Abortion, ethics and
the law: issues for the new millennium
In this briefing, produced by *Pro-Choice Forum, you will
find key points and summaries of papers about abortion and
the law given at a recent conference hosted by University
of Westminster School of Law. At the conference, the papers
provoked a wide ranging and useful discussion about the
reality of abortion as an accepted part of life in Britain
today; about the disparity between current thinking in law
and medical ethics regarding the primacy of patient autonomy
and British abortion law; and about whether the Human Rights
Act is likely to lead to cases which in any way undermine
the legal provision of abortion in Britain. Given the interest
the papers generated at the conference, it seemed important
to make them available to a wider audience, particularly
those with an interest in ethics and abortion law - hence
this briefing. The full versions of the papers can be found
at the addresses given at the end of each of the following
If you would like to receive
a paper version of the following text, please send a self
addressed envelope to:
7 Dinerman Court,
38-42 Boundary Road,
London NW8 OHP.
Thanks to Simon Population
Trust for providing financial support for this publication.
*Pro-Choice Forum is a research
and education group, established in 1997. Its aims are:
(i) to increase knowledge about the causes of unwanted pregnancy
(ii) to increase knowledge about the social, legal and ethical
issues surrounding abortion, and the management of unwanted
In order the achieve these
aims, Pro-Choice Forum organises lectures, debates and conferences;
publishes pamphlets and leaflets; and publicises research
about abortion and related issues on this site and elsewhere.
On the place of abortion
in British society today....
- If society expects individuals
to plan their families, abortion is an essential back
up to contraception. Abortion is not in itself a problem.
Rather it can be a solution to the problem of unwanted
- Policy makers should
not use the abortion rate as an indicator of a problem.
A relatively high abortion rate may show that women wish
to combine a sex life with ambition. It may indicate that
women are unprepared to accept an unplanned pregnancy
and shape their lives around it.
On British abortion law....
- The Abortion Act 1967
makes a woman's access to abortion dependent upon her
establishing, to the satisfaction of two doctors, that
an abortion is necessary to protect her health, or that
of her children, or to prevent the birth of a child who
would be born seriously handicapped.
- The wording of the statute
reflects the framing of abortion as a public health issue,
which may have been a sensible political strategy in 1967,
but which may now be inconsistent with the overriding
priority given in other areas of medical law to a patient's
right to make their own decisions according to their own
values and beliefs.
On abortion and the Human Rights Act....
- British law does not
recognise fetuses as legal persons entitled to the protection
of the European Convention on Human Rights. But some lawyers
are keen to introduce fetal rights, using the new Human
Rights Act 1998. Will they succeed?
- The arguments in favour
of 'fetal rights' are not compelling. However, in a particularly
emotive case, a judge may rule that fetuses are covered
by the new Act. If this happens, it could have serious
implications for women's autonomy and UK abortion law.
Abortion is not a problem
Ann Furedi, Director of Communications, British Pregnancy
It is time to face up to
the fact that abortion has a place in fertility regulation.
It is a method of family planning - if by that we mean that
abortion is used by women to control whether or when they
have children. Women may not intend to rely on abortion
as a means of family planning, but in reality that is often
the way it works out.
Women today expect
to have control over their fertility and are expected
to control their fertility. The need for 'family planning'
is almost universally accepted even among the most conservative
But the evidence shows that
women cannot manage their fertility by means of contraception
alone. Contraception fails, and couples sometimes fail to
use it effectively. A recent survey of more than 2,000 women
requesting abortion at clinics run by BPAS, Britain's largest
abortion provider, found that almost 60 per cent claimed
to have been using contraception at the time they became
pregnant, nearly 20 per cent said they were on the pill.
Other studies have shown similar results.
