Sex Selection Terminations of Pregnancy in England, Wales and Scotland

[Pjen]

There is an interesting philosophical, political and legal debate occurring in the UK currently.

UK Law allows TOP under the Abortion Act 1967 as amended in the following manner:

Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
[F1(a)that the pregnancy has not exceeded its twenty-fourth week 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; …

In half a century of application it has been generally accepted that if the woman has a high risk of becoming depressed because of the pregnancy, then this is grounds for making a TOP legal. Very few cavil at this except for strident anti-abortionists- who make no suggestion that this interpretation of the law is incorrect- merely that it is morally wrong to terminate such a pregnancy, or indeed any pregnancy.

Doctors are now under pressure to terminate pregnancies following sex determination-usually because it is a female, not male, foetus. This is more common in families from the India sub-continent and from the Middle East and North Africa.

Initially it was assumed by Prosecutors and Politicians that TOP for gender was illegal. Several cases were referred for prosecution and the Crown Prosecution Service decided that prosecution was not in the public interest. This was seen by many as effectively legalising such terminations in cases where the woman would be at risk of serious depression because of the social position she was in because of the gender of the child.

Today the Government issued a ‘statement’ that such TOPs were illegal and is encouraging the General Medical Council, (the registration body for doctors) to proceed against doctors who allow TOPs on grounds of gender.

To me, the issuing of a statement by a Government Minister affects neither the letter nor interpretation of the law. The GMC is unlikely to change its procedures as one of its decision criteria is that for any practice to be seen as unprofessional, it must be so far off beam that no reasonable practitioner would act in such a manner; as doctors do allow this and have done so for some time, this gives some protection to others from action over their medical registration.

It seems to me that under Common Law, TOP for Gender is now clearly legal, but that the government wishes it was not so. They know that trying to legislate (there is plenty of parliamentary time) would open a whole can of worms with no certainty of conclusion, so their only response is to issue a statement and to pretend that in some way that alters the law and the way it must be interpreted. This is an interesting doctrine.

[Lord_Feldon]

@Pjen

Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
[F1(a)that the pregnancy has not exceeded its twenty-fourth week 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; …

Having an abortion is safer than continuing a pregnancy until birth, so doesn’t this really just allow abortion on demand? I don’t see how not wanting a baby of a particular sex would change things. The law doesn’t seem to make an abortion illegal if the woman has a troubling reason for the abortion in addition to the fact that the abortion is safer.

[Pjen]

@Lord_Feldon

Having an abortion is safer than continuing a pregnancy until birth, so doesn’t this really just allow abortion on demand? I don’t see how not wanting a baby of a particular sex would change things. The law doesn’t seem to make an abortion illegal if the woman has a troubling reason for the abortion in addition to the fact that the abortion is safer.

Many more liberal doctors use that argument, but as with gender selection it has never been tested in court.

It is not abortion on demand as it relies heavily on the agreement of two doctors and having a resistant GP or a local health care system that gently opposes TOPs leads to areas where it is quite difficult to get a TOP.

[UDS]

UK abortion law is somewhat hypocritical. In general, an abortion cannot proceed unless two doctors certify that continuing the pregnancy involves greater risk of injury to the mother than terminating it. Reading that might suggest that abortions in the UK are mainly carried out for medical reasons. In fact this is not so. A woman’s reason for wanting an abortion is irrelevant. Regardless of her reasons for wanting it, the abortion is legal if two doctors certify that continuing the pregnancy involves greater risk of injury to the mother than terminating it. And since, as Lord Feldon points out, the morbidity of pregnancy exceeds the morbidity of abortion, it is always possible to certify this.

The net result is that the UK has abortion on demand up to 24 weeks. A substantially content-free ritual has to be performed before the abortion can take place, but that is not a serious barrier.

Consistent with the view that the UK has an abortion-on-demand regime, the country has a strikingly high abortion rate - 17 per 1,000 women aged 15-44 per year, as compared with 7.8 in Germany, 10.4 in the Netherlands, 14.3 in Denmark. This isn’t really consistent with pjen’s suggestion that it in some places “it is quite difficult” to get an abortion. On the figures, there can’t be too many such places - or, if there are, it is easy to get an abortion in immediately adjacent places.

