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28
1955 SC 200, 1955 SLT 213.
29
However, both Bolam and Hunter were fully supported in the House of Lords in Maynard
v. West Midlands Regional Health Authority [1985] 1 All ER 635.
30
n. 27 above, per McNair J at WLR 586, BMLR 4.
31
ibid., at WLR 587, BMLR 5. In respect of the Scottish decision in Hunter, McNair J
opined that there would be no quarrel as to that expression of opinion not according with
English law – ‘it is just a question of expression’. Hence, there is no doubt that, despite
some minor academic quibbling, the foundation of the law is similar on both sides of the
Border.
32
See Bolitho v. Hackney Health Authority [1998] AC 232, (1998) 39 BMLR 1, HL.
Nature of the troubled pregnancy 11

men’ to a majority of medical men.33 There have, as a result, been a
number of attempts to restrict the test. The most significant of these was
in Bolitho34 where Lord Browne-Wilkinson said:
[I]f in a rare case, it can be demonstrated that the professional opinion is not
capable of withstanding logical analysis, the judge is entitled to hold that the body
of opinion is not reasonable or responsible.35
While many, including the present writer, would suppose that this was
nothing new and was always the case, Bolitho was generally considered to
represent at least a weakening of the Bolam bonds.36 Even so, it seems to
have had very little effect on the lower courts37 – possibly because the
judiciary have retained greater faith in the medical profession than have
the politicians:
[I]t is quite impossible for a court to hold that the views sincerely held by doctors
of such eminence cannot logically be supported at all . . . and the views of the
defendants’ witnesses were views which could be logically expressed and held by
responsible doctors.38
Nevertheless, the courts have, simultaneously, sought to restrict the
Bolam test in a more practical and effective way by limiting its influence
to establishing whether or not a course of medical action is founded on
responsible practice. For example:
[The Bolam test] is a necessary, but not sufficient, condition of treatment in the
patient’s best interests . . . [Medical opinion] is relevant to the question whether

33
Sir John Donaldson MR sought to restrict the interpretation to a body ‘rightly regarded as
responsible’ in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the
Maudsley Hospital [1984] QB 493, [1984] 1 All ER 1018, CA, but got little support
from the rest of the court.
34
n. 32 above. 35 n. 32 above, at AC 243, BMLR 10.
36
For a thorough review of the current situation, see Margaret Brazier and Jose Miola,´
‘Bye-bye Bolam: A medical litigation revolution?’ (2000) 8 Medical Law Review 85–114.
See also John Keown, ‘Reining in the Bolam Test’ (1998) 57 Cambridge Law Journal
248–50.
37
Post-Bolitho cases of relevance have been extensively researched by Alasdair Maclean,
‘Beyond Bolam and Bolitho’ (2002) 5 Medical Law International 205–30. Three ‘transi-
tion’ cases which the interested reader may find useful are: Wisniewski v. Central
Manchester Health Authority [1998] Lloyd’s Rep Med 223; Marriott v. West Midlands
Regional Health Authority [1999] Lloyd’s Rep Med 23; and Penney v. East Kent Health
Authority (2000) 55 BMLR 63, [2000] Lloyd’s Rep Med 41. Unfortunately, none of
these provides a straightforward answer to the status of Bolam at the time.
38
Per Brooke LJ in Wisniewski v. Central Manchester Health Authority, n. 37 above.
Wisniewski is a very useful case for consideration of the test of logic. It is to be noted
that Lord Browne-Wilkinson himself made very similar observations at a general level: ‘I
emphasise that, in my view, it will very seldom be right for a judge to reach the conclusion
that views genuinely held by a competent medical expert are unreasonable’: Bolitho, n. 32
above, at AC 243, BMLR 10.
12 The troubled pregnancy

it is in the patient’s best interests or medically necessary, but it is no more than
that39
and we will note several further examples in the main text.

The patient’s decision
Modern medicine is, however, no longer a matter of selection and impo-
sition of a form of treatment on a receptive patient. Professional practice
has always been governed by ethical principles but, in the past, these have
largely been formulated by the health-caring professions themselves. In
recent times, however, medical ethics have been increasingly subject to
outside control and can now be said to be mainly structured under the
rubric of ‘principlism’,40 of which the concept of the autonomy of the
individual is undoubtedly currently the most demanding – it has, indeed,
become the governing principle of medical law. Choice is an integral part
of autonomy which, in the present context is, essentially, the right to
control what is done to one’s body and the ability to make an autonomous
choice depends upon being adequately informed.
The result has been that the provision of information by way of which
the patient can make an intelligent choice of – and, hence, a valid consent
to – treatment is now established as a major aspect of medical care.
Failure in a duty can, as we have seen, result in actionable negligence
and, as consequence of the amalgam of all these factors, a very distinct
jurisprudence has built up in the last half century under the general
heading of information based negligence. Medical negligence is, there-
fore, no longer a simple matter of sub-standard technique but is also one
of inadequate communication with the patient.
Despite its now major contribution to medical law in general, negligent
communication in the compass of this book is so much a matter of ante-
natal counselling that I propose to delay discussion of the principles until
we get to that subject in Chapter 3. Even so, there will be few areas in the
book as a whole where the modern importance of doctor/patient commu-
nication is not self-evident.

Causation
Once again, the intricacies of the construct of causation within the tort of
negligence are very considerable and it would be out of place here to

39
R. (on the application of N) v. Doctor M and others [2003] 1 FLR 667, (2002) 72 BMLR 81
at [29]. This was a case of disputed treatment rather than of negligence.
40
For which, see T. L. Beauchamp and J. F. Childress Principles of Biomedical Ethics (New
York: Oxford University Press, 5th edn 2001).
Nature of the troubled pregnancy 13

attempt more than a reminder of these. Put at its simplest, it means that
the patient who has sustained a recompensable injury as a result of
negligence must show that the negligence caused the injury if he or she
is to be successful in an action – in short, can the injured claimant prove
that he or she would now be normal but for the health carer’s negligence?
On the face of things, this should raise few problems; in practice, it often
presents as the major hurdle to be overcome. A few examples will suffice.
First, it may be asked: did the admitted negligence make any difference?
Bolitho, which has been mentioned above, was a case in point. In that case,
the house officer failed to attend an emergency. Medical opinion – at least,
in Bolam terms, a responsible body of medical opinion – was, however, to
the effect that inaction was the treatment of choice, thus, causation could
not be shown. A more apposite example in the present context is to be
found in the doctor who fails to diagnose the possibility of intra-uterine
fetal viral infection; the fetus is born severely disabled – but can the doctor
be said to have caused the injury? Analysis of this question occupies a
major part of Chapter 6. Alternatively, is it possible to distinguish
between the effects of the patient’s condition and those of his or her
treatment? Is, for example, a child’s deafness due to the meningitis from
which s/he was suffering or to the excess penicillin that was negligently
used in treatment?41 Can we say with probability that a fetal disability was
due to the medication prescribed to the mother?42 How do we choose the
cause of an injury when there are several competing possibilities?43 The
list is close to endless but, for present purposes, perhaps the most impor-
tant example relates specifically to information-based negligence
whereby, before she can succeed in her action, the complainant must
show that she would have acted on the information had it been properly
presented – and it may be a difficult task to convince a judge who has, so
to speak, ‘been there before’. For these reasons, further consideration of
the causation issue is, again, deferred until Chapter 3.
Having reminded ourselves of these general principles, we can now go
forward to discuss how they apply in the particular context of the troubled
pregnancy.



41
See, for example, Kay’s Tutor v. Ayrshire and Arran Health Board [1987] 2 All ER 417,
1987 SLT 577, HL.
42
The well-known thalidomide case was argued for several years in Germany and was
eventually settled out of court: Pamela R. Ferguson, Drug Injuries and the Pursuit of
Compensation (London: Sweet & Maxwell, 1996) at 127.
43
Although unrelated to reproductive medicine, Wilsher v. Essex Area Health Authority
[1988] AC 1074, [1988] 1 All ER 871, HL, gives a good example of the arguments
that can be developed.
2 Voluntary and involuntary termination
of pregnancy




Introduction
One cannot help feeling that the topic of abortion has been argued for so
long and with such intensity that there can be nothing new left to say – and
this leads to some doubt as to the value of a chapter on the subject in this
book. Nevertheless, it is one that still arouses intense emotions and there
are few people who, when challenged, will not express strong opinions on
the ethical and sociological expedience of voluntary termination of preg-
nancy. As a result, personal attitudes tend to be polarised.1 We can,
however, say, with a sense of relief, that the abortion issue leads to less
conflict in the United Kingdom than it does in many other parts of the
world. But this is not because we have adopted a middle view – indeed, it is
doubtful if it is possible to do so. Rather, there is a sense of war-weariness
accompanied by something of a tacit agreement to stop fighting about it, an
attitude that helps to explain the paucity of case law that abortion, per se,
has spawned in this country.2 Even so, strongly held views that are sup-
pressed are dormant, not deceased. They can be aroused whenever a new
situation arises and, given the intense activity in the field of reproduction
that is so much a feature of modern medical innovation, relevant new
questions are likely to arise at any time – as is evidenced by the flurry of
intellectual and parliamentary activity, albeit at an unofficial level, which
arose in early 2006, particularly in relation to late terminations.3


1
There are very few other topics about which one could read in a prestigious journal: ‘On
[X]’s view, abortion is almost never permissible; on my view, abortion is almost always
permissible’ – M. T. Brown, ‘A Future Like Ours Revisited’ (2002) 28 Journal of Medical
Ethics 192–5.
2
This contrasts with the American experience where physical violence combines with con-
tinued legal action which includes accusations of racketeering and extortion: Scheidler v.
National Organization for Women, Inc. 537 US 393 (2003). For a general comparison, see
Colin Francome, Abortion in the USA and the UK (Aldershot: Ashgate Publishing, 2004).
3
By reason, generally, of ‘the advances in modern neonatal care since 1967’. See BBC
News ‘Cardinal Urges Abortion Rethink’, 21 June 2006 at http://news.bbc.co.uk/2/hi/
health/5099362.stm.

