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Interpreting the Disability Ground of the Abortion Act

Published online by Cambridge University Press:  07 July 2005

Rosamund Scott
Rosamund Scott*
Affiliation:
School of Law and Centre of Medical Law and Ethics, King’s College London
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Extract

“Not only would it be a bold and brave judge … who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence.” So said Sir George Baker P. in Paton v. B.P.A.S. and his view has been repeated at apposite judicial moments in subsequent cases. Recently, however, a legal attempt was indeed made to question the discretion of doctors in Jepson v. The Chief Constable of West Mercia Police Constabulary. Reverend Joanna Jepson asked the West Mercia Police to investigate doctors who had authorised an abortion for bilateral cleft lip and palate at 28 weeks under the disability ground of the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990). Abortion is legal under that section if two doctors have formed an opinion in good faith 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”.

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Articles
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The Cambridge Law Journal , Volume 64 , Issue 2 , 23 July 2005 , pp. 388 - 412
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Copyright © The Cambridge Law Journal and Contributors 2005

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Footnotes

I am very grateful to Bobbie Farsides, Jonathan Glover and Andrew Grubb for discussions relating to this piece and to an anonymous referee for this journal.

References

1 [1979] Q.B. 276, 282.

2 E.g. C v. S [1988] Q.B. 135, 153.

3 [2003] EWHC 3318.

4 The relevant part of s. 1(1) of the Abortion Act 1967 as amended by the HFE Act 1990 reads: “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 … (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”.

5 For accounts of these developments, see e.g. “Cleft Lip Abortion to be Investigated”, The Guardian, 17 April 2004; “Curate Postpones Cleft Palate Late Abortion Action”, The Daily Telegraph, 9 May 2004; and a CPS Press Release of 16 March 2005, entitled “CPS Decides Not to Prosecute Doctors following Complaint by Rev. Joanna Jepson”, which reads, in part: “The Chief Crown Prosecutor for West Mercia CPS, Jim England, said: ‘This complaint has been investigated most thoroughly by the police and the CPS has considered a great deal of evidence before reaching its decision … The issue is whether the two doctors who had authorised the termination were of the opinion, formed in good faith, that there was a substantial risk that if the child were born it would suffer from such physical and mental abnormalities as to be seriously handicapped. I consider that both doctors concluded that there was a substantial risk of abnormalities that would amount to the child being seriously handicapped. The evidence shows that these two doctors did form this opinion and formed it in good faith. In these circumstances I decided there was insufficient evidence for a realistic prospect of conviction and that there should be no charges against either of the doctors.’ Mr. England said the evidence considered by the CPS included medical records; guidance from the Royal College of Obstetricians and Gynaecologists; evidence from a number of professionals involved in the care, counselling and treatment in this case, and interviews of the two doctors. Opinions were also obtained from independent medical experts. ‘We took all these matters into account when reaching our decision that there was no offence.’ ” For Rev. Jepson's reaction, see Dyer, C., “Doctor who Performed Late Abortion Will Not be Prosecuted” (2005) 330 B.M.J. 668Google Scholar.

6 See e.g. Sheldon, S., “Who is the Mother to Make the Judgment?: The Construction of Woman in English Abortion Law”, (1993) 1 Fem. Leg. Stud. 3Google Scholar; Sheldon, S., “The Law of Abortion and the Politics of Medicalisation”, in Bridgman, J. and Millns, S. (eds.), Law and Body Politics: Regulating the Female Body (Aldershot 1995) 105Google Scholar; Jackson, E., “Abortion, Autonomy and Prenatal Diagnosis” (2000) 9(4) Social and Legal Studies 467Google Scholar.

7 R v. Smith (1974) 58 Cr. App. R. 106, in which a doctor was convicted for lack of good faith in authorising an abortion under s. 1(1)(a) of the Act.

8 On medical assessments of disability in this context, see e.g. Shakespeare, T., “‘Losing the Plot?’ Medical and Activist Discourses of Contemporary Genetics and Disability” (1999) 21:5 Sociology of Health and Illness 669, 678Google Scholar.

9 GMC, “Confidentiality: Protecting and Providing Information”, April 2004.

10 RCOG, Termination of Pregnancy for Foetal Abnormality in England, Wales and Scotland (January 1996) para. 3.2.1.

11 Ibid.

12 Ibid.

13 RCOG, Termination of Pregnancy, para. 3.4. The guidelines go on to note the World Health Organisation's definition of health as “… a state of physical, mental and social wellbeing and not merely an absence of disease or infirmity”. The RCOG guidelines continue: “In determining whether there is a risk to mental health in a particular pregnancy the medical practitioners have to identify factors in the woman's life and personality that would threaten her mental health if the pregnancy were to continue: they do not have to certify that she has a mental illness.”

