Law by The Human Fertilisation and Embryology Act 1990

Explain and analyse the changes made to abortion law by The Human Fertilisation and Embryology Act 1990 To begin with, it is important to consider, the law in this area was first considered to have been effectively codified under the Offences Against the Person Act ('OAPA') 1861. This is because the OAPA 1861 provided abortion (regardless of reasons), through the unlawful administration "of any poison or other noxious substance", was considered criminal under section 58 of the Act punishable with a term of imprisonment ranging from three years to life imprisonment.

It is further supplemented by section 59 which prohibited the supply or procurement of poison or instruments to commit a criminal abortion under section 58. However, despite the passing of time and changing attitudes within our society, the OAPA 1861 is still in force and so the statutes that have followed since (including the Human Fertilisation and Embryology Act ('HFEA') 1990), therefore, sought to provide legal exceptions where abortions can be carried out without fear of reprisals and their impact can be judged by these exceptions.

Therefore, with this in mind, the Infant Life (Preservation) Act ('IL(P)A') 1929 looked to supply the first exceptions in this area as it amended the OAPA 1861 so that an abortion would not be considered a crime where it was carried out to prolong the health and life of the mother1.

But, set against this, under section 1 of the IL(P)A 1929, the 'felonious' offence of child destruction was created as it was still illegal to kill a child capable of being born alive at 28 weeks or more with a "wilful act" unless it was done in 'good faith' under section 1(2) in keeping with the aforementioned sections 58 and 59 of the OAPA 1861 because, in such cases, both Acts applied2.

However, problems were also raised regarding whether abortions should be allowed when the threat to the mother's health was mental, discussed in R v Bourne3, where the law was interpreted Justice Macnaghten to incorporate the 1929 Infant Life (Preservation) Act, and he directed the jury that an abortion may be lawful if it was done in good faith to preserve the life of the mother.

He also denied that this provision required the threat of immediate death: if the doctor deliberated that the continuation of the pregnancy would adversely affect the woman's physical or mental capacity, the jury was entitled to take the view that the doctor had operated for the purpose of preserving the life of the mother4. This interpretation was then broadened in R v Newton & Stung5so an abortion was unlawful unless it was made in good faith for the purpose of preserving the life or health of the woman. Health meant both her physical health and mental health6.

The 'Bourne Defence' (or 'defence of necessity') that had evolved in common law meant an abortion could be performed in good faith to safeguard the life and health of the mother despite the fact law having made no such exceptions at the time. The Abortion Act ('AA') 1967 was created because of the continuing fear regarding 'back alley' abortions and the lack of clarity regarding when a medical professional (doctors and nurses - see Royal College of Nursing of UK v DHSS [1981] AC 800) might legally abort a child.

Accordingly, under section 1(1) of the AA 1967, the medical termination of a pregnancy was allowed under the law "when a pregnancy is terminated by a registered medical practitioner if two registered practitioners are of the opinion, formed in good faith... " that certain circumstances apply, notably section 1(1)(d) "that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped", whilst medical practitioners were also given the right to 'conscientiously object'.

However, in spite of the right to 'conscientiously object', the 'good faith' aspect of the AA 1967 was examined in R v Smith7 where the abortee testified the defendant had not examined her intentionally, nor asked her any questions as to her medical history and nor was there any evidence the defendant had arranged for her to see a second doctor8.

Therefore, on this basis (and supported by the amendments in the HFEA 1990 at Appendix 2) an abortion will be approved so long as a medical practitioner acts in accordance with section 5(2) of the AA 1967 that, under section 1(1)(d)), (a) the prolongation of the pregnancy would involve risk to the woman's life; (b) the cessation is important to prevent permanent physical or mental injury to the pregnant woman; (c) the prolongation of the pregnancy would involve risk of physical or mental injury to the pregnant woman; (d) the prolongation of the pregnancy would involve risk of physical or mental injury to health of any existing children; (e) there is a substantial risk the child born would be physically or mentally handicapped; (f) to save the life of the pregnant woman; or (g) to prevent grave permanent injury to the physical or mental health of the pregnant woman.