14
Voluntary and involuntary termination of pregnancy 15

This brings us to a second reason why we must start this book with
a basic look at abortion legislation and practice – that is, that it is
intimately associated with almost every current medico-legal problem
that is discussed in the following chapters. Voluntary termination
presents as an available alternative, or a significant factor, in the manage-
ment of the troubled pregnancy in all its forms and it is, of course, the
ultimate expression of the unwanted pregnancy. For good or for bad, it
lies at the heart of this book and, at the risk of covering too much old
ground, it must be addressed before any other of the several topics that
follow.


Definitions
It is important that we are clear as to the nature of the subject insofar as
there is particular confusion between the expressions ‘miscarriage’ and
‘abortion’. The great majority of readers would, I believe, regard a mis-
carriage as the natural loss of an early fetus.4 A difficulty here, however, is
that the Offences Against the Person Act 1861, sections 58 and 59, in
which the core abortion law in England and Wales is to be found, des-
cribe the offence of ‘procuring the miscarriage of a woman’ – the word
‘abortion’ occurs only in a marginal note. Procuring a miscarriage is, how-
ever, decriminalised in certain circumstances which are defined in the
Abortion Act 1967; it is, therefore, reasonable to assume that the law
makes no distinction between the two terms.
Even so, the 1967 Act is itself coy in the use of the word ‘abortion’,
which appears only indirectly in relation to other ‘law relating to abor-
tion’. Elsewhere, the Act speaks only of ‘termination of pregnancy’ and it
is worth remembering that the 1967 Act was born and nurtured until the
last moment as the Medical Termination of Pregnancy Bill.5 I myself
think that the volte-face was unfortunate. The word ‘abortion’ – together
with its correlate ‘abortionist’ – has strong criminal associations, whereas
the 1967 Act has, at best, a minimal criminal interest and is, essentially, a
decriminalising instrument. Nonetheless, although I prefer, where pos-
sible, to refer to therapeutic termination of pregnancy in those terms,
the synonymous use of the word ‘abortion’ is so widespread that it cannot
be avoided.


4
An early fetus because the loss of a fetus in the third trimester of pregnancy might equally
be regarded as a premature birth.
5
The change of name was a ‘last ditch’ stratagem designed to satisfy those who saw the
measure in terms of women’s rights rather than as a medical treatment.
16 The troubled pregnancy

The fetal persona
Definition, however, goes deeper than that and the abortion debate
hinges essentially on the further definition of what it is that is being
removed when pregnancy is terminated. It is certainly human tissue –
that is a mater of fact. Beyond that, is it a mere adjunct of its mother or is it
a human entity having its own humanity? And, if we say that it is the latter,
we must go still further and ask is it a human being or is it a human
person? These questions have, of course, been argued in depth by an
infinite number of commentators6 and no attempt at a detailed analysis is
to be attempted here. In particular, I will ignore the philosophy which
tells us that no human being is entitled to the respect due to a human
person until he or she is capable of what is, essentially, a cognitive
existence7 – simply because it represents, at the same time, a further
invitation to infanticide.8 At the same time, I take it as read that a fetus,
being human and in being, is a human being. The popular answer to that
dogmatic approach, it seems, is that it depends on the age of the fetus at
the time of the termination – the so-called ‘gradualist’ approach to the
abortion dilemma, by which the fetal claim to recognition strengthens as
the organism itself develops.
I return to this later on but, presently, and without prejudice to the
outcome of the debate, I find this a difficult position to accept in logic.
Fetal development is a slow process which demonstrates no dramatic
changes related to moments in time. There is no essential developmental
distinction between the fetus in the third stage of labour and the neonate;
the fetus that has quickened is indistinguishable from one that is awaken-
ing; the embryo immediately before implantation does not differ from one
that has just embedded in the uterine mucosa. In short, while one can
think and speak of stages in fetal development, they remain stages in the
development of the same fetus and there is no logical reason to accord it a


6
Of which the following is a cross-section: Baruch Brody, Abortion and the Sanctity
of Human Life: A Philosophical View (Cambridge, Mass.: MIT Press, 1985);
Michael Tooley, Abortion and Infanticide (Oxford: Clarendon Press, 1983); R. N.
Wennberg, Life in the Balance (Grand Rapids: W. B. Eerdmans, 1985); Norman M.
Ford, When Did I Begin? (Cambridge: Cambridge University Press, 1991); Bonnie
Steinbock, Life before Birth: The Moral and Legal Status of Embryos and Fetuses (New
York: Oxford University Press, 1992). Probably the most publicised early article is that
by Judith Jarvis Thomson, ‘A Defense of Abortion’ (1971) 1 Philosophy and Public Affairs
47–66.
7
For which Tooley, n. 6 above is probably the best known advocate. See also Daniel
Callahan, Abortion, Law, Choice and Morality (New York: Macmillan, 1970).
8
Used in its popular sense. In strict English law, infanticide is the killing of a child aged less
than one year by its mother when she is in a state of diminished responsibility.
Voluntary and involuntary termination of pregnancy 17

different respect based on its age. The only point at which there is a major
and immediate change in status is when it is formed – that is, at fertilisa-
tion of the ovum. There is, therefore, much to be said for adopting the
conservative Roman Catholic view that human life begins at conception.
I make no secret of my moral support for the recognition of an indi-
vidual fetal identity which carries with it individual fetal rights. Even so,
the clear difficulty with the above analysis is that it takes no account of
potentiality. If we accept it, we must also attribute full human existence to
the embryo in vitro and, while one must agree with the Warnock
Committee that the human embryo in the Petri dish ought to have a
special status,9 that seems to carry the proposition too far. It does, for
example, place the death of a genetically abnormal embryo during pre-
implantation diagnosis on a par with the abortion of a genetically abnor-
mal fetus – and comparatively few would agree that this is, in fact, the
case.10 The in vitro embryo has no future in itself; left undisturbed, its
only destiny is death – in short, it cannot have a human existence, or what
has been called a ‘future of value’,11 without a change of ambience. The
same applies to the embryo in its passage to the uterine environment and,
in either case, the critical change occurs at implantation. Thus, while
admitting that it carries an element of pragmatism, I conclude that it is at
the point of implantation that meaningful human life begins.12
Such a view may go some way to satisfying the doubts one may have as
to the morality of assisted reproduction as currently practised, but it has
no practical effect on the abortion debate. The concept of undertaking a
termination of pregnancy before implantation is absurd13 and it follows
that any distinction between the theories that place the beginning of
human life at conception and at implantation is inconsequential in the
present context. Moreover, I have already argued the case for regarding
the moral status of the implanted fetus as being unaffected by its


