#17388 - Abortion And Reproductive Medicine Textbook Notes - Medical Law

ABORTION AND REPRODUCTIVE MEDICINE

Herring Chapter 6 – Contraception, Abortion and Pregnancy

1. Introduction

• Few topics arouse greater passion than those surrounding abortion and the regulation of pregnancy

  • The reason is that, for those on either side of the debate, the stakes are extremely high

• On one hand, there are those who regard abortion as murder of the most innocent and vulnerable human beings

  • OTOH, there are those who claim that access to abortion is a crucial part of the battle towards women’s equality and is a fundamental right

  • For them, abortion and fertility decisions should be made by the woman alone, and should not be interfered with by the State

  • Even the questions you start with and the framing of the question can reflect a particular approach

• The law seeks to strike a somewhat uneasy balance between recognising that the foetus has some interests, reinforcing medical control over pregnancy and birth control, and protecting the rights of the pregnant woman

  • Cannot be forgotten that these issues affect millions of women in the UK

  • By the time they are aged 45, a third of all women in the UK will have had an abortion

2. Contraception: its use and function

• Some argue the wide availability of effective contraception has done more to emancipate women than any other social development

  • 2015 UN Report: worldwide 64% of women of reproductive age use contraception

  • 81% in UK

• Most common forms of contraception:

  • Condom

  • IUD

  • Injectable contraceptives

  • Female contraceptive pill

  • Sterilisation

  • Natural methods

• There are serious disadvantages to all these forms of contraception

  • In a survey covering seven countries, a substantial majority of women were dissatisfied with all of the available methods of contraception.

  • Two leading clinical experts working in the UK have stated: '[T]here is a real need for new methods of contraception to be developed that are more effective, easier to use, and safer than existing methods.

• <skimmed disadvantages to contraceptives>

• A major problem with all forms of contraception is reliability

  • One practical consequence of these failure rates is that, in about three -quarters of pregnancies ended by abortion, the woman was using some form of contraception at the time of conception.

  • The National Institute for Health and Clinical Excellence (NICE) has recommended that wider use be made of reversible long-acting contraception

• Despite a widespread perception of sexual promiscuity, a major government survey found that, of those aged 16-69,75 per cent of men had had only one sexual partner in the year prior to the interview and 11 per cent had had no sexual partners.

  • For women, the corresponding statistics were 78 per cent and 13 per cent. It is notable that, of those seeking advice from National Health Service (NHS) contraceptive clinics, 89 per cent were women.

  • Sadly, contraception still seems to be regarded as largely a 'woman's responsibility

3. The availability of contraception

• Lord Denning, in Bravery v Bravery, suggested that a sterilization that is done 'so as to enable a man to have the pleasure of sexual intercourse, without shouldering the public interest attaching to it' was contrary to public policy and degrading to the man.

  • But the judges gradually moved with the times and, in Gillick v West Norfolk and Wisbech Area Health Authority, Lord Scarman held that contraceptive medical treatment is 'recognized as a legitimate and beneficial treatment in cases where it is medically indicated'.

  • Most would agree with the statement by Mumby J in R (Smeaton) v The Secretary of State for Health: It is, as it seems to me, for individual men and woman, acting in what they believe to be good conscience, applying those standards which they think appropriate, and in consultation with appropriate professional (and, if they wish, spiritual) advisers, to decide whether or not to use IUDs, the pill, the mini-pill and the morning-after pill. It is no business of government, judges or the law.

• In fact, the law does regard contraception as part of the state's business.

  • Contraceptives are medical products that must be licensed by the Medicines and Healthcare products Regulatory Agency (MHRA) ofthe European Medicines Agency (EMA) before use

  • Also, the National Health Service Act 2006, Schedule 1, paragraph 8, places a duty upon the Secretary of State, who:

  • must arrange, to such extent as he considers necessary to meet all reasonable requirements, for-

    • (a) the giving of advice on contraception,

    • (b) the medical examination of persons seeking advice on contraception,

    • (c) the treatment of such persons, and

    • (d) the supply of contraceptive substances and appliances.

