Background to Abortion Legislation
Definitions
Abortion is the commonly used term for the termination of an established pregnancy, where “established” is taken to mean that the embryo has implanted in the uterus.
The Abortion Act 1967 came into effect on 27 April, 1968 and has since been amended only once, by Section 37 of the Human Fertilisation and Embryology Act 1990. The Act permits abortion in Great Britain (not including Northern Ireland) by registered practitioners subject to certain conditions.
The Act is unusual in its provision of a ‘conscience clause’ which allows doctors and other health care professionals to override any contractual obligations and opt out of performing abortions
Grounds for abortion
All abortions other than those performed as an emergency require approval by two registered medical practitioners and must be performed in facilities registered for this purpose. The grounds for permitting abortions under Section 1 of the Abortion Act 1967 as amended are:
(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
(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.
Definition of ‘handicap‘
Neither the Act nor the courts have provided legal guidance on the degree of serious handicap which is sufficient to invoke Section 1(d), leaving the interpretation to the opinion formed in good faith of two doctors.
Parliament decided in 1967 that one of the grounds for an abortion is, “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.” Parliament did not define serious handicap in the Act. Indeed, it chose to leave this to the expert judgment of the two doctors involved, who are required to form their own opinion about the seriousness of the handicap the child would suffer if born, taking into account the facts and circumstances of each individual case. The Royal College of Obstetricians and Gynaecologists’ guideline Termination of Pregnancy for fetal abnormality (1996) gives advice to medical practitioners and also states that if an abnormality has been detected and two medical practitioners are of the opinion that there are grounds for a termination under the Abortion Act, then the woman should be advised that she has this option.
There has been one attempt to legally challenge the decision of two doctors who authorised a post-24-week abortion in a case of cleft lip and palate (Jepson v The Chief Constable of West Mercia [2003]). The complainant was successful in achieving a judicial review but the Crown Prosecution Service decided against pursuing the case on the basis that the doctors had acted in good faith and that the risk of serious handicap was substantial.