9
Dame Mary Warnock (Chairman), Report of the Committee of Inquiry into Human
Fertilisation and Embryology (1984), Cmnd. 9314.
10
For discussion, see C. Cameron and R. Williamson ‘Is there an Ethical Difference
between Preimplantation Genetic Diagnosis and Abortion?’ (2003) 29 Journal of
Medical Ethics 90–2. I return to this point later.
11
The deprivation of a future of value has been cited as a major reason for regarding
abortion as unacceptable: Don Marquis, ‘Why Abortion is Immoral’ (1989) 86 Journal
of Philosophy 183–202. For a critique, see J. Savulescu, ‘Abortion, Embryo Destruction
and the Future of Value Argument’ (2002) 28 Journal of Medical Ethics 133–5.
12
For a recent criticism of this view, see Margot Brazier,‘Human(s) (as) Medicine(s)’ in
Sheila A. M. McLean (ed.), First Do No Harm: Law, Ethics and Health Care (Aldershot:
Ashgate Publishing, 2006), chapter 12.
13
And is legally untenable – see R (on the application of Smeaton) v. Secretary of State for
Health [2002] 2 FLR 146, (2002) 66 BMLR 59.
18 The troubled pregnancy

maturity.14 It follows that I regard abortion at any stage of gestation as the
taking of human life – the problem, then, is to establish how this can be
justified within the twin sets of principles of medico-legal ethics and
medical law.
Opposition to abortion does not, of itself, constitute an attack on a
woman’s right to respect for privacy in her life. No-one would deny that
such rights exist. We have, however, seen that, despite the fact that the law
bestows no legal rights on the unborn fetus,15 it is difficult, and undesirable,
to avoid accepting that the fetus has at least some moral rights.16 The
problem, then, is to decide whether a woman’s right to privacy is to be
regarded as one that is absolute or qualified.
The orthodox feminist position adopts the former view, and this is, at
least in part, supported by the legal presumption as to fetal rights. In effect,
it can be argued that there is no such thing as maternal/fetal conflict because
a conflict involves two persons – and the fetus is not a person.17 The ‘rights
discourse’ is, however, relatively unimportant in the context of this book
which is, essentially, based on the law as it stands. Even so, the law in the
United Kingdom, in guarding our rights, undoubtedly adopts a Janus-faced
position on this particular issue. True, the fetus has no legal rights and, as
we will discuss briefly later on, there is no such offence as feticide; yet,
specifically and uniquely, it qualifies a woman’s right to determine her own
bodily integrity – and, in so doing, indirectly protects fetal life – by prohi-
biting her securing her own miscarriage or enlisting the help in doing so of
anyone other than a registered medical practitioner.18 Paradoxically, how-
ever, it is the very attempt to resolve this dichotomy by way of a balancing
act that provokes the strongest criticism. To quote Professor McLean:

14
Popular usage has it that an embryo becomes a fetus at eight weeks’ maturation – see
Smeaton, n. 13 above at [143–7]. I can see no logical or physiological reason for making
such a distinction and throughout this book I reserve the term ‘embryo’ for the pre-
implantation stage of development; thus, an implanted embryo becomes, terminologic-
ally, a fetus.
15
This scarcely needs supporting evidence but see, inter alia, Paton v. British Pregnancy
Advisory Service Trustees [1979] QB 276; Attorney-General’s Reference (No. 3 of 1994)
[1998] AC 245; Hamilton v. Fife Health Board 1993 SC 369.
16
The abortion debate is dissolved if you consider the fetus to be a human non-person – see
John Harris, ‘Consent and End of Life Decisions’ (2003) 29 Journal of Medical Ethics
10–15. A cognitive personhood theory, however, also involves regarding the neonate as a
non-person – a position that is legally unsustainable.
17
Of a mass of feminist literature, the reader is referred to the succinct account in Sheila
McLean, Old Law, New Medicine (London, Pandora Press, 1999); the argument quoted
above is to be found at p. 51.
18
Offences Against the Person Act 1861, ss. 58 and 59 as interpreted by the Abortion Act
1967. The 1861 Act does not run to Scotland where the position is covered by common
law. It is extremely unlikely that a woman would be prosecuted for procuring her own
miscarriage in Scotland.
Voluntary and involuntary termination of pregnancy 19

Showing respect for the embryo/foetus at the expense of women’s rights is a
monumental misunderstanding of the concept of respect and a perverse interpre-
tation of the value of human rights. It is to the law’s shame that it has in the past
colluded in this to the detriment of women.19
Clearly, then, we must look more closely at the problem – and from both
sides. First, we will consider the nature of fetal status.


Recognition of fetal status
Although, as already explained, I find it hard to see any moral distinction
on the basis of fetal maturity in respect of fetal protection – and I am not
entirely alone in this respect20 – it is almost inevitable in practice that the
weight given to fetal interests in the balance should be held to depend, in
some measure, on the stage of fetal development – for it is this which
dictates its potential for an independent existence. Inevitably, then, the
discussion reverts, primarily, to the concept of fetal viability.

The viable fetus. Viability is essentially an American concept
stemming from the seminal Supreme Court decision in the historic case
of Roe v. Wade.21 Here, as is only too well known, the Court laid down its
‘three trimester’ rule which can be summarised:
* In the first trimester, the possibility of a termination was a matter to be

resolved solely between the pregnant woman and her physician;
* During the second trimester, the state could intervene by reason of its

interest in the health of the mother;
* Once the fetus was viable – a point which the court assessed as lying

between the twenty-fourth and twenty-eighth week of pregnancy – the
state had a compelling interest in the preservation of life and could,
therefore, intervene on its behalf except when the conditions threat-
ened the life or the health of its mother.
Consequent upon the several definitional doubts left open by the ruling,
the American case law on abortion has become massive.22 For present
purposes, however, we can extract two points which are of immediate


19
McLean, n. 17 above, at 69.
20
In Re F (in utero) [1988] Fam 122, [1988] 2 All ER 193, an attempt was made to ward a
child in utero; it was conceded that this could only apply to a viable fetus. Balcombe LJ
had this to say: ‘While I understand the practical reasons for this concession, it does not
appear to me to rest on any logical basis . . . If there is jurisdiction to protect a foetus . . .
I do not see why that jurisdiction should start only at a time when the foetus is capable of
being born alive’ (at Fam 142, All ER 199).
21
410 US 113 (1973), 98 S Ct 705 (1973).
22
A recent review is to be found in Francome, n. 2 above.
20 The troubled pregnancy

interest from the United Kingdom perspective. First, the American juris-
prudence is founded very largely on American constitutional law and,
particularly, on the right to privacy that it embraces.23 It has, therefore,
had very little influence on the United Kingdom situation. Second, its
concentration on viability certainly preserved some rights for the fetus but
at the same time, left these ill-defined as to the limits of enforcement24 –
this being because viability is something of an artificial construct.
There are two complementary reasons for this. First, although the
correlation of fetal development with its gestational age is remarkably
consistent, not all fetuses will have a similar capacity for life despite being
of similar gestation. More importantly, there comes a time when viability
depends not only on fetal anatomo-physiology but equally, or even more
so, on the neonatal environment – and, in particular, on the quality of
medical assistance that is available after birth. These led the Justice of the
Supreme Court, O’Connor, to the now famous truism:
The lines drawn [in Roe] have become blurred . . . The State can longer rely on a
‘bright line’ that separates permissible from impermissible regulation . . . Rather,
the State must continuously and conscientiously study contemporary medical and
scientific literature in order to determine whether the effect of a particular regu-
lation is to ‘depart from accepted medical practice’.25
And, as we have already noted, it is the reality of such medical and
scientific progress that has recently rekindled the abortion debate in the
United Kingdom where it has, in effect, lain dormant for decades.
Despite its American origins, the concept of viability is not entirely foreign
to United Kingdom law. The offence of child destruction was defined in the
English Infant Life (Preservation) Act 1929 as intentionally causing the
death of a child capable of being born alive before it had an existence
independent of its mother.26 Live birth has been defined as a child:
that is breathing and living by reason of its breathing through its own lungs alone,
without deriving any of its living or power of living by or through any connection
with its mother.27


23
Based on the interpretation of the 14th Amendment and the protection of liberty and
privacy in particular. Are the resultant ‘rights’ absolute or must they yield to compelling
State interests even if the right, itself, is, in US terms, ‘fundamental’?
24
Indeed, the Supreme Court refused to be drawn on the point leaving the assessment to
the physicians in individual cases.
25
In Akron (City of) v. Akron Center for Reproductive Health 462 US 416 (1983) at 455–6.
26
The original Abortion Act 1967, s.5(1) described the 1929 Act as ‘protecting the life of a
viable foetus’; this sentence has, however, now been deleted: Human Fertilisation and
Embryology Act 1990, s.37(4).
27
Rance v. Mid-Downs Health Authority [1991] 1 QB 587, (1991) 5 BMLR 75, per Brooke J
at QB 621, BMLR 92.
Voluntary and involuntary termination of pregnancy 21

Theoretically, therefore, a distinction is to be made between ‘live birth’
and ‘viability’ insofar as there is no time requirement imposed on the
former whereas the term ‘viable’, if for no reason other than popular
usage, implies survival for a reasonable, albeit undefined, time.28
Brooke J, however, disposed of this quibble in holding that the statutory
use of the word ‘viable’29 was no more than ‘a convenient shorthand for
the words ‘‘capable of being born alive’’’.30 To this extent, therefore,
viability does have a place in the English jurisdiction; the temporal
limitations on legal termination of pregnancy are, therefore, very similar
on both sides of the Atlantic and are probably so, at least, throughout the
Anglophone world. It is, however, to be remembered that the fetal lung is
morphologically incapable of oxygenating the blood until development is
reasonably advanced – Brooke J’s definition, thus, clearly sets a limit on
viability irrespective of the state of medical technology,31 and that water-
shed can be placed at approximately 22 weeks’ gestation.
For present purposes, however, we must concentrate more closely on
the overall significance of viability in the abortion debate and one can
legitimately separate this into moral and practical components. As to the
former, it is clear from what has gone before, that I cannot see that
viability provides us with any morally significant division between what
is an acceptable and what is an unacceptable termination of an apparently
normal pregnancy. The fetus that is just non-viable is the same fetus as
will be viable in the near future; there is no moral difference in destroying
it at either side of the, admittedly, ephemeral dividing line. The difficulty,
however, is that, as we have already discussed, the same can be said of the
fetus at any stage of development following implantation. The logical
conclusion is that termination of pregnancy at any time, other than for
recognisable medical reasons,32 must be regarded as morally offensive.
While this, roughly speaking, represents my personal stance, it disregards
the many arguments in favour of legalised abortion – to which we will
return briefly below; moreover, we live in a community and the 1967 Act
has withstood the test of time – there is no doubt that, rightly or wrongly,
the majority of the community support the policy that has been
adopted by successive governments and is firmly entrenched within the
legal system. But, in so saying, we have moved from deontological
considerations to those governed by policy – or, perhaps, to a form of

