Legal discussion on abortion

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 Abortion has been an enormous topic of debate over the past six centuries and as social morality has evolved, so have the legal attitudes on the issue of abortion. Before the 19th century the society at the time appeared to have had a low tolerance level to allowing abortions to commence and this was illustrated by the attitudes at the time which saw abortion was an act of murder and anyone thought or known to have had an abortion was stigmatised against.

Prior to 1803 abortion was governed only by common law and it was ,legally, a criminal offence if an abortion had taken place, after the foetus had been felt moving (quickening). In 1803 Parliament implemented the legislation, The Abortion Act 1803 and this predominantly made abortion a criminal offence. Thus any person who had undergone an abortion was capable of receiving a maximum sentence of the death penalty. However by 1837 the death penalty was abolished and a new piece of legislation on abortion was introduced.

The legislation passed was; The Offences Against the Person Act 1837 which removed the distinction between an abortion, which had taken place before quickening was felt and an abortion which had occurred after quickening was felt. Even though it changed the situation slightly, it still upheld the fact that abortion was a criminal offence. An amendment was made of the Offences Against the Person Act 1837 in 1861 “which changed the sentencing of someone who had ‘unlawfully’ committed an abortion to life imprisonment and anyone assisting them could get the maximum sentence of 5 years.

”[1] Unfortunately there was an important legal loophole which made it an offence to kill a child in utero and to kill a child who was capable of living without relying on its mother, but it was not an offence to kill a child during child birth. Nonetheless in 1929 the legal limit for an abortion was set at 28 weeks and a new concept was introduced through the Infant Life (Preservation) Act 1929, which closed the legal loophole and made it an offence to “destroy the life of a child capable of being born alive unless done in good faith to preserve the life of another. ”[2]

In the case of R v Bourne[3] an imminent surgeon carried out an abortion on a young lady who had been raped and his reasons had been that he had done so as he believed that there was a risk of injury to the health of the mother, not just physically but also mentally. The courts acquitted him of any wrongdoing as the word 'unlawfully killing' was interpreted to include the prevention of serious injury, physically and mentally. “As a result of the Bourne case, more and more abortions began to be practised in Britain in cases where the woman's physical or mental health was thought to be in danger.

”[4] Society seemed to be more relaxed in their attitudes to abortion but as there was still no legislation which legalised abortion, many of them were done in covert operations. The current climate was such that something drastic had to be done, so the Abortion Act 1967 was introduced by Lord David Steel who stated that “the point of the act was not to encourage abortions but to codify reasons when it would be lawful to have an abortion, as there were too many backstreet abortions occurring which were leading to high mortality rates.

”[5] It is arguable that this significant change in the law reflects the commencing of the society and the legal bodies change in attitude towards the issue of abortion. Instead of condemning a pregnant woman for wanting to have an abortion, more of her needs were taken into account as opposed to previous circumstances where it was the needs of the foetus that was of utmost importance. Abortion was then made legal for the first time in history, but there were certain factors which had to be satisfied and were found under s.

1(1) of the Abortion Act 1967. In this section it stated that ‘the pregnancy must be prior to 24 weeks and if continued would involve greater risk than the pregnancy of injury to mental or physical injury to the pregnant woman or her children. That it is necessary to avoid risks of grave permanent injury to the pregnant woman. That it is necessary to avoid risk of the life of the pregnant woman. That if born the baby would suffer form physical or mental abnormalities. ’

This was amended by virtue of the Human Fertilisation and Embryology Act 1990 which clarified that the four points from the Abortion Act 1967 had to be satisfied before the abortion would be deemed as legal. Although no specific time limit was introduced by the Act, it referred to the Infant Life (Preservation) Act 1929, which said that no unborn child could be killed who was 'capable of being born alive'. This was taken to be 24 weeks gestation for the first criteria, but the act allowed disabled babies to be aborted right up until the child was born.