The number of women who
claim they experienced a split or slipped condom, or missed
just a couple of pills, is undoubtedly inflated. Unprotected
sex is stigmatised and some women requesting abortion may
falsely claim to have used contraception believing that
they will be treated more sympathetically if the pregnancy
is 'not their fault'. But even so, it is clear that contraceptives
let couples down. All methods have a recognised failure
rate. Whether the pregnancy occurred because the condom
split or because the couple failed to get it out of the
packet is not very important. The simple truth is that the
tens of thousands of women who seek abortion each year are
not ignorant of contraception - most have tried to use it
and, indeed, may have used it and become pregnant regardless
Women's need for abortion is implicitly understood by policy
makers and legislators - this is why abortion is provided
at NHS hospitals throughout the country.
Attitudes to abortion exist
as part of a web of other ideas that interface with social
values on other issues such as poverty, perceptions of women's
role in society, the value of parenting and even global
issues such as the environment and 'over-population'. Most
democratic societies hold that women should expect, and
be expected, to make a broader contribution to society than
bearing and caring for the next generation. Motherhood is
still regarded as 'natural' at some time in a woman's life,
but most people assume that motherhood will be an interval
sandwiched on both sides by an income-generating 'job' if
not a 'career'. Girls from appropriate (middle class) backgrounds
are expected to progress to a university education.
Society currently places
a high premium on 'planned parenthood'. The belief
prevails that children should be wanted, that parents should
be able to support them, and be willing to make sacrifices
for them. Growing social concern about 'unfit' or 'problem'
parents does not easily co-exist with a disposition to force
people to bear children they do not want and by their own
admission cannot care for. This ethos creates a framework
whereby abortion can in some circumstances be perceived
as a 'responsible choice' even by social conservatives who
would disapprove of abortion in principle.
In almost all developed
countries, the laws that regulate abortion allow women to
end unwanted pregnancies in the early weeks, usually restricting
the criteria after ten or twelve weeks. In the USA, a woman's
right to decide whether to terminate her pregnancy in the
first trimester is deemed to be a part of her constitutional
right to privacy. Countries as diverse as Turkey, France,
Norway and Austria allow abortion on request in early pregnancy.
Although the UK law does not allow abortion on request at
any time in pregnancy it is considered acceptable and appropriate
for doctor's to refer women on the grounds that it would
be damaging to their mental health if they were denied abortion.
Surveys of public opinion
suggest widespread tolerance of legal abortion. A national
opinion poll carried out three years ago by the UK's main
polling agency MORI found that 64 per cent of those asked
agreed that: abortion should be legally available to all
who want it. 25 per cent disagreed. The remainder neither
agreed nor disagreed or said they did not know. The proportion
of those who agreed had increased by 10 per cent since 1980.
Birth Control Trust, for whom the poll was commissioned,
suggested that this demonstrated a growing acceptance of
legal abortion and a widespread belief that belief that
the law should not be used to prevent women ending pregnancies.
Women today are at particular
risk of unplanned pregnancy. Sex is an accepted part of
an adult relationship for which we do not expect to suffer
unwanted consequences. Pregnancy is seen by an increasing
number of women as an unwanted consequence that they are
not prepared to adapt to. The fact that more women are delaying
starting a family until they are in their thirties, that
many are deciding to opt out of parenthood altogether, suggests
increased numbers of sexually active women who do not want
a child. Is it any wonder then that the number of abortions
A relatively high abortion
rate is not necessarily a sign of the failure of sex education
and family planning programmes: it may be a symptom of a
society where women wish to combine a sex life with ambition.
It may be that an increasing number of women are unprepared
to accept an unplanned pregnancy and shape their lives around
it. Policy makers should stop using the abortion rate as
an indicator of a problem. Of course it is preferable for
unwanted pregnancies to be prevented rather than ended.
Abortion is safe, but contraception is safer and more convenient.