28
It was also so defined as ‘capable of meaningful life outside the womb’ in Roe v. Wade at
410 US 163.
29
Rance, n. 27 above. 30 ibid., at QB 622, BMLR 93.
31
See also Sir John Donaldson MR in C v. S [1988] QB 135 at 151, (1992) 2 BMLR 143
at 157.
32
The sophistry of the Abortion Act in this respect is discussed further below.
22 The troubled pregnancy

communitarian ethics. Put another way: ‘to believe that most (if not all)
abortions are immoral is not necessarily to believe that a legislature
should criminalize most abortions’.33
In essence, the viability ‘standard’ is one expression of the violability
justification of abortion. Under this mantle, we start from the premise
that human life is inviolable34 – that is to say a human being is ‘not to be
violated: not liable or allowed to suffer violence: and to be kept free from . . .
assault’.35 Since it is admitted that the fetus is a human being, the ethical
key to the impasse lies in establishing that there is a period in fetal develop-
ment when it is not inviolable – in other words, it has not achieved some
property that distinguishes a mass of human tissue from a human being.36
The difficulty then becomes that of identifying that necessary property.
The most tangible of these, physiologically speaking, is the appearance
of the primitive streak, which represents the incipient formation of the
central nervous system; it is only at this point that we can be certain that
we are dealing with an individual being.37 But, while this is of major
importance in the management of the embryo in vitro, it has negligible
significance in the abortion debate.38
The other clear candidate for endowing the fetus with the non-violable
status is viability or, as defined in English law, a capacity to be born
alive.39 In theory, at least, it is impossible to make a moral distinction
between the viable fetus and the pre-term neonate given, again, the point
that the only physical difference between them lies in their environment.
It would be wrong to treat them differently,40 and both are protected by
law.41 The particular significance here, however, is that the equation of

33
Michael J. Perry, Under God? (Cambridge: Cambridge University Press, 2003), p. 99.
I am much indebted to chapter 6 – ‘Religion, Politics and Abortion’ – in this relatively
recent book.
34
Though, in all fairness it has to be said that the justification for this is based on no more
than that the being is human. Some, for example, question whether it is proper to
distinguish humans from other animals on this shaky foundation – e.g. Peter Singer,
Rethinking Life and Death (New York, St. Martin’s Press, 1995).
35
Perry, n. 33 above, at 102.
36
See, for example, Stanley Rudman, Concepts of Person and Christian Ethics (Cambridge:
Cambridge University Press, 1997).
37
As is well known, this is why the Report of the Committee of Inquiry into Human Fertilisation
and Embryology, n. 9 above, chose this ‘property’ as the point beyond which a human
embryo should not be maintained alive in vitro and unfrozen.
38
It would be significant were the discussion related to so-called menstrual extraction or
contragestation techniques. Abortion, however, refers in common usage to the termina-
tion of a diagnosed pregnancy.
39
Rance, n. 27 above.
40
As will be seen in Chapter 7, where the management of the disabled neonate is discussed.
41
The Infant Life (Preservation) Act 1929 does not run to Scotland where the validity of an
offence comparable to child destruction is uncertain.
Voluntary and involuntary termination of pregnancy 23

inviolability and viability lends moral justification to the current move to
lower to 22 weeks, at least, the basic gestational age beyond which
termination of pregnancy, other than to preserve the life of the mother,
would be unlawful.42 But, of course, this concession to the fetal interest
can, and will do little to satisfy those who regard viability as no more than
one stage in the development of an existing human being.
To define what may not be done is, however, a negative approach –
something of an apologia. It is intellectually more honest to define an
‘acceptable’ abortion in positive terms – always, of course, assuming that
there is such an entity – and to decide when a termination on ‘social’
grounds would be morally and legally permissible. Arguably, in the light
of the previous discussion, the answer could be the termination of any
pregnancy involving a non-viable fetus and this, as we will see, is effec-
tively the position adopted in the United Kingdom. Other jurisdictions –
indeed, possibly the majority of those that do not disapprove abortion
outright other than to avoid danger to the life of the mother43 – are more
restrictive and adopt a gestational age of 10 to 12 weeks as the point at
which the inviolability of the fetus is accepted, at least to a modified
extent. But, if we follow my argument as outlined above, it follows that
there is no reason to presuppose a change in fetal status at this stage.
Wherein, then, lies the justification of what appears to be a policy
decision?
First, of course, there is the undoubted instinctive distaste for the
deliberate mutilation of a fetus that has all the physical attributes of a
human being – witness, as a special case, the repugnance with which
termination by so-called ‘partial birth’ has been greeted in the United
States.44 That, of itself, however, would be unlikely to provide sufficient
reason in a pluralistic society by which to make a logical case for separat-
ing attitudes to the termination of early and late non-viable fetuses. An
alternative and more likely ground would be to consider the effect on the
pregnant woman insofar as late terminations are associated with signifi-
cant maternal morbidity while, by contrast, it is everywhere agreed that
an early termination carries less risk to the mother than does a normal
pregnancy. This, in effect, is to apply the Roe v. Wade trimester test which,
both in practice and, at best, paralogic, results in termination on demand
in the first twelve weeks of pregnancy.

42
In fact, less than 1 per cent of terminations are currently carried out between 22 and 24
weeks’ gestation: (2005) 206 Bulletin of Medical Ethics 6.
43
Which, within the European Union, includes the Republic of Ireland, Poland, Malta,
Andorra, San Marino and Liechtenstein.
44
See Stenberg v. Carhart 530 US 914 (2000) and the consequent passage of the Partial-
Birth Abortion Ban Act 2003 through Congress.
24 The troubled pregnancy

Maternal status
The purpose behind this discussion of fetal status has been an attempt to
balance the abortion debate in terms of what is loosely called ‘human
dignity’ as it applies to the developing fetus. Inevitably, such an approach
must favour the fetus in that it stresses the value of fetal life. There is no
reference to fetal rights insofar as there are no such things in legal terms45
save those that arise indirectly by way of restriction of the rights of others.
Those rights that are most likely to be circumscribed in relation to
pregnancy are those of the pregnant woman; we must therefore consider,
if only briefly, the nature of those rights and to what extent they are
infringed by the Abortion Act.
The starting point for this must be the unarguable right of any person to
the integrity of his or her body. Personal autonomy is now so deeply
entrenched as a guiding principle in medical law as to be accepted almost
without question46 – the most impressive example in recent years lying in
the case of Ms B47 in which a hospital was actually fined, albeit nominally,
for refusing to disconnect, on the demand of the patient, apparatus on
which her life depended. For present purposes, however, the more impor-
tant exemplar case is that of Re MB48 in which the Court of Appeal
upheld the right of a pregnant woman to refuse treatment even though
this would result in the death of a full-term fetus.49 It is, therefore,
apparent that, outside the Abortion Act, the pregnant woman’s
autonomy takes precedence over the well-being even of a viable fetus.
To evaluate the significance of this, we must look at the wording of the
relevant section of the 1967 Act as modified by the Human Fertilisation
and Embryology Act 1990, section 37.