To put it another way, more than one UK pregnancy in five ends in abortion. If that were really for medical reasons, it would suggest standards of maternal and perinatal care that would disgrace a third-world country. There would be the most enormous scandal, enquiries, Royal Commissions . . . But none of this happens, because everyone understands that, while each abortion may be backed by a certificate saying that the abortion is safer than continuing the pregnancy, in most cases that has nothing to do with the reason the woman seeks the abortion, and in most cases there is no unusual medical risk associated with the pregnancy. There are enough doctors who have a philosophical commitment to a woman’s right to choose, and the medical standard to be certified is so low, that almost every woman who needs such a certificate in order to get an abortion can readily obtain one - if not in this clinic, then in that; if not in this suburb, then in the city centre.

This medicalisation of the question was something that had to be accepted in order to get the relevant legislation through parliament in 1967, so that there could be a colourable pretence that this would’t be an abortion-on-demand regime. Now, though, the ritual is little more than a historical relic. Certificates are frequently countersigned by doctors who have not examined the patient, and by doctors who have apparently irrelevant specialisations, like anaesthesiology. Certificates are signed in blank, with the patient’s name to be filled in later.

I think pjen is mistaken in suggesting that the medical justification for the abortion is often “a high risk of becoming depressed”. The legislation doesn’t require the certificate to specify any particular risk, just to certify that there is a risk. The greater morbidity statistically associated with pregnancy than with childbirth provides a foundation for such a certificate. As pjen says, the view that that is enough to support the certificate has never been tested in court - because no doctor has ever been prosecuted for performing an abortion in reliance on such a certificate. And the fact that they have never been prosecuted is telling in itself, I suggest, given the fact that the overwhelming majority of abortions are carried out in reliance on such certificates.

I also think it’s a bit rich for the government to take the view that certain abortions are illegal, and then to encourage the GMC to take disciplinary proceedings against doctors. If the abortions are illegal that’s a crime, and a serious one; it’s a police matter, not a professional disciplinary matter, and the authorities should be prosecuting. The fact that they aren’t strongly suggests that the government’s claim that the abortions are illegal is disingenuous. They’re not illegal. Doctors are not obliged (and arguably are not entitled) to withhold a certificate because they disapprove of the woman’s reason for seeking an abortion. If the government thinks that sex-selective abortion should be illegal, it needs to legislate to that effect.

What it really comes down to is this. When it comes down to abortion, do we believe in a woman’s right to choose? Or do we think her desire for an abortion has to be validated by the approval of someone else before she can be allowed to act on it? The UK’s practice effectively endorses the right-to-choose position, with a vestigial fig-leaf from 1967 inserted to suggest, wrongly, that the choice is made on medical grounds. If you believe in the right to choose, then sex-selective abortions are a woman’s right. (Unless, of course, you only believe in the right of western, white women to choose.)

[Pjen]

@UDS

UK abortion law is somewhat hypocritical. In general, an abortion cannot proceed unless two doctors certify that continuing the pregnancy involves greater risk of injury to the mother than terminating it. Reading that might suggest that abortions in the UK are mainly carried out for medical reasons. In fact this is not so. A woman’s reason for wanting an abortion is irrelevant. Regardless of her reasons for wanting it, the abortion is legal if two doctors certify that continuing the pregnancy involves greater risk of injury to the mother than terminating it. And since, as Lord Feldon points out, the morbidity of pregnancy exceeds the morbidity of abortion, it is always possible to certify this.

The net result is that the UK has abortion on demand up to 24 weeks. A substantially content-free ritual has to be performed before the abortion can take place, but that is not a serious barrier.

Consistent with the view that the UK has an abortion-on-demand regime, the country has a strikingly high abortion rate - 17 per 1,000 women aged 15-44 per year, as compared with 7.8 in Germany, 10.4 in the Netherlands, 14.3 in Denmark. This isn’t really consistent with pjen’s suggestion that it in some places “it is quite difficult” to get an abortion. On the figures, there can’t be too many such places - or, if there are, it is easy to get an abortion in immediately adjacent places.