But it may be time to understand that, for women, abortion
is an essential method of family planning and accept it
For further comment on this
issue by Ann Furedi, go to
Ethics and British Abortion Law
Emily Jackson, Lecturer in Law, London School of Economics
Given how common abortion
is (it is estimated that at some point in their lives, one
quarter of British women will have one), it was perhaps
predictable that outright opposition to all abortion would
become a minority view. Most condemnation of abortion now
crystallises around certain sorts of abortion, which are
regarded as more problematic than normal. For example, as
the Human Genome Project is completed, the moral legitimacy
of abortion following the prenatal detection of increasing
numbers of genetic markers is the subject of fierce debate.
British law to some extent
encourages the idea that some abortions are morally worse
than others. Under the Abortion Act 1967, two doctors must
be satisfied that an abortion is necessary in order to protect
the health of a pregnant woman, or that of her existing
family, or to prevent the birth of a child who would be
born seriously handicapped. Access to abortion is then contingent
upon two doctors' approval of the woman's reasons for wanting
to end her pregnancy.
This approach to abortion
is largely the result of the context in which the 1967 Act
was passed, where the chief strategy of the reformers was
to argue that abortion needed to be available where the
birth of a child would jeopardise the health and well-being
of a woman and her family. The resulting law converted this
argument in favour of legalisation into a condition, so
that a woman is not entitled to terminate a pregnancy unless
she can establish that her health or that of her children
would be injured. I intend to consider whether a law which
depends on two doctors judging a woman's reasons for wanting
to terminate a pregnancy may be inconsistent with the priority
given in other areas of the law to the common law principle
In recent years, the primacy
of patient autonomy has become an over-arching theme in
medical law, and in the context of the refusal of medical
treatment, it is now absolutely uncontroversial that a medical
practitioner has to comply with the instructions given by
a competent adult, whether those instructions are rational
or irrational. And one essential feature of this respect
for the patient's right of self-determination is that it
extends to decisions of dubious moral quality. For example,
in St. George's Healthcare N.H.S. Trust v S 
3 W.L.R. 936, the Court of Appeal found that a competent
adult woman was entitled to refuse a caesarean section even
if her decision would lead to the death of a 36 week old
fetus. Judge L.J. said: 'The autonomy of each individual
requires continuing protection, particularly when the motive
for interfering is as readily understandable, and indeed
to many would appear commendable'. And he was clear that
'Pregnancy does not diminish a woman's entitlement to decide
whether or not to undergo medical treatment. Her right is
not reduced or diminished merely because her decision to
exercise her right may appear morally repugnant.'
Similarly a statement from
a 1999 Department of Health Circular is unequivocal that
a competent woman is entitled to make a decision which will
lead to the death or serious handicap of a fetus, even if
that choice 'is so outrageous in its defiance of logic or
accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have
arrived at it'.
These statements seem to
confirm that a robust concept of patient autonomy applies
to pregnant women. They indicate that the death of a fetus
is less important than protecting patient autonomy. If the
law has established that a woman's decision should be respected,
even if it will cause the death of a 36 week old fetus,
is there some inconsistency with the Abortion Act's requirement
that a woman's reasons for terminating a pregnancy of much
shorter gestation must be judged acceptable by two medical
In the longer version of
this paper, I consider several possible objections to this
analogy between abortion law and the common law principle
of autonomy. My argument is that forcing a woman to carry,
deliver, and bear responsibility for a child she does not
want could perhaps be characterised as a potentially harmful
interference with her interest in making significant choices
about her life according to her own values. The fact that
compelling a woman to carry an unwanted pregnancy to term
is not regarded as a derogation from her right to make decisions
about her medical treatment may reveal a network of assumptions
about the naturalness of maternity, rather than an objective
assessment of its relative intrusiveness.
Pregnancy, especially in
its later stages, is a uniquely invasive experience, and
for many women labour is exceptionally gruelling and painful.
Unless the baby is immediately given up for adoption, carrying
a pregnancy to term will also result in the extremely onerous
and long-lasting obligations of parenthood. So insofar as
a non-consensual operation is illegitimate because it interferes
with a person's right to make significant decisions about
their life, requiring a woman to carry an unwanted pregnancy
to term could be similarly disruptive.
