

2. It clarified that it was not a crime if the act that caused the death of the child (fetus) was done in good faith "for the purpose only of preserving the life of the mother".

3. It stated that: "...evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive." [section 1 (2)]

It remained uncertain whether an abortion ("procuring a miscarriage") carried out to save the mother's life before the time at which the child was capable of being born alive was lawful, since the 1929 Act does not cover that period.

The Abortion Act (1967)

The Abortion Act was designed to tackle two main issues. The first was increasing concern at the number of "back street abortions" that were being carried out, despite the fact that they were illegal. These were often medically quite unsafe and an increasing number of women were being admitted to hospital with complications resulting from such abortions. The second was the lack of clarity over the question of when a doctor could carry out an abortion for the sake of the mother's health. Doctors, acting in good faith in the interests of their patients, faced the possibility of criminal charges.

The Act provides a doctor ("medical practitioner") who carries out an abortion within the terms of the Act, immunity from prosecution. It does not decriminalise abortion in general. Neither does it provide protection for anyone other than the doctor (and, following the House of Lords ruling in Royal College of Nursing of UK v DHSS [1981] for nurses as well).

The original Act was amended in 1990 (the amendments were part of the Human Fertilisation and Embryology Act. Appendix 2 gives some of the important sections of the amended Act. Five points need emphasis.

1. Prior to 24 weeks a doctor may carry out an abortion, with the woman's consent, on very wide grounds (section 1 (1a)). By far the majority of abortions in England are carried out under this section.

2. After 24 weeks, abortion is only lawful either to prevent considerable risk of considerable harm to the mother, or for the sake of the fetus/child (see Appendix 2 for exact wording). In practice most abortions after 24 weeks are done for the sake of the fetus/child (i.e. under section 1 (1d)).

3. Except in an emergency two doctors are required to be of the opinion that abortion is justified on one of the grounds stated in the Act.

4. Doctors normally date pregnancy from the first day of the woman's last menstrual period. This is not necessarily the day of conception (indeed it is unlikely to be so), and certainly not the day of implantation of the embryo in the uterus. It is generally assumed that when the Act states that "pregnancy has not exceeded its 24th week" it means 24 weeks since the first day of the woman's last period. But this is not clear - particularly if there is evidence that conception had taken place on a day after this.

5. It is not clear what the approach should be to deciding whether an abortion is legal under section 1(1d). The courts have had to decide when it is lawful for doctors to withhold or withdraw life sustaining treatment for neonates on the grounds that the baby is severely handicapped. The courts' approach has been that doctors should act in the baby's best interests and that there are situations when it is better for the baby to be dead than to continue living in the state it is in. However, the report of the Select Committee of the House of Lords (1988) makes it clear that parents’ interests and views are of importance in coming to a decision. It is of course also the case that it would not be lawful to kill a neonate even on the grounds of best interests.

Appendix 3 summarises some further points concerning legal aspects of abortion, and of fetal damage.

Appendix 1: The Offences Against the Person Act (1861)

Two key sections relating to abortion

Section 58 Administering drugs or using instruments to procure abortion

Every woman, being with child, who, with intent to procure her own miscarriage, shall administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.

Section 59 Procuring drugs, etc, to cause abortion

Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude.

Appendix 2: The Abortion Act 1967 as amended in 1990

Section 1

Medical termination of pregnancy

  • (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith:
    • (a) That the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
    • (b) That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
    • (c) That the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
    • (d) That there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
  • (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as mentioned in para (a) or (b) of sub-section (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
  • (3) Except as provided by sub-section (4) of this section, any treatment for the termination of pregnancy must be carried out in a hospital vested in the Secretary of State for the purposes of his functions under the National Health Service Act 1977 or the National Health Service (Scotland) Act 1978 or in a place approved for the purposes of this section by the Secretary of State.
  • (4) Sub-section (3) of this section, and so much of sub-section (1) as relates to the opinion of two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medial practitioner in a case where he is of the opinion, formed in good faith, that the termination is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.