45
The concept of value is well argued by Rosamund Scott, ‘The English Fetus and the
Right to Life’ (2004) 11 European Journal of Health Law 347–64.
46
Although there is a noticeable undercurrent of increasing respect for the community’s
values: Onara O’Neill, Autonomy and Trust in Bioethics (Cambridge: Cambridge
University Press, 2002); G. M. Stirrat and R. Gill, ‘Autonomy in Medical Ethics after
O’Neill’ (2005) 31 Journal of Medical Ethics 127–130; Katherine O’Donovan and Roy
Gilbar, ‘The Loved Ones: Families, Intimates and Patient Autonomy’ (2003) 23 Legal
Studies 332–58.
47
B v. NHS Hospital Trust [2002] 2 All ER 449, (2002) 65 BMLR 149.
48
Re MB (an adult: medical treatment) [1997] 8 Med LR 217, (1997) 38 BMLR 175, CA.
Similar reasoning was followed in St George’s Healthcare NHS Trust v. S, R v. Collins, ex p
S [1998] 3 All ER 673, (1998) 44 BMLR 160.
49
Thus overriding Lord Donaldson who had previously opined that the only situation in
which a doctor might treat in the face of a valid refusal was when that choice might lead to
the death of a viable fetus: Re T (adult) (refusal of medical treatment) [1992] 4 All ER 649 at
652–3, (1992) 9 BMLR 46 at 50, CA.
Voluntary and involuntary termination of pregnancy 25

The Abortion Act 1967
In summary, section 1(1) now states that a person shall not be guilty of an
offence under the law of abortion when termination is performed by a
registered medical practitioner and two registered medical practitioners
are of the opinion, formed in good faith –
(a) that the pregnancy has not exceeded its twenty-fourth week50 and
that the continuance of the pregnancy would involve risk, greater
than if the pregnancy were terminated, of injury to the physical or
mental health of the pregnant woman or any existing children of her
family; or
(b) that the termination is necessary to prevent grave permanent injury to
the physical or mental health of the pregnant woman;51
(c) that the continuance of the pregnancy would involve risk to the life
of the pregnant woman greater than if the pregnancy were termi-
nated;52 or
(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 severely
handicapped.53
Termination under the Act may be carried out in National Health Service
hospitals or in places approved for the purpose by the Minister or the
Secretary of State (s. 1(3)). It is this clause which legalises abortions
performed privately and for a fee.
It is very doubtful if much further discussion of grounds b) and c) is
necessary. No jurisdiction gainsays the absolute right of the pregnant
woman to preserve her life should it be jeopardised by continuance of
the pregnancy. My information is that mainstream Roman Catholic
teaching will also accept the rule when the situation arises – the doctor
is entitled to follow good medical practice, subject, of course, to the
proviso that he or she is morally bound, by Catholic teaching, to attempt
to save both mother and child if that is possible. And that, in practice, will
likely be everyone’s choice.
It is to be noted, however, that terminations under heading (c) will,
generally, be late; the woman concerned has wanted her baby, she has
carried it to near term and its loss is a tragedy, albeit necessary – they pose

50
As amended by Human Fertilisation and Embryology Act 1990, s.37(1).
51
It is to be noted that s. 1(1)(b) contains no comparative element – there simply has to be
a risk.
52
Subsections (b) and (c) are not restricted by requiring the opinion of two registered
medical practitioners; single practitioners may act on their own initiative in such
circumstances.
53
Discussion of this last ground will be postponed until Chapter 3.
26 The troubled pregnancy

problems that are wholly different from those associated with what is
generally understood as an abortion. Much the same applies to reason
(b) although the termination may, of course, be indicated far earlier in the
pregnancy. However, although they are of a special character, subsections
1(1)(b) and (c) are significant in the present context in that they impose
no restriction on the woman’s right to control her own body. The doctor/
patient relationship is on a normal one-to-one footing and she can make
her choice without undertaking any enforced balancing act between fetal
and maternal interests. Thus far, then, the Act is consistent with the
rulings in Re MB and St George’s Healthcare NHS Trust v. S.54
It is, however, section 1(1)(a), which lies at the heart of the abortion
debate, and it is there that we need to consider seriously the impact of the
1967 Act on women’s rights. It would be possible to fill a large book doing
no more than reviewing the literature on this single point. Collaterally, it
is extremely difficult to extract an individual view to represent the
so-called ‘pro-choice’ lobby and which will be regarded as fairly chosen.
Because of our very close academic association over many years, I turn to
Professor McLean who puts the problem succinctly:
The liberty to decide may or may not in fact result in a truly free choice, but it is
certain that a free choice will never be possible unless reproductive liberty (includ-
ing the right to terminate pregnancies) is seen as an issue which transcends clinical
‘facts’ and medical capacities and becomes focussed on the real issue – namely,
women’s freedom from the biological lottery.55
The attack on the Abortion Act is, thus, two-pronged. Firstly, it is con-
demned as not being ‘rights based’56 and, secondly, as a corollary, it has
transferred the right to self-determination from individual women to the
medical profession – ‘scientific cant has reduced a matter of human rights
to one of medical monopoly’57 – and both these criticisms can be legiti-
mately levelled at section 1(1)(a). At the same time, given that the former
depends upon the latter, they are indivisible – and this gives rise to some
contradictory and inconsistent results.
On the one hand, for example, medicalising abortion places it firmly
within the general management of pregnancy and, as such, it is governed
by ethical medical practice as a whole. Thus, third party intervention

54
n. 48 above.
55
McLean, n. 17 above at 83. The more deeply interested reader should study Emily
Jackson, Regulating Reproduction: Law, Technology and Autonomy (Oxford: Hart
Publishing, 2001).
56
Jackson, n. 55 above, believes that the passage of the 1967 Act depended largely on ‘the
reformers’ astute presentation of legal abortion as a measure designed to promote public
health, rather than an issue of women’s rights’ (at 84).
57
McLean, n. 17 above, at 91.
Voluntary and involuntary termination of pregnancy 27

within a doctor/patient relationship is inadmissible58 and the matter of
termination is one to be resolved between the patient and her doctor. So
far so good, but, almost uniquely by modern day standards – and incon-
sistently with Re MB and St George’s Healthcare – the woman does not
have the last say in arranging her treatment; instead, two doctors must
form the opinion that termination is the right treatment – at least in a
prophylactic sense. As Brazier crystallises the position: ‘Abortion in
England is a privilege granted or withheld at the doctor’s discretion.’59
The paradox here lies in the fact that, although the ‘women’s choice’
movement rails against this power, it can be said to strengthen its case
insofar as it removes the argument from the potentially confrontational
ambience of women’s rights and places it firmly within the universal sphere
of patients’ rights. And this brings us back to the beginning of what is
rapidly becoming a circular argument: given that abortion is regarded as
part of the medical management of pregnancy, it is difficult to counter the
argument that the procedure should – indeed, perhaps must – be con-
trolled by the medical profession.60
Nevertheless, it is apparent that a powerful theoretical case can be
made to the effect that the Abortion Act makes substantial inroads into
female patients’ rights. The question is – can the same be said of a
corresponding practical impact? We can consider this question, again,
from the singular aspect of section 1(1)(a).

The Abortion Act, section 1(1)(a) in practice
In contrast to comparable legislation in many other jurisdictions, the
terms of the 1967 Act are very wide and were probably so designed in
order to preserve medical control.61 However, the result is an Act that is so
devoid of teeth as to make it, in the opinion of many – and certainly in that
of the present author – virtually meaningless as a measure of control.

58
For example, the woman’s husband can play no decisive role in what is her medical
treatment. See C v. S [1988] QB 135, [1987] 1 All ER 1230; for Scotland, Kelly v. Kelly
1997 SC 285, 1997 SCLR 749.
59
Margaret Brazier Medicine, Patients and the Law (London: Penguin Books, 3rd edn 2003) at
320. Note that, in the event that the woman lacks capacity to consent to a termination, her
doctors have discretion under the Act to proceed on the basis of a ‘best interests’ test without
recourse to the courts: Re SG (adult mental patient: abortion) [1991] 2 FLR 329, sub nom Re
SG (a patient) (1992) 6 BMLR 95. The courts must be involved if there is any doubt: D v. An
NHS Trust (Medical treatment: consent: termination) [2004] 1 FLR 1110 – and they may not
always decide in favour of termination: Re SS (an adult: medical treatment) [2002] 1 FLR 445.
60
The alternative concept of a trade of ‘abortionist’ is bizarre if for no other reason that
medical expertise is essential in the event of complications.
61
J. Keown, Abortion, Doctors and the Law (Cambridge: Cambridge University Press, 1988)
provides a good analysis of the history of the Act.
28 The troubled pregnancy

The first important feature to note is that section 1(1)(a) is compara-
tive. No degree of ‘risk of injury to the physical or mental health of the
pregnant woman or any existing children of her family’ imposed by the
pregnancy is defined as sufficient to justify a termination – it has simply
got to be greater than that associated with the procedure. Moreover the
risk does not have to be imminent or even likely; it has only to exist as a
hypothetical possibility – and such a risk is inherent in the state of
pregnancy. It is now almost trite62 to say that, although the close-to-
negligible tangible risks of an early termination do vary with the age and
parity of the mother, the potential risks of a full-term pregnancy will always
be greater. We can be more specific. Even if she is not at risk of physical
injury, a woman wanting to terminate her pregnancy must almost always
be in a state of mental anxiety which can only be – or, at least, will most
probably be – exaggerated if the pregnancy persists. The fact that, as
those opposed to abortion on request will rightly say, the woman may
regret her decision to terminate, merely adds to the strength of the argu-
ment – it is always possible that the resultant anxiety will, in the end, be
less than it would have been had the pregnancy been terminated – but,
again, the risk that it will be greater is always there.
As to the future well-being of other existing children of the family, it is
yet another near-certainty that there is a risk of sibling jealousy. In similar
vein, no one could deny that the appearance of a new mouth to feed and a
body to clothe poses a risk to the economic – and, hence, physical – health
of the existing family; again, the fact that there may also be happiness in
the appearance of a new brother or sister is immaterial to the argument.
Finally, we must note that the Act states that, in coming to their con-
clusion, the certifying doctors may take account of ‘the pregnant woman’s
actual or reasonably foreseeable environment’,63 a condition which effec-
tively legalises abortion even on the grounds of fetal sex,64 for there is
nothing in the Act that limits the risks to those directly associated with the
condition of pregnancy.
The point that I am trying to make is that it is practically impossible
to perform an early termination of pregnancy illegally in Great Britain65
so long as the administrative formalities are completed. Moreover, the