Nevertheless, the exceptions under the AA 1967 were then amended by section 37(1) of the HFEA 1990 (effected by Statutory Instrument 1991 (No. 480)) so a pregnancy can now be aborted if there is unanimous agreement between two doctors that it (a) puts the physical or mental health of the pregnant woman or any existing children of her family at risk ; (b) poses a permanent mental and physical risk to the woman; (c) puts the life of the mother at risk; and/or (d) there is evidence of a substantial risk of extreme physical or mental handicap to the unborn child. On this basis, the HFEA 1990 contains one clause making some significant changes to our abortion law because there have been many attempts, since the AA 1967 was passed, to tighten up the law.

Therefore, the HFEA 1990 looked to establish a limit of twenty-four weeks, as opposed to twenty-eight weeks, on the length of gestation within which abortions could be carried out under section 1(1)(a) of the 1967 Act9. Moreover, at the same time the HFEA 1990 removed any time limit on abortions carried out so as "to prevent grave permanent injury to the physical or mental health of the pregnant woman", when the continuation of the pregnancy would put the woman's life at risk, or when the child would almost certainly be severely handicapped. Thus no offence under the 1929 Act is committed where there is a termination in accordance with the provisions of the 1967 Act.

Furthermore, in view of the nature and scope of the legislation, the HFEA 1990 also allowed the selective reduction of multiple pregnancies10. It is clear the 1990 amendment was intended to make obtaining an abortion difficult. There are some who argue it is unethical for abortions to be restricted by the 24-week limit because such restrictions undermine the principle of autonomy, which states that no person should be forced to undergo medical procedures against their will. Hence, many argue, "it is problematic that a woman should remain pregnant and undergo childbirth out of an obligation to maintain the life of the foetus. Society does not impose this obligation even in respect of born children.

There is no law that can obligate a person to undergo medical treatment in order to save the life of another person. "11. However, it may be argued that in practice, the amendment has not made as much of an impact as was first envisaged. This is because only a minute proportion of abortions (approximately 1%) take place after the nineteenth week of pregnancy, whereas 88% of abortions take place during the first 12 weeks of pregnancy, and 60% within the first 9 weeks12. Hence the introduction of a 24-week time limit for what is known as the 'social' ground has had minimal practical impact especially since, as Emily Jackson states13, the IL(P)A 1929 had already been interpreted as imposing a 24-week time limit upon abortion.

In addition, it is doctors who have the power to carry out an abortion if they believe the grounds in the Act are satisfied, rather than women having the right to demand one. Therefore, it is highly unlikely an abortion will be conducted for 'social' reasons after the sixteenth week of pregnancy14. It must be recognised that parental rights have also been an issue in cases where potential fathers have attempted to prevent an abortion in Paton v British Pregnancy Advisory Services15 and C v S16. ; where the 'maternal focus' of the abortion decision was strongly endorsed in spite of the man's right to a family life, under Article 8(1) of the European Convention on Human Rights ('ECHR') 1950, but set aside under Article 8(2) prior to the enactment of the HFEA 1990.

But, in C v S, the right to life (under Article 2 of the ECHR) was also questioned by the European Commission and adequate lung development, at around 24 weeks, was crucial to prevent the termination of a pregnancy as a criminal offence as a prelude to the HFEA 1990. Nonetheless, it should be recognised that, in spite of the changes made to the law by the HFEA 1990, a sense of unease continues to prevail. A difficulty is the wide discretion afforded to medical professionals coupled with the ambiguity over the word 'substantial' in s1(1)(d) in that one doctor's view of a substantial risk of serious handicap to an unborn child may be another doctor's trivial risk.

However all the doctor has to do to prove the legality of his decision in authorising the abortion will be to present the other doctor(s) who similarly opined in good faith; hence this is arguably synonymous with 'Bolam'17 test in negligence actions. Ethical issues rather than legal dilemmas are likely to be raised. Jepson v The Chief Constable of West Mercia Police Constabulary18 offered a timely opportunity for quiet introspection into considering the degree to which the law inappropriately elevated the role of medical professionals. This is illustrated by the fact that Grear19 argues: "neither women's rights nor potential foetal rights received adequate consideration in the framing of the Abortion Act 1967 and that the over-medicalisation of the issue, evident then and arguably present in the Jepson case, is now ripe for challenge".