Abortion laws in the UK – A Critical Analysis

Abortion is a sensitive and contentious issue that is often intertwined with religious, moral, and political connotations. It is an internationally controversial public health issue because unlicensed medical practitioners often perform abortions under unsafe procedures that can be fatal. Historically, the medical code of ethics is founded upon the foundations laid down in the Hippocratic Oath. Therefore, it is sworn upon that a doctor should “…give no deadly medicine if asked nor suggest such counsel and in like manner I will give to a woman a pessary to produce abortion”.

[1] The controversial issue of abortion has always been the subject to the attention of the media and public at large. Cases of abortion escalated in the United Kingdom since its decriminalisation in the Abortion Act 1967. This Act regulates the laws on abortion in England, Scotland and Wales, with the exception of Northern Ireland. [2] The Act was only amended once that is by virtue of Section 37 of the Human Fertilisation and Embryology Act 1990. The law empowers doctors with the rights and responsibilities to decide on matters pertaining abortion.

This can be seen as an anomaly as the statute was enacted to mitigate problems of illegal abortion, which was prevalent in the UK prior to the Act. It has been argued by Sheldon, drawing from the analysis of Michel Foucault’s analysis, that the Act merely reflects the immense moral turmoil of encouraging female irresponsibility, emotional instability and draws an assumption of a female’s sexual morality. [3] The law does not legalise abortion, rather it has laid down numerous exceptions to the illegality of abortion.

All abortions, besides those in emergency cases require authorisation of two registered medical practitioners. Section 1 of the Abortion Act 1967 laid down the grounds for abortion. The English abortion law permits abortion until the foetus can reasonably considered capable of surviving outside the womb, meaning the pregnancy should exceed 24 week. Hence, where the pregnancy has exceeded this permitted time limit, legal abortion is no longer allowed. Only in exceptional circumstances where there is a risk of permanent or fatal injury to the women or the child born is likely to be severely handicapped[4].

The doctor must decide on a balance of probabilities of whether to perform abortion if the pregnancy is to cause death of the mother or a ‘grave permanent injury’. If death is a likely consequence, if the doctor opines that a likelihood of survival is 51/49. This would suffice. Prior to the Abortion Act 1967, in the ‘Bourne’ Case, the defendant was acquitted for performing an illegal abortion on a rape victim, by which it has since been recognised that a women’s mental state could be considered as well as her physical condition.

[5] Since the Bourne judgment, a concern with a woman’s mental health has become part of English abortion law, although this does not imply that a doctor would now cite Bourne in defense, since the relevant defenses to the crime of abortion are currently to be found in the Abortion Act. The British Pregnancy Advisory Service (BPAS) has weighed the gravity of this matter by listing down the arguments for and against abortion. [6] The utmost argument supporting abortion is based on the legal status of the unborn, which is non-existent.

It was also argued that women should have the right to self-autonomy and the right to follow their own conscience basing on her ability to bear the child. Other arguments raised are that it is for the best interest of the child not to be born, as they are likely to grow up in an unhappy family and the fact that the criminalisation does not preclude mothers from travelling to countries where this is legal. Hence, it was proposed by the BPAS that abortion should be legalised in the light of women being independent individuals who capable of deciding on the self-autonomy.

Further, the BPAS also took the middle path in this issue by proposing that there should be better sex education and greater and free access to abortion by the NHS Trust. The courts are often faced with the question of law as to when a child is capable of being born alive. It has asserted that if there is sufficient evidence adduced that the child would never have been capable of breathing, then it could not have been described as such.

[7] A clearer interpretation was that a child is deemed as a human being if it is capable of breathing through its own lungs and sustaining life, independent of its mother. [8] However, the Rance test is not widely applicable because a child is capable of being born alive and would have never been able to breathe on its own. [9] The refusal of the European Court to extend the sphere of Article 2, the right to life to cover the rights and interests of the unborn has been widely condemned.

[10] It has been acknowledged that there is a possibility that the Convention may make extensions in the near future, such implementations has yet taken place. Conclusion The act of terminating the life of the unborn can never be justified. However, it has been viewed that abortion should be allowed in extenuating circumstances and as long it is carried out in a medically acceptable manner. This includes situations where a woman was impregnated as a result of rape.

Furthermore, a situation where the mother’s life is at stake as a result of complications arising from the pregnancy has been considered. As famously noted by William Penn, “a good end cannot sanctify evil means” enforcing the fact that even in the face of adversity, the life of the unborn must never be forsaken. However, perhaps the only manner in which abortion could be justified is by way of indirect abortion. This when the mother has to inevitably endure medical treatment, which is life threatening to the foetus.