Accordingly, despite the changes made to abortion law by the HFEA 1990, there was still scope for improvement to the law because Grear's view resulted from the Jepson case since she felt the exceptions under the AA 1967 were being overused where a foetus of more than 24 weeks gestation was being aborted, under section 1(1)(d) of the AA 1967, when it was diagnosed with a bilateral cleft lip and palate.
However, Ms Jepson (who was born with a facial abnormality that was later surgically resolved) argued this could not amount to a serious handicap and was, therefore, unlawful and was granted judicial review because "the case raises serious issues of law and issues of public importance".
Therefore, the role of medical practitioners under the HFEA 1990 was called into question because it was surmised that they had too much power as any 'reductive medicalisation'21 of abortion "will tend to recast the complex ethical dilemmas involved as questions of medical judgement, first and foremost" because "any reductive medicalisation of the abortion question will result in an incipient denigration of the rights of both women and the unborn".
However, this position was actually further exacerbated by the nature and scope of the HFEA 1990 because, despite the changes that the legislation made, even leading into its actual enactment, several important issues were considered regarding the treatment and investigation of infertility; the diagnosis of inherited disorders; the regulation of fertility; and the investigation of human development and its disorders.
Accordingly, Statutory Instrument 2000 (No.188) was passed to amend section 2 of HFEA 1990 to allow the issue of licences for research involving embryos, whilst also allowing such knowledge to be applied in developing treatments for inherited diseases24. Therefore, the HFEA 1990 was only serving to further strengthen medical practitioners' positions because they not only had the power to take life away but also to grant it25.
Conversely, however, it must also be recognised that the HFEA 1990 largely arose because it was deemed necessary to require a different way of thinking about embryos regarding the 'primitive streak' (i. e. the forerunner of the central nervous system about fourteen days after fertilisation that indicates the establishment of the individuality of the embryo that is not blighted) that led to further questions on the legality of abortions as scientists increasingly discovered further when life actually starts26. These issues were debated in the UK Parliament throughout the legal passage of the HFEA 1990 so that, even though there are many clauses in the Act including changes to the Abortion Act 1967, the great bulk of the debate was actually spent on questions regarding embryos and reflections on 'human experience'.
Moreover, in keeping with this idea of the 'sanctity of life', the HFEA 1990 was designed specifically to ban 'cloning' to take one life for the sake of another, but it was not universally agreed by all Members of Parliament during parliamentary debates that embryos should be `sacrificed'27 which makes the actions leading to the decision in Jepson all the more troubling. Nevertheless, it must also be recognised that, for many, embryos in laboratories represent uncomfortable problems28 because there are fears of scientists becoming 'out of control' in all issues of humanity in life and in death.
Therefore, there is now a thin line between what is good for humanity as we are now left with the dilemma of whether to favour one life or all life (perhaps most aptly illustrated by Re A (Children) (Conjoined Twins: Surgical Separation)29). As a result, the HFEA 1990 has also made it so medical practitioners asked to provide fertility treatment must now "consider the welfare of any child that might be born as a result of the IVF treatment … and any other child who might be affected by the birth" because they must consider (amongst other considerations) "the health of the parents; …
[and] the effect of a new baby on any other children in the family"30. In conclusion, it is clear that, despite the fact that the OAPA 1861 is still in force, the law has moved on slowly over the last century and a half so that there are now legally recognised exceptions, under the AA 1967 and HFEA 1990 in particular, where the law allows the termination of the foetus in the interests of the mother, other children and the child itself when its quality of life is in question.
It is arguable, however, that the 1990 Act has not provided any further practical exceptions in comparison to the 1967 Act. However, new problems have developed as science has advanced astronomically in the same period so that now the power and scope of medical practitioners' ability to create life and take it away is once again being called into question, illustrated by Jepson, so the nature and scope of the law now needs to be re-evaluated.
This is because, whilst we must act in the interests of life, it is becoming increasingly difficult to determine when one life should be placed ahead of another when we are now often 'over-medicalising' difficult situations31 where a more human touch is necessary both in medicine and the law.
Albury. R. M 'Challenges to Commonsense: Debates about the Status of Human Embryos outside Women's Bodies' (1998) Journal of Australian Studies 129 Bleiklie. I, Goggin. M. L & Rothmayr. C 'Comparative Biomedical Policy: Governing Assisted Reproductive Technologies' Routledge (2003)
Cole. G. F & Frankowski. S 'Abortion & Protection of the Human Foetus' Martinus Nijhoff Publishers (1988) Franklin. S 'Making Representation: the parliamentary Debate on the Human Fertilisation & Embryology Act' in Edwards. J, Franklin. S, Hirsh. E, Price. F & Strathern. M 'Technologies of Procreation: Kinship In The Age Of Assisted Conception', Manchester (1993) Grear. A 'The curate, a cleft palate and ideological closure in the Abortion Act 1967 – time to reconsider the relationship between doctors and the abortion decision' (2004) 4 Web JCLI