14 Mr. Frank Doran, Hansard, 21 June 1990, vol. 174, col. 1187.

15 Ibid. Miss Ann Widdecombe, col. 1190.

16 Ibid. col. 1201.

17 Available at http://www.publications.doh.gov.uk/public/sb0323.htm.

18 RCOG, Termination of Pregnancy, para. 3.3.1

19 Ibid. Point 3: “Assisted performance. Includes the need for a helping hand (ie: the individual can perform the activity or sustain the behaviour, whether augmented by aids or not, only with some assistance from another person.” Point 4: “Dependent performance. Includes complete dependence on the presence of another person (i.e: the individual can perform the activity or sustain the behaviour, but only when someone is with him most of the time).”

20 Ibid. para. 3.3.

21 Harris, J., “Is There a Coherent Social Conception of Disability?” (2000) 26 J.M.E. 95, 97Google Scholar, citing S. Reindal's interpretation of Harris in the former’s, “Disability, Gene Therapy and Eugenics—a Challenge to John Harris”, (2000) 26 J.M.E. 89.

22 Shakespeare, T., “Choices and Rights: Eugenics, Genetics and Disability Equality”, (1998) 13/5 Disability and Society 665, 665Google Scholar (citing Oliver, M., The Politics of Disablement (Basingstoke 1990)Google Scholar).

23 HFEA and HGC, Outcome of the Public Consultation on Preimplantation Genetic Diagnosis, 18 June 2001, Rec. 15. The concern about discrimination, however, is not analysed either in this document or in the minutes of background meetings prior to the publication of this document.

24 Harris, “Is There a Coherent Social Conception of Disability?”, 95.

25 Shakespeare, “Choices and Rights”, 670.

26 Wertz, D. and Fletcher, J., “A Critique of Some Feminist Challenges to Prenatal Diagnosis”, 175Google Scholar, as cited in Steinbock, B., “Disability, Prenatal Testing and Selective Abortion”, in Parens, E. and Asch, A. (eds.), Prenatal Testing and Disability Rights (Washington, DC 2000) 108, 115Google Scholar.

27 National Tay-Sachs and Allied Diseases Association, Inc. http://www.ntsad.org/pages/t-sachs.htm.

28 Someone with strongly “pro-life” views would disagree.

29 For legal reference to the difficulties of doing so, see McKay v. Essex A.H.A. [1982] Q.B. 1168. For philosophical discussion, see e.g. Feinberg, J., “Wrongful Life and the Counterfactual Element in Harming”, in Feinberg, J., Freedom and Fulfillment: Philosophical Essays (Princeton 1992) 6Google Scholar; Buchanan, A., Brock, D., Daniels, N., Wikler, D., From Chance to Choice: Genetics and Justice (Cambridge 2000) 224Google Scholar ff.

30 For the view that abortion may be morally required, see Glover, J., Causing Death and Saving Lives (Harmondsworth 1977) 146Google Scholar.

31 Alderson, P.,“Prenatal Counselling and Images of Disability”, in Dickenson, D. (ed.), Ethical Issues in Maternal-Foetal Medicine (Cambridge 2002) 195, 201Google Scholar.

32 Ibid. 208.

33 The point has been well made by Edwards, S., in “Prevention of Disability on Grounds of Suffering” (2001) 27 J.M.E. 380Google Scholar.

34 The classic statement of this view is likely found in Robertson, J., “Genetic Selection of Offspring Characteristics” (1996) 76 Boston U. Law Rev. 421, 445Google Scholar.

35 See e.g. Buchanan et al., From Chance to Choice; Robertson, J., Children of Choice: Freedom and the New Reproductive Technologies (Princeton 1994)Google Scholar, and n. 34 above; Steinbock, B., “Disability, Prenatal Testing and Selective Abortion”, 108, 118, 119Google Scholar; J. Botkin, “Line Drawing: Developing Professional Standards for Prenatal Diagnostic Services”, in Parens and Asch (eds.), Prenatal Testing and Disability Rights, 288 and “Foetal Privacy and Confidentiality” (1995) 25(5) Hastings Center Report, 32. From a disability interests’ perspective, see e.g. Shakespeare, “Choices and Rights”, 672.