To put it another way, more than one UK pregnancy in five ends in abortion. If that were really for medical reasons, it would suggest standards of maternal and perinatal care that would disgrace a third-world country. There would be the most enormous scandal, enquiries, Royal Commissions . . . But none of this happens, because everyone understands that, while each abortion may be backed by a certificate saying that the abortion is safer than continuing the pregnancy, in most cases that has nothing to do with the reason the woman seeks the abortion, and in most cases there is no unusual medical risk associated with the pregnancy. There are enough doctors who have a philosophical commitment to a woman’s right to choose, and the medical standard to be certified is so low, that almost every woman who needs such a certificate in order to get an abortion can readily obtain one - if not in this clinic, then in that; if not in this suburb, then in the city centre.

This medicalisation of the question was something that had to be accepted in order to get the relevant legislation through parliament in 1967, so that there could be a colourable pretence that this would’t be an abortion-on-demand regime. Now, though, the ritual is little more than a historical relic. Certificates are frequently countersigned by doctors who have not examined the patient, and by doctors who have apparently irrelevant specialisations, like anaesthesiology. Certificates are signed in blank, with the patient’s name to be filled in later.

I think pjen is mistaken in suggesting that the medical justification for the abortion is often “a high risk of becoming depressed”. The legislation doesn’t require the certificate to specify any particular risk, just to certify that there is a risk. The greater morbidity statistically associated with pregnancy than with childbirth provides a foundation for such a certificate. As pjen says, the view that that is enough to support the certificate has never been tested in court - because no doctor has ever been prosecuted for performing an abortion in reliance on such a certificate. And the fact that they have never been prosecuted is telling in itself, I suggest, given the fact that the overwhelming majority of abortions are carried out in reliance on such certificates.

I also think it’s a bit rich for the government to take the view that certain abortions are illegal, and then to encourage the GMC to take disciplinary proceedings against doctors. If the abortions are illegal that’s a crime, and a serious one; it’s a police matter, not a professional disciplinary matter, and the authorities should be prosecuting. The fact that they aren’t strongly suggests that the government’s claim that the abortions are illegal is disingenuous. They’re not illegal. Doctors are not obliged (and arguably are not entitled) to withhold a certificate because they disapprove of the woman’s reason for seeking an abortion. If the government thinks that sex-selective abortion should be illegal, it needs to legislate to that effect.

What it really comes down to is this. When it comes down to abortion, do we believe in a woman’s right to choose? Or do we think her desire for an abortion has to be validated by the approval of someone else before she can be allowed to act on it? The UK’s practice effectively endorses the right-to-choose position, with a vestigial fig-leaf from 1967 inserted to suggest, wrongly, that the choice is made on medical grounds. If you believe in the right to choose, then sex-selective abortions are a woman’s right. (Unless, of course, you only believe in the right of western, white women to choose.)

I broadly agree with your analysis but with a couple of caveats. In rural areas it can be difficult to access TOP if your GP is opposed. Doctors have an absolute right to refuse to assess someone for a TOP if they have Moral Beliefs that contradict it. They are required to direct the person to a doctor or service that will do this. This is often a charity/company that will charge rather than the TOP being done under the National Health Service- and NHS TOPs tend to have longer waiting lists than other clinics.

A much more worrying fact is that it is totally legal to abort a foetus if it is likely to have a disability or illness right up to the delivery- a quirk in the law which has been used to abort a foetus which merely had a hare lip.

[John_Mace]

Can you clarify what it is you wish to debate?

[Malacandra]

@UDS

To put it another way, more than one UK pregnancy in five ends in abortion.

Talk about your “safe, legal and rare”. Oh well, two out of three ain’t bad, so Meatloaf assures us.

[Pjen]

@John_Mace

Can you clarify what it is you wish to debate?

From OP:

“It seems to me that under Common Law, TOP for Gender is now clearly legal, but that the government wishes it was not so. They know that trying to legislate (there is plenty of parliamentary time) would open a whole can of worms with no certainty of conclusion, so their only response is to issue a statement and to pretend that in some way that alters the law and the way it must be interpreted. This is an interesting doctrine.”