  • In effect, it means that anyone should be able to access contraception.

• It must not, however, be thought that there are no barriers to accessing contraceptive treatment.

• 1) First, the oral contraceptive pill is available only under prescription or from pharmacists.

  • This is because, for people with certain medical conditions, it can carry serious side effects, and it is thought that the pill should be used only under medical supervision.

  • However, condoms and, significantly, post-coital contraception is available over the counter at a pharmacy.

• 2) The second barrier is cost: although contraception provided under prescription is free, as is contraception (including condoms) provided at family planning clinics, when purchased at a supermarket, a packet of twelve condoms can cost around 10.

  • Although, to many, these barriers appear small, as we shall see they are significant to some young people

• Sterilizations are available on the NHS, although about one third are carried out privately. In 1999, there were 64,422 vasectomies and 41,300 tubal occlusions.

  • The number of sterilizations carried out by the NHS had dramatically fallen by 2010-ll to 12,700 vasectomies for men and 9,700 tubal occlusions for women.

  • This might, in part, be explained by an increase in the use of long-acting contraceptives

• McQueen: women under 30 who have no had children find it very difficult to obtain sterilisations, with MPs saying that they are too young and may regret the decision

  • He notes that men seem to find it easier to access sterilisation, suggesting gendered assumptions about sterilisations are playing a role

• There is also widespread use of ‘emergency contraception', for which, in 2013, there were 332,660 prescriptions.

4. Teenage pregnancy rates

• For every 1000 girls under 15-17 in England and Wales, 21.0 became pregnant in 2015

  • This rate has been falling dramatically in recent years

  • In 2013, it was 24.5

• The estimated number of conceptions to women under 16 was 3,455,, compared with 4648 in 2013

  • Less than one third of young people under the age of 16 have sexual intercourse, but of those that do, many do not use contraception.

  • One study found that 25 per cent of people did not use contraception during their first experience of sexual intercourse.

  • England and Wales has the highest teenage pregnancy and teenage parenthood rates in Europe

• The BMA has acknowledged a “clear need” to improve access to contraception

  • Although contraception is widely available, young people find it difficult to access it

  • The reasons are unclear

  • It may be they are not aware that it is available free of charge or that they are concerned about confidentiality.

  • There may even be practical difficulties getting to see a general practitioner (GP) out of school hours.

5. Abortion and contraception

• At the heart of the legal regulation of fertility is a distinction between abortion and contraception. If a technique is classified as producing an abortion or miscarriage, its regulation is entirely different from where it is classified as a contraceptive.

  • As we shall see later in this chapter, there is a host of detailed regulations governing abortion.

  • The following decision is now the leading authority on the distinction

• R (John Smeaton on behalf of SPUC) v The Secretary of State for Health [2002] 2 FCR 193

  • The Society for the Protection of the Unborn Child (SPUC) sought to challenge the legality of the Prescription Only Medicines (Human Use) Amendment (No. 3) Order 2000,53 which permitted the sale of the morning-after pill without prescription.

  • The Offences Against the Person Act 1861, sections 58 and 59 (creating the offence of procuring a miscarriage), mean that substances that cause miscarriage or abortion may be administered only if two doctors certify that the conditions set out in the 1967 Abortion Act are satisfied .

  • Otherwise, the use of such substances is, in principle, potentially criminal

  • The question was whether the morning after pill was such a substance

• To answer the question, Mum by J explained the 'medical facts':

  • Put very simply, there are two key stages in the biological process following sexual intercourse:

  • (i) The first is fertilisation. This takes place after the man's sperm and the woman's egg have met in the fallopian tube. it is a process which commences hours, or even days, after sexual intercourse. The process itself takes many hours.

  • (ii) The other key stage is implantation. This takes place after the fertilised egg has moved into the womb. it involves a process by which the fertilised egg physically attaches itself to the wall of the womb. The process does not start until, at the earliest, some four days after the commencement of fertilisation. The process of implantation itself takes some days.

• The SPUC argued that contraception -> preventing fertilisation and after fertilisation, any procedure...