36 See Botkin, “Line Drawing”, 300-01 for a discussion of the possible kinds of impact on parents.

37 See Williams, C., Alderson, P. and Farsides, B., “ ‘Drawing the Line’ in Prenatal Screening and Testing: Health Practitioners’ Discussions”, (2002) 4(1) Health, Risk and Society 61, 73,Google Scholar for discussion of the value of this. For observations as to the inadequacies of current counselling services, see Shakespeare, “Losing the Plot”, 676. He also observes, at 685, that “[d]ecisions about screening should be based on good information: rather than evaluating screening programmes in terms of those who undergo tests and terminations, programmes should be evaluated in terms of the proportion of people who were empowered to make an informed choice”. For consideration of the information provided in relation to Down's syndrome, see Williams, C., Alderson, P. and Farsides, B., “What Constitutes ‘Balanced Information in the Practitioners’ Portrayals of Down's Syndrome?”, (2002) 18 Midwifery 230Google Scholar. For a detailed discussion of the ways in which information-giving in this context should be developed, see Biesecker, B. Bowles and Hamby, L., “What Difference the Disability Community Arguments Should Make for the Delivery of Prenatal Genetic Information”, in Parens and Asch (eds.), Prenatal Testing and Disability Rights, 340Google Scholar.

38 For one view of such conditions, see A. Asch, “Can Aborting ‘Imperfect’ Children be Immoral?”, from Asch, A., “Real Moral Dilemmas”, Christianity and Crisis, 46(10) 237Google Scholar. Reprinted in Arras, J. and Steinbock, B., Ethical Issues in Modern Medicine, 5th edn. (New York 1998), 384, 386Google Scholar: “Down's syndrome, spina bifida, cystic fibrosis, or muscular dystrophy cause degrees of impairment ranging from mild to severe, the degree indeterminable at the time of prenatal diagnosis ….”

39 The essays resulting from this study are collected in Parens and Asch (eds.), Prenatal Testing and Disability Rights.

40 HGC, Response to the Human Fertilisation and Embryology Authority on the Consultation on Preimplantation Genetic Diagnosis, para.6.

41 Botkin, “Line Drawing”, 300, likewise notes this.

42 On the link between interests and sentience, see Steinbock, B., Life Before Birth (New York: 1992) 24Google Scholar, n. 24. On the notion of interests, see Feinberg, J., Harm to Others (New York 1984) 34Google Scholar: “In general, a person has a stake in X … when he stands to gain or lose depending on the nature or condition of X.”

43 “Webbing (syndactyly) refers to the union of two or more fingers or toes, which usually only involves a skin connection between the two, but may rarely also include fusion of bones in the affected digits. Webbing may extend partially up between the digits, frequently just to the first joint, or may extend the entire length of the digits. Polysyndactyly describes both webbing and the presence of an extra number of fingers or toes.” MedLine Plus Health Information, http://www.nlm.nih.gov/medlineplus/ency/article/003289.htm#Alternative%20Names. Note, however, that a minor anomaly may be an indication of a more serious anomaly as, for instance, Down's syndrome may be a relatively common cause: ibid. A possible concern that “that's not all that's wrong with [the] baby …” was noted by a midwife quoted in C. Williams et al., “ ‘Drawing the Line’ in Prenatal Screening and Testing”, 68.

44 D. Wertz, “Drawing Lines: Notes for Policymakers”, in Parens and Asch (eds.), Prenatal Testing and Disability Rights, 261, 263 ff discusses the difference of views amongst practitioners as to what is serious.

45 [2003] EWHC 3318, para. [12].

46 Williams, G., Textbook of Criminal Law, 1st edn. (London 1978), 256Google Scholar.

47 Sheldon, S. and Wilkinson, S., “Termination of Pregnancy for Reason of Foetal Disability: Are There Grounds for a Special Exception in Law?”, (2001) 9 Med. Law Rev. 85Google Scholar.

48 Morgan, D., “Abortion: the Unexamined Ground” [1990] Crim. L.R. 687 692Google Scholar.

49 By comparison, see in particular the US cases which reject the wrongful birth action, e.g. Schloss v. Miriam Hosp, No. C.A. 98-2076, 1999 WL 41875, at 4 (R.I. Super. Ct. Jan.11, 1999): “These cases are not about birth, or wrongfulness, or negligence, or common law. They are about abortion.” See also Dansby v. Thomas Jefferson University Hospital, 623 A.2d 816 (Pa. Super. 1993) 821, per Wieand J.: “The protection of foetal life has been recognised to be an important state interest. The legislature's expressed concern is to prevent lawsuits leading to eugenic abortions of deformed or unwanted children.”