[APB]

@Pjen

Initially it was assumed by Prosecutors and Politicians that TOP for gender was illegal. Several cases were referred for prosecution and the Crown Prosecution Service decided that prosecution was not in the public interest. This was seen by many as effectively legalising such terminations in cases where the woman would be at risk of serious depression because of the social position she was in because of the gender of the child.

But that’s emphatically not how the Crown Prosecution Service saw the matter. The assessment by its Deputy Chief Crown Prosecutor for London, which provided the substance of its statement last September, explicitly explained that, ‘The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender’ and that its decision not to prosecute in the specific cases in question was ‘not a policy decision of general application’. The government is now just reiterating this.

[Pjen]

@APB

But that’s emphatically not how the Crown Prosecution Service saw the matter. The assessment by its Deputy Chief Crown Prosecutor for London, which provided the substance of its statement last September, explicitly explained that, ‘The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender’ and that its decision not to prosecute in the specific cases in question was ‘not a policy decision of general application’. The government is now just reiterating this.

Except that the Act does provide for TOP if:

" … two registered medical practitioners are of the opinion, formed in good faith—
[F1(a)that the pregnancy has not exceeded its twenty-fourth week 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;"

If a woman then states to the Doctors that her mental health would be affected by the reaction of her husband, kin and others to her producing a female child, and the Doctors form an opinion in good faith that she would be likely to suffer injury to her mental health because of this, then the situation would seem to be covered.

And this is why the prosecutions were not proceeded with - the defence was offered and the charges were dropped.

Edited to add that the DPP is senior to

Gender abortion not illegal, says top prosecutor: Starmer says nothing in law...

“The Director of Public Prosecutions yesterday appeared to back abortions based on gender.
Keir Starmer declared that nothing in abortion law prevented a woman from terminating her pregnancy because she did not want a girl.
He said abortion was only criminal if it was carried out without the approval of two doctors who said ‘in good faith’ that termination was necessary to protect the woman’s health.
And he added that prosecutors would face ‘real difficulties’ if they tried to bring charges against doctors for failing to assess the health of their patients properly.
In many cases doctors approve abortions without even meeting their patient, Mr Starmer said.
He added that NHS inquiries last year discovered GPs were signing batches of forms giving approval to abortions in advance of the patients arriving.
The statement from the DPP appeared to endorse the claims of pro-abortion campaigners that abortion on grounds of gender is fully lawful.”

Edited to add that the DPP is senior to the Deputy Chief Crown Prosecutor for London. Surely the Government should follow the lead of the DPP, not one of his juniors.

[Really_Not_All_That_Bright]

Asking the body that regulates physicians to voluntarily discipline its members is a far cry from criminalization.

[Pjen]

@Really_Not_All_That_Bright

Asking the body that regulates physicians to voluntarily discipline its members is a far cry from criminalization.

Where was criminalisation mentioned as being ONLY to do with referral to the GMC. The government has suggested that doctors who perform TOP for gender are acting illegally. The DPP disagrees. The GMC referral is a different matter and the government only has a distant sanction of the GMC- they cannot order any action by them.

[Really_Not_All_That_Bright]

What action has the government taken other than referring the matter to the GMC? You didn’t mention any in the OP and didn’t cite anything.

[CurtC]

@Malacandra

Talk about your “safe, legal and rare”. Oh well, two out of three ain’t bad, so Meatloaf assures us.

Well, we have the two important ones covered anyway.

Besides, just the fact that 20% of pregnancies end in abortion doesn’t really address how rare it is. Maybe total pregnancies are relatively rare?

The goal is to reduce the number of unwanted pregnancies that end by birth to be zero. I’d rather unwanted pregnancies themselves be zero, but given that there will be some, ending with abortion is better than ending with a birth.

[Pjen]

@Really_Not_All_That_Bright

What action has the government taken other than referring the matter to the GMC? You didn’t mention any in the OP and didn’t cite anything.

It has announced ex cathedra that TOP on grounds of gender is illegal. Yet their DPP disagrees with them. They are politicking beyond the law.

[UDS]

I think possibly we need to make a distinction between (a) the legal situation of the doctor who carries out the abortion, and (b) the legal position of the doctor who signs the certificate.