62
I, for example, have expressed this argument for some time: J. K. Mason, Medico-Legal
Aspects of Reproduction and Parenthood (Aldershot: Ashgate, 2nd edn 1998) at 116 – and
similar observations have been made by many commentators.
63
S.1(2).
64
The significance of this within the ambience of some ethnic cultures hardly needs airing.
65
The 1967 Act does not extend to Northern Ireland. where abortion law is largely
governed by the historic decision in R v. Bourne [1939] 1 KB 687, [1938] 3 All ER
615 in which, effectively, the therapeutic concessions of the Infant Life (Preservation)
Voluntary and involuntary termination of pregnancy 29

wording of the Act is such that it is equally difficult to form an opinion as
to its lawfulness in ‘bad faith’. The operation may be performed badly or
unsympathetically, but the opinion cannot be gainsaid save, perhaps, in
the unlikely scenario that it is reached in disregard of the woman’s wishes.
This seems to have accounted, at least in part, for the fact that there has
been only one relevant conviction reported since the 1967 Act came into
force.66 Interestingly, Dr Smith in that case was charged under the
Offences Against the Person Act 1861, section 58, thus emphasising
that the 1967 Act is enabling in its purpose, despite the fact that section
5(2) states: ‘For the purposes of the law relating to abortion, anything
done with intent to procure a woman’s miscarriage . . . is unlawfully done
unless authorised by section 1 of this Act’ – which suggests that a charge
under that Act and section might be more appropriate.67
This extreme paucity of criminal reports68 supports my contention and
leads one to ask – is the ‘medicalisation of women’s rights’ argument very
much more than a storm in a teacup? Given that an early termination is
always available, is it too much of a constraint to require it to be author-
ised by a doctor? – given, again, that it is a doctor who will carry out the
procedure. It will be said – and is widely expressed in the feminist
literature – that the ‘conscience clause’ in the Act69 puts another hurdle
in the way of the woman seeking a termination, but this is a doubtful
objection; the doctor who has a conscientious objection to the taking of
fetal life is professionally and legally bound to refer the patient to a
colleague who is not so constrained.70 Indeed, in this respect access to
medical treatment by way of abortion is treated no differently from other
medical treatment. Most practices are well alert to the position and it is

Act 1929 were extended, and amplified, so as to apply to the non-viable fetus. The
Channel Islands have adopted legislation that is similar to, though rather more strict
than, that of Great Britain – e.g. Termination of Pregnancy (Jersey) Law 1997.
66
R v. Smith (John) [1974] 1 All ER 376, 58 Cr App Rep 106. In an unreported case (R v.
Dixon, Nottingham Crown Court, 21 December 1995), a gynaecologist who removed an
11-week fetus during a hysterectomy was acquitted of a charge under the Offences
Against the Person Act 1861, s.58; the main reason for prosecution appears to have
been the lack of consent on the part of the woman: Clare Dyer, ‘Gynaecologist Acquitted
in Hysterectomy Case’ (1996) 312 British Medical Journal 11–12.
67
Scarman LJ considered obiter that, although the point had not been tested, s.5(2) of the
Act implies that s.1 supersedes and displaces the existing common law (in R v. Smith
n. 66 above, at All ER 378).
68
And only two cases have been considered by the General Medical Council since the Act
came into force.
69
Abortion Act 1967, s.4.
70
Royal College of Obstetricians and Gynaecologists, The Care of Women Requesting Induced
Abortion: Guideline (2000), para. 2.3; Barr v. Matthews (2000) 52 BMLR 217 per Alliott J
at 227. It is probable that the same applies to the doctor who regards termination as
medically inappropriate in the circumstances: General Medical Council, Good Medical
Practice (2001).
30 The troubled pregnancy

doubtful if it makes any significant contribution to delays in treatment.71
In fact, it is surprising that the ‘Hippocratic (or professional) con-
science’72 has been so easily set aside. It must be well-nigh impossible
to prove the point one way or the other, but it is suggested that the
continued reliance on the ‘post-code’ distribution of abortion services
as evidence of undue medical influence is little more than a throw-back to
the 1970s, when doctors were being asked to discard what had been a
fundamental element in their training.
Jackson suggests that the majority even of those who are morally
opposed to termination of pregnancy as a matter of ‘right’ have ‘implicitly
accepted that a blanket prohibition upon abortion is not a realistic or
achievable goal’,73 and it must be apparent that I have to be counted
among that group. No-one could claim that that represents a high moral
platform; nonetheless, in the face of the powerful arguments that can be
deployed in either side of the debate, it is not wholly unreasonable. Very
few people would now support a ban on termination in the face of genuine
medical need – and probably the majority would extend this to genuine
social need. What offends those who defend a moral status for, or a value
in, the fetus is the assumption that abortion is justifiable on the basis that
it is no more than a corrective of failed contraception – and even more
offensive is the sophistry of the Act which attempts to hide that fact
behind a false facade of medical paternalism.
¸

A need for reform?
It can, of course, be argued that it is the sheer simplicity of the 1967 Act
that has spared Great Britain the continuing – and sometimes violent –
discord that is so evident, say, in the United States;74 we have no need to

71
In 1990, the House of Commons Social Services Committee concluded that it was far
from clear that the conscience clause was a significant factor in the variation of the
provision of abortion services: John Warden, ‘Abortion and Conscience’ (1990) 301
British Medical Journal 1013.
72
The Hippocratic Oath includes ‘Nor will I give a woman a pessary to procure abortion’ –
version reproduced in J. K. Mason and G. T. Laurie, Mason and McCall Smith’s Law and
Medical Ethics (Oxford: Oxford University Press, 7th edn 2005), Appendix A. It is
inevitable that this clause is deleted in those graduation ceremonies which include
profession of a form of the Oath – and even these are few and far between.
73
n. 55 above, at p. 90. Interestingly, since this chapter was written, the state of South
Dakota has attempted to do just that in its Women’s Health and Human Life Protection
Act 2006. Under this Act, deliberate termination of pregnancy is unlawful save when it is
intended to save the life of a pregnant woman. Other states may well follow suit but,
despite the political uncertainties as to the future membership of the court, one suspects
that the Supreme Court will declare the Act unconstitutional.
74
n. 2 above.
Voluntary and involuntary termination of pregnancy 31

fan the flames with repeated visits to the courts on points of constitution-
ality. In which case, one can properly ask – why tamper with it?
I have already expressed my doubts as to the logic of lowering the
age above which termination will be lawful only when the life or the
health of the pregnant woman is in serious jeopardy; the current value
of this proposal is that it reminds us that we cannot lose sight of the value
of fetal life – but it does not alter that value. Rather, it seems to me,
we might look again at the Act in terms of a balancing operation – does it
or does it not achieve its purpose in this way? And, importantly, is it
honest?
And I have to admit that, in concentrating on comparative risks as
between termination and continuance of the pregnancy, it is less than
honest in entrusting the decision to doctors. If any specialty is involved,
it must be the statisticians but, as has been already pointed out, the odds
in favour of greater risks in continuance of the pregnancy are, from
all angles, so obvious in the first trimester that it becomes a matter of
self-determination – ‘I want my pregnancy terminated’ becomes a suffi-
cient reason for doing so. If that is the case, then let us say so.
The corollary, however, is that, in so saying, we are, at the same time
denying the less than 12-week fetus any intrinsic value, and it is difficult
to see how even the most determined advocate of women’s rights could
extend that denial to the mid-term fetus. Although I have argued that
the fetus of 10 weeks’ gestation has the same intrinsic moral value as its 20
week counterpart, it would be unreasonable to maintain that there is
no comparative difference – at any rate in the eyes of the ordinary
man or woman. My quid pro quo would be to distinguish the 12 to 24
week fetus as a separate entity. In that case, I would eliminate any
comparative criteria and legalise termination only in the event of a sig-
nificant risk to the physical or mental health of the woman. The difficulty
here, of course, is that ‘significant’ is ill-defined and, possibly, undefin-
able – but that problem is common to the whole of abortion jurispru-
dence, and much of the common law tradition, and is, perhaps, an
inevitable consequence of attempting a balancing exercise.75 We might
end up in much the same situation as we are now, but we would do so by a
more honest route.


