Submission from the Department of Health
1. This memorandum sets out the Government's
position on abortion and highlights the action the Department
of Health is undertaking to improve reproductive health. The memorandum
also sets out the evidence to support current policy on abortion,
2. The current law governing abortions (the
Abortion Act 1967) in England, Scotland and Wales was introduced
by a private member's bill brought by David Steel MP.
3. The introduction of this legislation
was prompted by a number of factors including a strong lobby by
the women's movement and political will to safeguard women by
reducing the number of illegal abortions being carried out and
the number of resulting deaths. The (then) Council of the Royal
College of Obstetricians and Gynaecologists (RCOG) also published
a report calling for a number of measures to safeguard women and
to clarify the existing law.
4. In 1967 and 1990, Parliament decided,
on a free vote, that abortions may lawfully be carried out in
the circumstances specified in the Abortion Act. It is accepted
Parliamentary practice that proposals for changes in the law on
abortion have come from back-bench members and successive governments
have taken the view that such matters should be decided by members
voting freely in accordance with their own conscience. The Government
does however have a duty to see that the provisions of the Act
are properly applied until, and unless, Parliament chooses to
further amend that law.
5. The Abortion Act is a reserved issue.
However, the provision of services is a devolved matter. The Department
of Health deals with the policy on abortion services in England
only but processes the abortion notification forms, and publishes
the statistics, for abortions performed in England and Wales.
6. The Offences Against the Person Act 1861
(only applies in England and Wales) makes it an offence to intentionally
procure a miscarriage, including for a woman to procure her own
7. The Infant Life (Preservation) Act 1929
(again only applies in England and Wales) makes it an offence
to intentionally kill a child, capable of being born alive, before
it has a life independent of its mother. It is a defence to show
that the death was caused in good faith for the purpose only of
preserving the life of the mother. The Act stipulates that if
a woman has been pregnant for 28 weeks that shall be proof that
the child was capable of being born alive. But, if medical evidence
is that the foetus would be capable of being born alive, then
destroying the foetus could still be an offence under the 1929
Act, regardless of the age of the foetus. The Act says 28 weeks
is the age above which there is prime facie proof that the child
was capable of being born alive and therefore no further medical
evidence on the issue would be needed.
8. The Abortion Act 1967 creates exceptions
to the offences of procuring a miscarriage and child destruction.
This Act makes an abortion legal where the pregnancy is terminated
by a registered medical practitioner and where two registered
medical practitioners agree that the grounds specified in the
Act are satisfied. The legal time limit for most abortions in
Great Britain is now 24 weeks. This was reduced from 28 weeks
when the Abortion Act 1967 was amended by the Human Fertilisation
and Embryology Act 1990. However, there is no time limit where
there is a substantial risk that the child will suffer from a
serious handicap, or the pregnancy will cause grave permanent
injury to the physical or mental health of the mother, or put
her life at risk.
9. Unless performed as an emergency, the
Act states that all treatment for abortion has to take place in
an NHS hospital or a place approved by the Secretary of State.
Within the NHS, abortions have traditionally been carried out
in gynaecology wards and day care units. Since the passing of
the Act in 1967, the Department of Health has always taken the
view that outside of the NHS only independent sector hospitals
or clinics can obtain Secretary of State approval. The current
definition of an approved place is an independent sector place
registered with the Healthcare Commission under the Care Standards
Act 2000. These must be subsequently approved under the Abortion
Act by the Secretary of State for Health. All places must re-apply
for approval every four years.
10. Except where treatment is necessary
to save the life of or prevent grave permanent injury to the pregnant
woman, "no person shall be under any duty ... to participate
in any treatment authorised by this Act to which he has a conscientious
objection". It has been the case that if medical or nursing
staff have strong ethical or moral objections to abortion work
they should not be obliged to take this on. Their conscientious
objection should not be detrimental to their careers and appointments.
Further clarity on this clause was provided in a House of Lords
judgment in 1988. This found that this exemption does not extend
to giving advice, performing preparatory steps to arrange an abortion
where the request meets legal requirements and undertaking administration
connected with abortion procedures. The General Medical Council
(GMC) booklet `Good Medical Practice' states that doctors' views
about a patient's lifestyle or beliefs must not prejudice the
treatment they provide or arrange. If they feel their beliefs
might affect the treatment, this must be explained to the patient
who should be told of their right to see another doctor.
