PCF pro choice forumFor those with a specialist interest in abortion issues
Information Resource Library Opinion, Comment & Reviews Publications Psychological issues
pro choice forum   Search
Abortion and disability
Ante Natal diagnosis
Abortion law
Ireland and abortion
Abortion politics
Women's experiences
Abortion services
Reproductive technologies
Ethical issues
What is PCF?  
Useful linksSubscribe  
Opinion, Comment & Reviews
Abortion law

Abortion for reason of sex: correcting some basic misunderstandings of the law
By Sally Sheldon
1 March 2012

Last week, two undercover reporters from the Telegraph filmed a doctor prepared to offer an abortion to a woman who didn't want to give birth to a female child. In the widespread coverage that followed the 'sting', it has been repeatedly asserted that abortion for reason of sex selection is illegal. This, however, is far from clear.

Some commentators on the Telegraph story (including some who should really know better) appear to confuse abortion with embryo selection. The latter is tightly regulated by the Human Fertilisation and Embryology Act (1990), which was amended in 2008 to prohibit the screening of embryos for the purposes of sex selection prior to implantation, except where necessary to rule out a sex-linked disability. It was presumably this provision that the President of the Royal College of Obstetricians and Gynaecologists had in mind when he said: "sex selection is illegal in this country and abortion based on the baby's gender for non-medical purposes is unlawful. Abortion is already heavily regulated in the UK and sex selection is only allowed in very specific conditions such as in the case of hereditary disease as stated in the HFEA Act 2001[sic]". Yet the 1990 Act is not relevant to sex selective abortion so its mention here is, at best, misleading.

Others have noted that the Abortion Act says nothing about permitting sex selection. This is true. Yet neither does it make specific mention of the availability of an abortion where pregnancy results from rape or incest and most people (including the Parliament that introduced the 1967 Act) would agree that abortion should be legally available in those circumstances. Rather, the Act offers a defence against the charge of 'unlawful procurement of miscarriage' under the Offences Against the Person Act (1861), where two doctors believe, in good faith, that one of a number of broad contraindications to pregnancy is present. One contraindication is that continuing the pregnancy would pose a greater risk to a woman's physical or mental health than would abortion. The doctor who authorises a termination on the basis of rape or incest would rely on the likely harm to the woman's mental health of continuing a pregnancy conceived in this way. The legal question in the case of sex selective abortion - which is far less clear than has been assumed by many commentators - is whether the doctor who performs an abortion on the basis of foetal sex might do likewise.

Imagine a woman with two female children who comes from an ethnic group which places a very high value on sons. She and her husband live with her in-laws, who threaten to throw them out if she gives birth to another daughter. Imagine another whose husband beats her and tells her that she will be subject to far worse violence if she gives birth to a daughter. In each of these situations, we would wish for the woman to be able to leave an abusive situation or, better, to live in a world where such things do not happen. But while we wait for that world, a doctor who authorises a termination in such circumstances could make a strong legal case that she had acted in good faith to preserve the mental health of her patient.

So let's now consider the Telegraph 'sting'. From the limited information which we have from the film clips made available, these extreme scenarios were not involved. In the first clip, a pregnant woman says merely that a female child was "not really appropriate for us right now, we were hoping for a boy." Had the abortions gone ahead, whether these doctors would be liable for prosecution under the Offences Against the Person Act would be likely to turn upon whether they were able to make a convincing argument that they formed opinions in good faith that continuing with a pregnancy would pose a greater risk to the woman's mental health than would a termination.

How do we establish that an opinion is formed in good faith? To the best of my knowledge, there has been just one successful prosecution for 'unlawful procurement of miscarriage' where a doctor had acted with the necessary second signature foreseen with the 1967 Act.{1} The doctor concerned had neither examined internally nor enquired about the medical history of his patient, agreeing nonetheless to perform the operation on the payment of a fee of 150 (a sizable sum in 1974, when the prosecution was brought). It was held that the doctor had no defence under the Abortion Act, as he had allowed himself no opportunity to form a bona fide opinion regarding the balance of risks between termination and continuation of pregnancy. Where a doctor has indeed gathered sufficient information to form a good faith opinion, however, there may appear to be limited scope for her opinion to be second guessed by a court. After all, as Sir George Baker famously noted in a different case: '[n]ot only would it be a bold and brave judge who would seek to interfere with the discretion of doctors acting under the [Abortion] Act, but I think he would really be a foolish judge who would attempt to do any such thing, unless possibly, there is clear bad faith and an obvious attempt to perpetrate a criminal offence.'[2] Prosecutors may also consider, however, whether a charge might lie in perjury (if abortion notification paperwork is believed to have been falsified) and, of course, the doctors might face sanction from the GMC. If paperwork has been falsely completed then that might also be used as evidence of a lack of good faith.

Despite the amount of media time given to this story over the last week, there does not seem to be any evidence to suggest that requests for sex selective abortions are common. The Telegraph journalists report acting on 'specific information' to identify the clinics which ultimately agreed to perform terminations on the basis of foetal sex and it seems that many others refused their request point blank. It would be unfortunate if the recent attention given to the 'sting' operation were allowed to distract from more basic inadequacies of the Act. It would be doubly so if this controversy serves to fuel broader agendas to restrict access to the good, safe and lawful abortion services that remain an essential part of women's ability to control their own fertility.

[1] R v Smith [1974] 1 All ER 376, 1 WLR 1510, 58 Cr App Rep 106.

[2] Paton v BPAS [1978] 2 All ER 987 at 992.

Return to top

Contact us
Information Resource LibraryOpinion, Comment & ReviewsEvents DiaryPsychological Issues
Home © PCF copyright