75
A generalised shift towards some recognition of fetal values is, I believe, becoming evident
despite the rigid rejection of fetal rights. See, for example, Lord McCluskey in Hamilton v.
Fife Health Board 1993 SLT 624 at 629. More significant is the cautious rejection of
‘absolute’ women’s rights by the European Court of Human Rights in Bruggemann and
¨
Scheuten v. Federal Republic of Germany [1977] 3 EHRR 113. The opinion is old but has
not been overtaken.
32 The troubled pregnancy

And, after all the argument and soul-searching that has surrounded
abortion prior to and following the passing of the 1967 Act, would that be
all that bad a result? We may well be doing wrong but, at the same time,
doing the right thing.76 In any event, the proposition is, effectively, sterile
as, despite the murmurings of parliamentary discontent, the government
does not intend to reopen the issue77 – an evasive policy which, as we will
see later, is adopted by the majority of jurisdictions and their courts.
We have, of course, not yet addressed the problems of termination of
pregnancy due to fetal abnormality. Discussion of this, which I believe
involves wholly different principles, will be found in Chapter 3.


Age and termination of pregnancy
Although the subject is, to an extent, parenthetical, age and access to
abortion is so much a feature of the morality of the procedure that a
mention of the legal aspects of ‘under-age’ termination of pregnancy can
scarcely be avoided. Moreover, it is more than an academic exercise.
Legal terminations were performed on 157 girls under the age of 14 in
England and Wales in 2004.78
There is no mention of any effect of age of the woman in the 1967 Act;
thus, one result of the medicalisation of abortion is that it will be subject
to the normal rules governing medical confidentiality and consent to
treatment in respect of minors. As to the former, it is recognised that
the duty of confidentiality to minors, other than those who are so young as
to be wholly in the hands of their parents, is the same as that owed to any
other persons. As to the latter, the overall benchmark position is that
parents must give consent to medical treatment for a minor below the age
of 18 but, as is well known, this is subject to considerable modification
depending on the actual age and mental capacity of the minor. In England
and Wales, consent to treatment by a minor aged 16 or more will be as
effective as if he or she was of adult status.79 Below that age, however, the

76
An idea uplifted, with acknowledgement, from Ann Furedi, ‘Wrong but the Right Thing
to Do: Public Opinion and Abortion’ in Ellie Lee (ed.), Abortion Law and Politics Today
(London: Macmillan Press, 1998), chapter 10.
77
Ann Treneman, ‘Sex and Relationships Muddy the Debate’ (2005) The Times, 20 July,
p. 28. See also n. 3 above.
78
‘Abortions at Record Level’ (2005) The Times, 28 July, p. 11. These were part of a
record 185,415 terminations during the year. Adult sexual activity with a girl (or boy)
below the age of 16 is, of course a criminal offence: Sexual Offences Act 2003, s.9;
Criminal Law (Consolidation) (Scotland) Act 1995, s.5. At least a few of these instances
must have been associated with the more serious offence of rape of a child below the
age of 13.
79
Family Law Reform Act 1969, s.8.
Voluntary and involuntary termination of pregnancy 33

situation is governed by the historic decision in Gillick80 which, in essence,
states that a minor below the age of 16 can give valid consent to treatment
provided that the doctor has made every effort to persuade the minor to
involve his or her parents and provided the doctor is satisfied that the minor
has sufficient understanding to appreciate the implications and risks of the
procedure – including those associated with refusal of treatment.81 Clearly,
this includes a correlative right to confidentiality which, in turn, includes
confidentiality in relation to the minor’s parents.82
The Gillick decision was originally related to providing advice as to the
use of contraceptives but it has since been extended to include all medical
and surgical treatment – indeed, the ‘Gillick-competent’ child is now an
accepted medico-legal entity. There is, therefore, no reason to suppose
that the formula does not include abortion. On the other hand, until
recently, there was no positive legal authority indicating that it did so
and there are many – including myself – who see, on the one hand, a major
moral divide between contraception and abortion as methods for the
control of pregnancy and, on the other, positive reasons for isolating
abortion from other forms of ‘treatment’ in that it is unique in always
involving the unrepresented fetus.
The matter has now been put to rest in R (on the application of Axon) v.
Secretary of State for Health,83 in which the claimant, a divorced mother of
five children who had herself undergone a termination, sought a declara-
tion to the effect that, since a doctor owed no duty of confidentiality to a
minor in respect of advice and proposed treatment related to contra-
ception, sexual health and abortion, he or she could not provide such

80
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112, [1985] 3 All ER
402. A similar situation has been reached in Scotland by way of the Age of Legal Capacity
(Scotland) Act 1991, s.2(4). In fact, insofar as the 1991 Scottish Act refers to medical
‘procedures’ and the English 1969 Act to ‘treatments’, the position in the present context
is clearer in Scotland where the question of whether or not abortion is a medical treat-
ment is irrelevant. For ease of description, I am confining the remaining discussion to the
position in England and Wales.
81
This introduces another level of medical control insofar as it is the doctor who assesses
the standard of understanding and, hence, the degree of confidentiality the minor is
allowed. Nevertheless, most girls of 15 will probably satisfy the conditions laid down in
Gillick and it is likely that many of the 2500 or so terminations carried out each year on
girls aged less than fifteen are performed without parental knowledge.
82
It is of interest that 34 of the US states have statutes imposing parental involvement in
abortion decisions concerning minors, the constitutionality of which was confirmed in
Planned Parenthood of Southeastern Pennsylvania v. Casey 112 S Ct 2791 (1992). All,
however, must have a system of ‘judicial by-pass’ to which the minor can resort: Carol
Sanger, ‘Regulating Teenage Abortion in the United States’ (2004) 18 International
Journal of Law, Policy and the Family 305–18. A large proportion of recent US cases
relate to the use of this process – e.g. In re BS 74 P 3d 285 (Ariz., 2003).
83
(2006) 88 BMLR 96.
34 The troubled pregnancy

without the consent of the minor’s parents; Ms Axon also sought a
declaration that guidelines issued by the Department of Health which
failed to acknowledge this exception to the general rule were unlawful.
This claim seemed doomed from the start and was, in fact, rejected
essentially on the grounds that, to accept it would involve overturning
the House of Lords in Gillick. In anticipation of this, the claim was
amended, in the alternative, to apply to abortion only and it is this aspect
of the case which is of immediate concern to us here.
Silber J recognised the distinctive aspects of abortion to which I have
already alluded and also accepted that about one third of terminations in
England and Wales involving girls under the age of 16 were carried out
without at least one parent being informed (at [83]). In the end, however,
he fell back on Lord Fraser in Gillick, who pointed out that the medical
professional was only justified in proceeding without parental consent or
knowledge if he or she is satisfied that ‘the girl will understand his advice’,
and on Lord Scarman:84
It is not enough that she should understand the nature of the advice which is being
given; she must also have a sufficient maturity to understand what is involved.

In other words, the Gillick test is a moving test that can be adjusted so as to
apply to the precise circumstances; the more intricate or significant in the
long term is the treatment to be given, the more mature must be the minor
before she can be entrusted with her own destiny. Which does not, perhaps,
allay one’s misgivings as to the unique nature of abortion but which, never-
theless, makes perfect logic so long as Gillick represents the relevant law.85
The courts will, no doubt, be asked to intervene in the event of conflict
between parent and child when parental consent is required and is
refused. Some parents may have a passionate desire to become grand-
parents but this must be a rare source of disagreement. Religious, or other
moral, conviction is the more likely cause and, since the courts must
bow to the minor’s best interests,86 her wishes are most likely to be
followed with little argument involved. As a result, reported cases are
few and far between and I have been able to discover only one such
apposite example87 since the landmark case decided by Butler-Sloss J


84
At [1986] 1 AC 188 [1985] 3 All ER 424.
85
Ms Axon also claimed that her rights under the European Convention on Human Rights,
Article 8 were violated by the guidelines but this claim was dismissed in a lengthy
judgment which is not directly relevant to this chapter – which is not to suggest that it
does not merit careful analysis elsewhere.
86
Children Act 1989, s.1.
87
Re B (wardship: abortion) [1991] 2 FLR 426 – in which a mother opposed the termination
of her 12-year-old daughter’s pregnancy.
Voluntary and involuntary termination of pregnancy 35

in 1982.88 The pity is that contraceptive advice – not excluding absti-
nence – is so poorly followed and that under-age pregnancy is, conse-
quently, so common.