For further comment on this
issue by Emily Jackson, go to
The Human Rights Act
1998 and 'fetal rights' - a new threat to women's autonomy?
Barbara Hewson, Barrister, Littman Chambers, 12 Gray's Inn
I recently attended a training
seminar on medical law and the Human Rights Act, promoted
by JUSTICE, the all-party law reform group, and a set of
barristers' chambers well-known for clinical negligence
work. There was quite a lengthy discussion about fetal rights
and how the Act could be deployed to develop the idea of
fetal rights. One presenter predicted that there would be
an application for a court ordered caesarean section, before
the end of 2000, using the argument that the fetus is protected
by the Human Rights Act.
It would be more difficult
for 'fetal rights' proponents to attack the Abortion Act
directly, because under the new Human Rights Act, judges
do not have power to strike down existing legislation. This
is why moves to promote rights for the fetus will probably
not focus directly on abortion, but on women who are pregnant
and near term.
What provisions of the European
Convention on Human Rights, which the Act introduces into
law, might be involved? The obvious one is Article 2, the
right to life. Another is Article 8, the right to respect
for private life.
Article 2 as drafted does
not appear to include fetal life. It says that the state
can only take away life in certain clearly defined circumstances,
including self-defence, conviction for an offence for which
the lawful penalty is death, or if the police shoot someone
whom they are trying to arrest. The Commission on Human
Rights in Strasbourg has suggested that if fetuses have
a right to life, it could not be an absolute right, because
that would make access to abortion impossible.
Article 8 guarantees the
right to respect for a person's family and private life.
The state can infringe this right, if it can show a compelling
state interest. Restrictions must be necessary in a democratic
society, in the interests of (e.g.) public safety, prevention
of crime, protection of health and morals, protection of
the rights and freedoms of others. But is the fetus an 'other'?
If it were, it would be difficult to justify abortion under
Article 8; we do not kill 'others' to maintain a person's
right to privacy.
Emotive cases may be used
to shock the courts into ruling that a late term or viable
fetus is a person, or has legal standing. Circular reasoning
may be employed e.g. Parliament must have intended the Act
to protect fetuses because the State must have the power
to protect children. An example is a woman in labour refusing
a caesarean; or a pregnant drug addict who will not give
up drugs. If such a ruling occurs, then fetal rights supporters
could work backwards to earlier points in gestation. A potential
problem is that, if a judge rules that a fetus is a 'person',
it would be virtually impossible to justify any abortion.
And (as in South Carolina), pregnant women could be prosecuted
under child abuse laws for smoking or drinking.
Those who favour recognition
of fetal rights use a 'contractual' argument, that when
a woman chooses to proceed with a pregnancy, she agrees
to give up her autonomy, in the interests of her fetus.
This is bogus. What contract?. How does the fact that a
woman carries a pregnancy to term mean that she waives her
fundamental rights? This argument is founded on an anachronistic
view of women. Another argument is emotional, that 'someone
must speak for those who cannot speak for themselves'. The
claim is also made that even if a pregnant woman is locked
up, or forced to have a caesarean section for the sake of
her fetus, this does not infringe her autonomy. That is
More importantly, even if
fetuses were persons, does that mean that a woman must forfeit
her freedom for the fetus' health needs? This is an argument
that lawyers favouring fetal rights typically refuse to
address. In the St George's case in 1998 the Court of Appeal
decided that if pregnant women could be locked up and operated
on, for the sake of the fetus, then logically adults could
be forcibly operated on to save the child of a stranger.
However, bitter experience tells us that once 'helping a
child' becomes the determining principle, emotion takes
over and (as with recent hysteria over paedophiles) there
is no limit to the invasions of personal freedom proposed.
For further comment on this
issue by Barbara Hewson, go to www.prochoiceforum.org.uk/al10.php