11. The Abortion Regulations make provision
for the certification of the relevant opinion of the medical practitioners
referred to in the Act and the giving of notice of abortions to
the Chief Medical Officer (CMO). Practitioners are required to
send to the CMO a notice of each termination on Form HSA4. In
England, the Regulations require that Form HSA4 be submitted within
14 days of the procedure. This notification is used by the Department
as an aid to checking that terminations are carried out within
the law. Form HSA4 requires detailed information relating to the
procedure including the names and addresses of the doctors who
certified there were grounds under the Act, gestation, method
used and place of termination. Every form is checked and monitored
by Department of Health officials, authorised by the CMO. The
Department returns around 11,000 (approximately 5%) of forms each
year due to missing information or to seek clarification on information
12. In 2006, for women resident in England
The total number of abortions was
Age-standardised abortion rate was
18.2 per 1,000 resident women aged 15-44
89% of abortions were carried out
at under 13 weeks gestation (a figure that has stayed steady over
the last 10 years); 68% were at under 10 weeks
87% of abortions were funded by the
NHS (55% of these took place in the independent sector under NHS
contract, mainly by the providers BPAS and Marie Stopes International)
70% of abortions were performed surgically
and 30% were medical abortions
1% of abortions were performed due
to the risk that the child would be born seriously handicapped
2,948 performed at 20 weeks and over
(1.5% of total performed). Of these, 1,262 were performed at 22
weeks and over (0.7% of total performed) and 136 at 24 weeks and
over (majority performed due to fetal abnormality). 149 abortions
were performed where the woman's life was at risk or to save the
13. Different methods may be used to terminate
a pregnancy, depending on duration of gestation and other circumstances
relating to the individual woman. The most common method of abortion
continues to be vacuum aspiration which was used in 64% of abortions
in 2006. However, in recent years there has been a large increase
in the use of the abortifacient drug Mifegyne (mifepristone also
known as RU486). Medical abortion accounted for about 30% of the
total in 2006. The proportion of medical abortion has more than
doubled in the last 5 years.
14. Medical abortion takes place in two
stages. First, Mifegyne is given orally in a single dose. Forty-eight
hours after the pill has been taken, a prostaglandin pessary is
inserted into the vagina. The effect of this is to cause the uterus,
already affected by the Mifegyne, to expel the pregnancy, generally
within six hours.
15. During the Committee stage of the Human
Fertilisation and Embryology Bill an amendment was passed, on
a free vote, giving the Secretary of State power to approve classes
of place (as opposed to individual places) where specified drugs
may be used to carry out abortions in whatever manner was specified
in the approval. The amendment anticipated the possibility that
drugs like Mifegyne would be fully licensed and be available in
places other than NHS hospitals or individually approved places.
It was seen as an enabling provision should experience of the
drug and the climate of opinion be right for such a move.
16. Progress is now being made to determine
a "class of place". Two hospitals are currently being
funded by the Department to run early medical abortion services
in non-traditional settings, to evaluate the effectiveness and
safety of provision in these settings. One site is within a community
hospital; the other is in a stand-alone unit within an acute hospital.
A formal evaluation is underway to assess the safety, effectiveness
and patient acceptability of providing early medical abortion
services in non-traditional settings.
17. As highlighted above, the Government's
role is to ensure that the provisions of the Act are properly
applied. Policy on abortion, particularly, ensuring early access
to services for women who have grounds for abortion under the
Act, and choice of method of procedure, has developed as part
of the wider Sexual Health and HIV Strategy (more detail on this
is at paragraph 39-45). The documents can be found at: http://www.dh.gov.uk/en/Policyandguidance/Healthandsocialcaretopics/Sexualhealth/Sexualhealthgeneralinformation/DH4002168
The scientific and medical evidence relating to
the 24-week upper time limit
(a) Developments, both in the UK and internationally
since 1990, in medical interventions and examination techniques
that may inform definitions of fetal viability;
18. In the 1980s a working party of the
RCOG, established with Department of Health encouragement and
including representatives of medical and midwifery professional
bodies, was set up to look at medical advances in light of fetuses
surviving before 28 weeks gestation. It recommended that the age
at which a fetus should be considered as viable should be changed
to 24 weeks. Their report, the report on Fetal Viability and Clinical
Practice 1985, was sent to all RCOG Fellows and Members.
19. In 1990, Parliament agreed by a decisive
majority, on a free vote, that the Abortion Act should be amended
to lower the time limit from 28 to 24 weeks gestation in line
with the clearly expressed and confirmed view of the main medical
and professional bodies.
20. Our understanding is that the position
has not changedboth the British Medical Association (BMA)
and the RCOG are not convinced there is currently a need to change
the time limits.
21. The Births and Deaths Registration Act
1953, as amended, provides for the registration of babies born
dead after 24 weeks gestation and this is described as the legal
age of viability. Guidance from the British Association of Perinatal
Medicine introduces the concept of a "threshold of viability"
as being from 22 to 26 weeks gestation. The British Medical Association's
briefing paper "Abortion time limits" (2005) highlighted
that gestational age is not the only factor that affects the possibility
of a fetus being considered viable.