50 In the United States, the catalyst for these cases was the leading abortion decision in Roe v. Wade (1973) 35 L.Ed.2d 147.

51 See Scott, R., “Prenatal Screening, Autonomy and Reasons: The Relationship between the Law of Abortion and Wrongful Birth”, (2003) 11 Med. L. Rev. 265Google Scholar.

52 [1991] 1 Q.B. 587. The case concerned a failure to diagnose spina bifida and the legality of an abortion under the unamended Abortion Act 1967, in which the foetal disability ground of the Act was subject to time limits.

53 (2000) 56 B.M.L.R. 39, 48, my emphasis. This point is made in conjunction with a discussion of damages. Newman J. also observes: “The existence of the Act is sufficient to introduce into the relationship between the health authority responsible for a pregnancy and the parents, a duty to take reasonable steps to ensure the parents can exercise their choice under the Act”: ibid., 50.

54 Ibid., 40.

55 Ibid., 45. He added: “[T]he quality of her life, her ability, her personality and her potential have incalculable value.” In part, the evidence was: “Where everyday life skills are concerned K is likely to be a very competent young woman with Down's Syndrome, to be capable of living with some degree of independence, and even of being employed at a simple level … She is however very unlikely ever to be able to live entirely independently; to marry, or to bring up children. She will need care and supervision for the rest of her life.” (Ibid., 43).

56 [2002] Q.B. at 266, 383. The reference to “severe learning difficulties” is at 271.

57 Ibid., at 293: “[H]ow disabled does the child have to be for the parents to be able to make a claim? The answer is that the law has for some time distinguished between the ordinary needs of ordinary children and the special needs of a disabled child.” She goes on to refer to statutory criteria. Note also Lord Steyn in MacFarlane v. Tayside Health Board, [2000] 2 A.C. 59, 84, who observed: “[C]ounsel for the Health Board was inclined to concede that in the case of an unwanted child who was born seriously disabled the rule may have to be different. There may be force in this concession but it does not arise in the present appeal and it ought to await decision where the focus is on such cases.”

58 [2000] 2 A.C. 59.

59 (2000) 56 B.M.L.R. 39, 57, my emphasis.

60 [1993] 1 All E.R. 651.

61 [2000] 2 A.C. 59, 114.

62 [2004] 1 A.C. 309.

63 Ibid., 317.

64 (2000) 56 B.M.L.R. 39, 48, my emphasis.

65 Offences Against the Person Act 1861, ss. 58 and 59.

66 See e.g. Shakespeare, “Losing the Plot”.

67 HFEA and HGC, Outcome of the Public Consultation on Preimplantation Genetic Diagnosis, Rec. 11.

68 The recommendation goes on to state that “information provided to those seeking treatment … should include genetic and clinical information about the specific condition; its likely impact on those affected and their families; information about treatment and social support available; and the testimony of families and individuals about the full range of experiences of living with the condition”. Curiously, a somewhat puzzling variation of the point in Rec.14 can be found in the Summary of the responses to the Consultation Document which at one point observes that “80% agreed that the seriousness of a genetic condition should be a matter of clinical judgment based on general guidance”. HFEA/HGC, Analysis of the Responses to the Joint HFEA/AGCT Consultation on PGD, para. 56(iv), my emphases.

69 Smith v. Barking, Havering and Brentwood H.A. (1994) 5 Med. L.R. 285. Fears of fraud are often expressed in conjunction with hostility to the wrongful birth action. See e.g. Wilcoxon, K., “Statutory Remedies For Judicial Torts: The Need for Wrongful Birth Legislation” (2001) 69 U. of Cincinnati Law Rev. 1023, 1040Google Scholar. For a critique of the requirements of causation in the US context and suggestions for reform, see Ryan, S., “Wrongful Birth: False Representations of Women's Reproductive Lives” (1994) 78 Minnesota Law Rev. 857, 907.Google Scholar

70 [2003] EWHC 3318, para. [8].

71 The first part of Article 8 of the Convention provides: “Everyone has the right to respect for his private and family life, his home and his correspondence”. If an applicant can show an interference with this right, then, so far as Strasbourg jurisprudence is concerned, it falls to the state in question to try to justify this under Article 8(2): “There shall be no interference by a public authority with this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of crime and disorder, for the protection of morals, or for the protection of the rights and freedoms of others.”

72 (1981) 3 E.H.R.R. 244.