Carrying out an abortion in breach of the requirements of the Act is a serious criminal offence. However the doctor who carries out the abortion seems to me to have a complete defence; a certificate has been given stating that continuation of the pregnancy presents a greater risk of injury to the mother than termination of the pregnancy, and that’s all the Act requires. Once he has satisfied himself that a certificate has been given, the Act does not require him to investigate the grounds on which it was given, or to ask himself whether it ought to have been given. And, since legislation dealing with criminal offences is interpreted very much in favour of the defendant, I don’t see that he can be prosecuted successfully for not looking behind the certificate.

As for the doctor who signed the certificate, he will point out (a) that the assessment of risk is a clinical judgment for him; the Act does not stipulate what is a sufficient degree of risk of injury to justify a certificate, and (b) even if the risk of injury is inadequate to justify the certificate, the Act does not make it a criminal offence to sign a certificate for an inadequate reason. I think this is what lies behind the government’s call for the GMC to act; if doctors are signing certificates on the basis of risk of injury inherent in the statistical morbidity of pregnancy, whether that’s good enough is a matter of professional standards rather than criminal liability.

I don’t know whether the GMC has issued any professional guidance on what clinical standard should influence a doctor’s decision to certify risk of injury from continuation of pregnancy; I’m guessing not. At the very least, we might expect the GMC to have views on the practice of doctors signing certificates in relation to patients they have not examined, or doctors signing certificates in blank on the basis that the risk of continuing pregnancy invariably exceeds the risk of termination, and it is inconceivable that there could be any patient of whom this were not true.

Still, it would be reasonable for the GMC to point out that abortion is not often a medical decision, and the attempt to medicalise all abortion decisions is basically a cop-out; if society wants to take the view that abortion for sex-selection (or abortion for any other social reason) is unacceptable, that’s not really a medical position. It’s unreasonable for them to expect the GMC to enforce that. Legislation about abortion should explicitly say that.

[Hector_St_Clare]

@CurtC

Well, we have the two important ones covered anyway.

Besides, just the fact that 20% of pregnancies end in abortion doesn’t really address how rare it is. Maybe total pregnancies are relatively rare?

The goal is to reduce the number of unwanted pregnancies that end by birth to be zero. I’d rather unwanted pregnancies themselves be zero, but given that there will be some, ending with abortion is better than ending with a birth.

Disgusting. just shows again, I suppose, that we live in different moral universes.

I want to reduce the number of (elective) abortions to zero. I don’t especially care that much about reducing the number if unwanted births. That you would actually say 'it’s better for an unwanted pregnancy to end in abortion rather than birth ’ shows that you folks aren’t really ‘pro choice’, you are in fact pro abortion. If I wanted a perfect mouthpiece to satirize the culture of death, I couldn’t pick a much better example than you .

[Pjen]

@Hector_St_Clare

Disgusting. just shows again, I suppose, that we live in different moral universes.

I want to reduce the number of (elective) abortions to zero. I don’t especially care that much about reducing the number if unwanted births. That you would actually say 'it’s better for an unwanted pregnancy to end in abortion rather than birth ’ shows that you folks aren’t really ‘pro choice’, you are in fact pro abortion. If I wanted a perfect mouthpiece to satirize the culture of death, I couldn’t pick a much better example than you .

Please do not turn this into a pro and con debate. I am interested in the legalities and political niceties of people dancing around a subject. If you want a discussion on the moral issue, please start a thread of your own.

[Bryan_Ekers]

Personally, I’m okay with not stopping a culture bent on self-extermination.

[smiling_bandit]

@Pjen

Please do not turn this into a pro and con debate. I am interested in the legalities and political niceties of people dancing around a subject. If you want a discussion on the moral issue, please start a thread of your own.

OK, but given that, what problem could you (or anyone) possibly have with it? If there’s no moral stance whatsoever, when who cares if people are squeamish or not? Yes, it’s not technically within the letter of the law - but why should that matter now when the government has in practice ignored the law (moral law, or written law as the case may be) for decades?

I repeat John Mace’s request: What is it, exactly, that you wish to debate? Whether or not politicians should pretend they care about it? Whether the public attitude has become monstrous? What?