Prevention and reversal of implantation
It was proposed, with some misgiving, at the beginning of this chapter
that, for practical purposes, meaningful human life begins at the point of
implantation. Whether this be generally approved or not, it would surely
be agreed on both sides in the abortion ‘debate’ that prevention of an
unwanted pregnancy is to be preferred to its termination and that, if it has
not been prevented, its termination before the pregnant state was recog-
nised would be preferable to – or less offensive than – termination of an
established pregnancy.
Other than to illustrate this near-truism, contraception per se has no
place in a book concerned with pregnancy.89 Despite the fact that it
sparked off the massive move towards the recognition of individual pri-
vacy in the United States,90 it now has no legal connotations.91 Moral
objections, based on the inseparability of the unitive and procreative
functions of marriage, are now virtually confined to ultra-conservative
followers of Islam and Roman Catholicism;92 we can reasonably ignore
the subject in the present context. The same cannot be said, however, in
respect of the ‘grey areas’ of family planning – the interceptive and
displanting methods of contraception.
Interceptive methods – or post-coital contraception – are designed to
prevent the fertilised egg implanting in the uterine wall.93 The most
important techniques involve the insertion of an intrauterine device
(IUD) following sexual intercourse, or, more commonly, the use of
the contragestational or, popularly, ‘morning after’ pill. Somewhat


88
Re P (a minor) (1982) 80 LGR 301, [1986] 1 FLR 272 which established the concept of
the ‘mature minor’ in respect of abortion decisions; the patient was aged 15.
89
Though it may yet have a place in the abortion debate – Don Marquis, ‘Abortion and the
Beginning and End of Human Life’ (2006) 34 Journal of Law and Medical Ethics 16–25.
90
Griswold v. Connecticut (1965) 381 US 479, (1965) 85 S Ct 1678.
91
The use of a contraceptive does not, for example, invalidate consummation of a marriage:
Baxter v. Baxter [1948] AC 274. The somewhat peripheral but distinct problem of the
failed contraceptive is revisited in Chapter 4.
92
Douwe A. A. Verkuyl, ‘Two World Religions and Family Planning’ (1993) 342 Lancet
473–5. The present author believes that, insofar as contraception facilitates love-making,
it positively supports the institution of marriage.
93
Since conception has already occurred, we should, strictly, speak of contragestation
rather than contraception. Post-coital contraception is, however, a term of popular
usage.
36 The troubled pregnancy

controversially, albeit with wide medical support,94 the government
decided to allow the provision of these by the pharmacist without the
need for a doctor’s prescription;95 intuitively, while hopefully decreasing
the number of unwanted pregnancies, this seems likely to increase pro-
miscuity among young people, and it was this possibility which served to
reopen the question96 of whether emergency contraception was governed
by the Offences Against the Person Act 1861, section 58 and was, at the
same time, not covered by the Abortion Act.97
The whole subject was examined by Munby J in a truly remarkable
exposition of the history and current literature on contraception.98
Clearly, the answer to the problem lay in the interpretation of the word
‘miscarriage’. On the one hand there was academic opinion to the effect
that it involved the removal of a fertilised egg from its natural habitat
irrespective of implantation.99 On the other, numerous authorities were
quoted which contended that pregnancy began at implantation and that
there could be no ‘carriage’ – and, hence, no miscarriage – before implan-
tation.100 Munby J’s tour de force needs to be read in full; suffice it to
quote, here, that:
[S]ince the morning-after pill is used before the process of implantation has even
begun, and because it cannot make an implanted egg de-implant, the morning-
after pill cannot as a matter of law bring about a ‘miscarriage’.101


94
E.g. James Owen Drife, ‘Deregulating Emergency Contraception’ (1993) 307 British
Medical Journal 695–6.
95
Prescription Only Medicine (Human Use) Amendment (No. 3) Order 2000 (S.I. 2000/
3231).
96
Previously, the Attorney-General had said: ‘the phrase ‘‘to procure a miscarriage’’
cannot be construed to include the prevention of implantation’, 41 Official Report
(6th series) col. 239, 10 May 1983. This has been confirmed on at least two occasions
by ministers in the House of Commons (see Smeaton, n. 98 below, at [41]).
97
Amongst other things, the Abortion Act refers to an opinion as to ‘a pregnancy’.
Moreover, you cannot assess the effects of a pregnancy unless you know that the
pregnancy exists.
98
R (on the application of Smeaton on behalf of Society for the Protection of Unborn Children) v.
Secretary of State for Health and others as interested parties [2002] 2 FLR 146, (2002) 66
BMLR 59.
99
Predominantly I. J. Keown, ‘‘‘Miscarriage’’ A Medico-Legal Analysis’ [1984] Criminal
Law Review 604–14; Victor Tunkel, ‘Modern Anti-Pregnancy Techniques and the
Criminal Law’ [1974] Criminal Law Review 461–71.
100
Amongst others: I. Kennedy, ‘Legal and ethical implications of postcoital birth control’
in Treat Me Right (Oxford: Oxford University Press, 1988), chapter 3, 32–41; Andrew
Grubb, ‘Abortion Law in England: The Medicalization of a Crime’ (1990) 18 Law,
Medicine & Health Care 146–61; Mason, n. 62 above, pp. 58–61; Kenneth Norrie, ‘Post-
coital Anti-pregnancy Techniques and the Law’ in A. Allan Templeton and Douglas
Cusine (eds.), Reproductive Medicine and the Law (Edinburgh: Churchill Livingstone,
1990), chapter 2, pp. 11–17.
101
Smeaton, n. 98 above, at [18].
Voluntary and involuntary termination of pregnancy 37

And, legal considerations apart, it is suggested that, since the fate of the
unimplanted embryo is that of ‘large numbers of fertilised oocytes which
are believed to be lost during the normal menstrual cycle’,102 only those
who maintain that human inviolability begins at conception need to have
moral qualms as to the process. From every aspect, prevention of implan-
tation seems preferable to abortion of the established fetus; on this view, it
would be morally retrograde to prohibit the practice.103
The same cannot be said for displanting methods which are designed to
remove any potential embryo104 that may have established its natural
habitat; in present circumstances, this involves some mechanical process
such as the euphemistically termed ‘menstrual extraction’ or the insertion
of an intrauterine device. Since this involves an implanted embryo, it lies
clearly within the concept of an abortion and, accordingly, is subject to
the Offences Against the Person Act. Importantly in practical terms, it
will be seen that the IUD can be used as above, to prevent implantation or
to displant a pregnancy; the timing of its use is, therefore critical in respect
of the law.
This is well shown in R v. Dhingra which is the most apposite United
Kingdom case to date.105 In that case, a doctor inserted an IUD into his
secretary, according to the newspaper report, 11 days after they had had
intercourse – which happened to be 17 days into her menstrual cycle. In
the light of the evidence available to him, Wright J, having concluded that
a woman could not be said to be pregnant until the fertilised ovum was
implanted in the uterine wall – and that this could not occur, at the
earliest, until the twentieth day of a normal 28 day cycle – withdrew the
case from the jury on the grounds that implantation could not have
occurred during the time available.
While this may clarify the law in a general sense, it is obvious that it is
very difficult to put into practice because of the variability of a biological
process. Munby J, for example, put the time between intercourse and
meeting of sperm and egg at anything from a matter of hours to six days;
the resulting embryo enters the uterus between four and six days after
fertilisation which is, itself, a lengthy process; and implantation is a


102
J. O. Drife quoted, ibid., at [133]. And, more precisely, ‘Fewer than 15% of fertilised
eggs will result in a birth’ (P. Braude quoted, ibid., at [129]).
103
The relatively draconian Women’s Health and Human Life Protection Act 2006 of
South Dakota (n. 73 above) still allows for pre-implantaion contraception. It also seems
to admit of displanting methods involving the early embryo (s.3).
104
Which distinguishes the process from a medical abortion using antiprogesterones, the
function of which is to displant an established pregnancy.
105
R v. Dhingra (1991) Daily Telegraph, 25 January, otherwise unreported. The case is,
however, considered at length in Smeaton.
38 The troubled pregnancy

process extending from the eighth to the eleventh day after commencing
fertilisation.106 In short, it would be very difficult to prove an established
pregnancy in any but a very obvious case.107
The rather similar case of R v. Price (Herbert)108 might well have
provided such an instance. Here, the doctor inserted an IUD into a
woman who was ten weeks pregnant. However, it raises the other essen-
tial element if disimplantment is to be considered a criminal act – that an
offence under section 58 is one of intent. Dr Price maintained that he did
not believe the patient was pregnant and could not, therefore, have
intended to procure her miscarriage. He was, in fact, convicted but this
was quashed on appeal due to a misdirection as to the weight to be placed
on the conflicting uncorroborated evidence of the patient – in effect, an
accomplice. It is interesting to speculate what would have happened had
Dr Dhingra gone to trial, for an offence is possible under section 58
‘whether the woman be or not be with child’. One fancies that, again, it
would have been, and always would be, extremely difficult to prove intent
in such cases but, for reasons already given, one can also doubt the
desirability of their successful prosecution. The second difficulty, as we
have also seen, is that it is currently impossible to harmonise the use of an
IUD or of menstrual extraction with the Abortion Act and its associated
regulations as they stand.

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