73 Ibid., para. [59].

74 E.g. by L. Doswald-Beck, “The Meaning of the ‘Right to Respect for Private Life’ ”, (1983) 4 H.R.L.J. 283, 291; Feldman, D., “Privacy-related Rights and their Social Value”, in Birks, P. (ed.) Privacy and Loyalty (Oxford 1997), 15Google Scholar.

75 (1981) 3 E.H.R.R. 244, para. [1].

76 Respectively [1987] 1 All E.R. 1230, in which a man sought to prevent his girlfriend having an abortion; and [1988] 2 All E.R. 193, in which the Court of Appeal decided that it could not make the foetus a ward of court in response to a local authority's concerns about the lifestyle and mental condition of its mother.

77 Section 1(1)(b) would also be implicated.

78 The cases in which a woman refuses a caesarean section are here in point. See e.g. Re M.B. (Adult: Refusal of Medical Treatment) (1997) 8 Med. L.R. 217.

79 (1981) 3 E.H.R.R. 408. Article 2(1) states: “Everyone's right to life shall be protected by law.”

80 Of the decision F.G. Jacobs and R.C.A. White observe: “It is difficult to conclude other than that the Commission was anxious to sidestep a controversial case.” The European Convention on Human Rights, 2nd edn. (Oxford 1996), 43. They also note, however, the lack of consensus amongst Member States of the Council of Europe on the moral and legal issues surrounding abortion.

81 R.H. v. Norway, Appl. no. 17004/90 (1992) extended Paton to abortions for social rather than health reasons.

82 Judgment of 8 July 2004, Appl. no. 53924/00.

83 Ibid., para. [46].

84 Ibid., para. [81].

85 Ibid., para. [80].

86 Ibid. (citing Brüggemann (1981) 3 E.H.R.R. 244).

87 In deciding this point, the Court noted both that the issue had not been decided in most of the Contracting States (including in France, which was currently debating the issue in other contexts) and that “there is no European consensus on the scientific and legal definition of the beginning of life”. Ibid. para. [82].

88 Ibid., para. [84]. The relevant passage is a little unclear.

89 Ibid., para. [85].

90 Ibid., It rejected her argument that Article 2 required a criminal remedy, noting that “if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case”. Ibid. para. [90]. In this case, the applicant could have brought an action in negligence. Ibid. para. [91]. Further, that an administrative law action was statute-barred was considered reasonable, since the right of access to courts is not absolute: ibid., para. [92].

91 Ireland v. United Kingdom (1978) 2 E.H.R.R. 25, para. [167].

92 Glover, V. and Fisk, N.M., “Foetal Pain: Implications for Research and Practice” (1999) 106 British J. of Obstet. and Gyn. 881, 884Google Scholar.

93 Ibid., 885.

94 Ibid. “The physical system for nociception is present and functioning by 26 weeks and it seems likely that the foetus is capable of feeling pain from this stage. The first neurones to link the cortex with the rest of the brain are monoamine pathways, and reach the cortex from about 16 weeks gestation. Their activation could be associated with unpleasant conscious experience, even if not pain. Thalamic fibres first penetrate the subplate zone at about 17 weeks of gestation, and the cortex at 20 weeks. These anatomical and physiological considerations are important, not only because of immediate suffering, but also because of possible long term adverse effects of this early experience.” (Ibid.) One of the questions the authors consider is the experience of the baby during birth, either by natural or surgical means, noting the levels of various hormones present following either means of birth and speculating that in the future analgesia might be administered immediately before or after instrumental deliveries: ibid., 884.

95 In text above at nn. 86 and 88.

96 On abortion and foetal pain, see RCOG, Termination of Pregnancy, para. 5.3.

97 On the lack of a time-limit to s. 1(1)(d) of the Act, see Hansard, 21 June 1990, vol. 174, col. 1198, e.g. per Ms. Richardson: “Some handicaps are so severe that the foetus cannot survive. In a dramatic case, the brain or some other vital organ may be missing.” She also observes: “There is no evidence that doctors have ever performed late abortions for trivial reasons.”

98 RCOG, A Consideration of the Law and Ethics in relation to Late Termination of Pregnancy for Foetal Abnormality, Report of the RCOG Ethics Committee (RCOG Press, March 1998) para. 7.4.

99 For further discussion, see Scott, R., Rights, Duties and the Body: Law and Ethics of the Maternal-Foetal Conflict (Oxford 2002)Google Scholar ch. 1.

100 See references in n. 37 above.

101 Williams et al., “ ‘Drawing the Line’ in Prenatal Screening and Testing”, 66.