#1709 - Contraception And Abortion - Medical Law

Abortion

Abortion and the Law

• Criminal offences

  • Offences Against the Person Act 1861 s.58 –

    • Offence to procure a miscarriage (either your own or someone else’s)

  • OAPA 1861 s.59 –

    • Offence to supply or procure a poisonous or noxious thing or instrument

  • Infant Life Preservation Act 1929 – s.1

    • (1)Offence to intend to destroy the life of a child capable of being born alive

      • No person shall be found guilty of this offence unless it is proved that the Act was not gone in good faith for the purpose of preserving the life of the mother

    • (2) Evidence that a woman had been pregnant for a 28 weeks or more shall be prima facie proof that she was at the time pregnant of a child capable of being born alive

• Abortion Act 1967 works as defence

  • Four key requirements

    • The need for a registered medical practitioner to do the procedure (or under the supervision thereof)

    • NHS hospital or approved place

    • Two medical practitioners need to agree on one of the statutory grounds in good faith

      • Probably don’t need to agree on the same ground, just as long as agree within one of them

      • Doctors need only believe the ground in good faith, need not be right

        • Paton v BPAS [1978]:

          • George Baker P

            • It would be a bold and brave judge to interfere with the discretion of doctors acting under the [AA 1967]

            • But I think it would be really be a foolish judge who would try such a thing

              • Unless there is clear bad faith.

    • Notification to Sec State that an abortion has taken place.

  • Grounds: (s.1(1) of the AA, as amended by the HFEA 1990)

    • (a) that the pregnancy has not exceeded its twenty fourth week

      • And that the continuation 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

      • 24 weeks?

        • From when? From the moment of conception? From discovery? From last period?

          • None of these approaches are satisfactory

            • The latter is the easiest medically to date, but the others are very uncertain

            • However, 24 weeks was what Parliament though was the time the child could be born alive

              • Which would point to conception

      • Meaning of mental health?

        • Is this being emotionally upset? Or pregnancy would lead to mental illness?

          • Certainly not interpreted like this.

          • Fairly easy if it’s just emotional distress for doctor to go-to this.

    • (b) that the termination is necessary to prevent grave permanent injury to the physical and mental health of the pregnant woman

      • Necessary?

        • Needs to be necessary and permanent injury to the mental health.

          • Suggests more than emotional upset.

          • Used when threat to life – not very common.

    • (c) continuance of pregnancy would lead to greater risk to life than not

    • (d) that there is a substantial risk that if the child were born it would suffer from physical or mental abnormalities so as to be seriously handicapped

      • Lack of time limit

        • There is no time limit on this one – potentially could go beyond 24 weeks

      • Meaning of substantial risk?

        • Related to severity of condition?

          • Douglas: Substantial risk should include consideration being given to the severity of the disability being faced

        • Royal College of Gynaecologists: Related to chance of condition, no matter how severe?

        • How much is substantial?

          • 5% risk of Downs Syndrome?

            • Yes if more than negligible

            • Or based on great likelihood?

          • Cleft Palate?

            • This is remedial and has little long term impact on health of child

            • Has been accepted by some doctors that it is.

  • Emergencies

    • S.1(4)

      • No need for two practitioners, shall not apply to the termination of a pregnancy if one agrees

        • b/c serious injury etc.

• S.4 Conscientious objection

  • (1) subject to subsection (2), no person shall be under any duty... to participate in any treatment authorised by this Act

    • Which he has a conscientious objection

    • Provided that in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it

  • (2) nothing in (1) shall effect the duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman

  • Janaway v Salford

    • Secretary required to type a letter referring on an abortion is not within subsection (1)

Does the law give women a right to abortion?

• No

  • Woman’s wishes are absent from all of the grounds – very much doctor assessment.

    • Technically do not need W’s consent at all, whether competent or not!

    • Opinion of doctors justify the grounds, so long as they are in good faith – which is very difficult to prove otherwise

      • Paton v BPAS

        • George Baker P

          • Not only would it be a bold and brave judge... but I think it would really be a foolish judge who said that the grounds had not been made out

            • Unless there is clear bad faith and an obvious attempt to perpetrate a criminal offence

  • Must take place on NHS premises

    • Drug RU-486 operates to shed the uterus lining to prevent implantation, but can also dislodge implanted egg

      • After Smeaton is therefore an abortion, so needs to comply with AA.

      • W therefore has to come into hospital to take the drug, can only leave two hours later (although drug may take 48 hours to operate)

    • If woman can go home before drug takes effect, is that not an abortion on licensed premises?

      • If treatment is just the taking of the pill, that’s fine

      • BUT Kennedy and Grubb: Treatment includes the whole process, therefore some not at a licensed place

        • Unless SI amends it to say that all places are registered places!

        • Herring: this would undermine the AA, which seeks to have abortions take place in safe environment.

  • Sec of State Involvement

    • Must be informed of all abortions that take place via statutory obligation

      • Seems to suggest that an issue the state wants to monitor closely

    • All abortions over 20 week per s.1(3) must be given approval by Sec State

    • Private clinics only allowed if given approval by Sec State, and any abortions after 24 weeks have to take place in NHS hospital

  • No positive right conferred by the Act

• Yes

  • Law is not always applied to the letter

    • Perception that two particularly liberal doctors get together, they will just find a ground and carry out the abortion

      • Very difficult to prove bad faith

    • 97% of abortions carried out under grounds s.1(1)(a) – risk to physical or mental health

      • Sheldon: some doctors say that pregnancy has more risks than non-pregnancy, so it’s always less risky to have an abortion than continue with pregnancy.

  • Conscientious objectors can exclude themselves from performing/dealing with abortions under s.1(4)

    • So prima facie every doctor carrying them out has no moral objection to abortion (although this is not to suggest abortionists don’t follow the law)

      • although this may of course mean that for those who can’t pay for an abortion, and happen to be in an area with lots of conscientious objectors may find it more difficult to get an abortion.

    • Enough persistence will get you there though

      • And while BMA supports the rights of doctors to refuse to participate in morally sensitive procedures,

        • This is only “so long as colleagues who do not have a conscientious objection are available to carry out the procedure”

  • No-one apart from doctors can stop W having an abortion

    • Paton v BPAS

      • Held

        • H has no right to be consulted about abortion, let alone veto it.

        • Confirmed in Paton v UK –

          • W’s right to bodily integrity trumped any argument that H might have.

    • C v S –...