Section 5

Supplementary provisions

  • (1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.

Appendix 3: Some key points in the law on abortion and fetal damage

  • Doctors may refuse to carry out an abortion on grounds of conscientious objection (section 4 of the Abortion Act). The burden of proof lies with the doctor to show that he did have a conscientious objection. Conscientious objection is not a defence however if the abortion “is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman”.
  • The Abortion Act does not give a woman the right to demand an abortion. However a doctor might be found negligent either for not advising a woman (in appropriate circumstances) of the possibility of an abortion, or for not carrying out an abortion, where appropriate, under sections 1 (1b, 1c) (unless due to conscientious objection, see above).
  • The fetus has no right to life. Thus, its status in law is dramatically affected by birth. A fetus cannot be the subject of child protection under the Children Act (chapter 00).
  • A fetus probably has no legal right to be aborted. In other words damages could not be claimed on the grounds that had doctors acted differently (e.g. advised abortion) the child would not have been born; and, that it would have better for the child not to have been born.
  • A woman has a legal right to refuse an abortion.
  • The father of a fetus has no legal right to prevent a woman from having an abortion – and no right to be consulted about it.
  • Inter-uterine contraceptive devices (IUCDs) and “morning after” pills. IUCDs and “morning after” pills cause the loss of the embryo after conception but before implantation in the uterus. Is this contraception or abortion? The Attorney General said, in 1983 (see Brazier 1992 page 293-4) that there is no pregnancy until implantation. This is persuasive but not binding precedence (p000). One judge, agreeing with this, dismissed a prosecution for criminal abortion based on the insertion of an IUCD. There have been no successful prosecutions for illegal abortion for either IUCD or morning after pill.
  • Drugs causing abortion (e.g. Mifepristone). With the advent of effective medication that causes abortion of a post- implantation fetus (embryo) a new problem arises. Taking such a drug does not require surgical intervention and therefore does not require a doctor to administer it. Since the Abortion Act only gives exemption to a doctor (see Appendix 2) what would the legal position be if a doctor prescribed the drug, and the woman then took it herself.

    The 1990 amendment allowed such drugs to be taken in GPs surgeries. However, there remains a problem if the drug is administered by the patient herself. At the moment Mifepristone (also known as RU-486) is restricted to its administration by staff in hospitals.

  • Selective reduction. Selective reduction is the process of killing one embryo or fetus in a multiple pregnancy. If a woman takes a superovulatory drug then many fetuses may develop (as many as eight in rare cases). The same can happen in IVF treatment if several embryos are implanted in order to maximise the chance of one developing. Occasionally more than three fetuses occur naturally. The purpose of selective reduction is to kill one or more of the embryos in order that the chance of survival of the remaining fetus(es) is improved. Until the amendment of the 1967 abortion Act in 1990 (as part of the HFEA - p000) the position of selective reduction was quite unclear. The 1990 amendment clarified that the Abortion Act applied to the killing of any fetus, and therefore brought selective reduction under the provision of the abortion act.
  • The living abortus. In carrying out a late abortion (under the Abortion Act) a doctor would be wise to ensure that the fetus is killed whilst it is still inside the uterus. If the fetus is alive outside the uterus it may acquire the legal protection of any new born baby. Killing it may be murder.

For further information on Termination of Pregnancy:

  • the UK Clinical Ethics Network web site has a detailed discussion around these issues at
    http://www.ethics-network.org.uk/index.htm
  • Hope T, Savulescu J, and Hendrick J - Medical Ethics and Law : the Core Curriculum. Edinburgh: Churchill Livingstone, Elsevier Science, 2003. The main text book used for the University of Oxford Medical Ethics and Law course provides more details for both teachers and their students.
  • Hope T - Medical Ethics; a Very Short Introduction. Oxford: Oxford University Press, 2004.
  • Ashcroft A, Lucassen A, Parker M, Verkerk M, and Widdershoven G - Case Analysis in Clinical Ethics. Cambridge: Cambridge University Press, 2005.

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