22. Whilst there have been medical advances
in caring for premature babies, only a small number of babies
born at under 24 weeks gestation can survive. Data (published
in 2005) from the EPICURE study (Extremely Preterm Infantsa
population based study of study and health status), established
in 1995, shows the percentage of extremely premature babies who
survived to 6 years of age as 1% at 22 weeks, 10% at 23 weeks,
26 % at 24 weeks and 43% at 25 weeks. Survival to 6 years of age
(where disability is known) with moderate or severe disability
at those gestations is 50%, 64%, 51% and 40% respectively. The
full study can be found at http://www.nottingham.ac.uk/human-development/Epicure/epicurehome/index.html
23. The Nuffield Council on Bioethics published
a Report "Critical care decisions in fetal and neonatal medicine"
was published in 2006. One of its conclusions was that caution
is required over decisions to treat babies born up to 23 weeks,
six days of gestation as most babies born at 23 weeks die or survive
with some level of disability even if intensive care is given;
survival and discharge from intensive care for babies born between
22 and 23 weeks is rare. The full report can be found at:
24. DH has previously asked the RCOG to
look at the issue of fetal pain and review the scientific evidence.
The RCOG's report "Fetal Awareness, Report of a Working Party"(1997)
concluded that before 26 weeks gestation the nervous system has
not developed sufficiently to allow the fetus to experience pain.
The report recommended further research. This was taken forward
by the Medical Research Council and its advisory group's report
was published in 2001. The group concluded that, although there
have been some developments in research into fetal pain since
the publication of the RCOG report, there is still a need for
further research in many areas. The experience of pain in the
unborn is still poorly understood. In particular, further research
is needed to improve understanding of how the ability to feel
pain develops in the fetus and newborn child, and to provide better
ways of measuring fetal stress.
25. As there can be uncertainties surrounding
estimates of gestational age, the RCOG's report recommended that
the requirements for feticide or fetal analgesia and sedation
should be consider for abortions at 24 weeks or later. The RCOG
then issued a letter to its members in 2001 advising them that
for all abortions at 22 weeks or more, the method chosen should
ensure the fetus is born dead and to consider the instillation
of anaesthetic and / or muscle relaxant agents beforehand.
26. The issue of why women seek late abortions
was most recently considered by the Centre for Sexual Health Research
at the University of Southampton. This study was published on
17 April 2007 and found that women present late because of:
Failure to recognise the pregnancy
earlier (this can disproportionately affect teenagers or women
approaching their menopause)
Delay in seeking abortion due to
personal circumstances, including decision making
Difficulty in accessing abortion
services (not knowing where to go or not being referred promptly)
(b) whether a scientific or medical definition
of serious abnormality is required or desirable in respect of
abortion allowed beyond 24 weeks;
27. Parliament decided in 1990 that in some
circumstances abortion should be available without time limit.
Around 100 abortions take place each year at gestations beyond
24 weeks most of which are done on the grounds that "that
there is a substantial risk that if the child were born it would
suffer from such physical or mental abnormalities as to be seriously
handicapped." Parliament did not define serious handicap
in the Act. Parliament chose to leave this to the expert judgement
of the two doctors based on the merits of each individual case.
The doctors must form their own opinion about the seriousness
of the handicap the child would suffer if born, taking into account
the facts and circumstances of the case.
28. This position was recently challenged.
In December 2003, the Rev. Jepson was granted permission to bring
a judicial review of West Mercia police's decision not to prosecute
two doctors who agreed to an abortion at over 24 weeks gestation
because the fetus was diagnosed with bilateral cleft lip and palate.
The Crown Prosecution Service announced in March 2005 that the
two doctors had acted in good faith and that no prosecutions would
be brought against them.
29. The Royal College of Obstetricians and
Gynaecologists' guideline "Termination of Pregnancy for fetal
abnormality" (1996) states that if an abnormality has been
detected and two medical practitioners are of the opinion that
there are grounds for an abortion under the Abortion Act, then
the woman should be advised that she has this option.
30. Antenatal screening for Down's syndrome
is offered within a timeframe of 10 to 20 weeks and the evidence
based NICE Clinical Guideline "Antenatal Care, Routine Care
for the healthy pregnant woman" recommends offering ultrasound
screening for structural anomalies between 18 and 20 weeks. The
purpose of antenatal screening is to offer women informed choice
and women should be offered information about screening tests
as early as possible in their pregnancy. The woman needs to be
given enough information and time to help her understand the nature
of the fetal abnormality and the probable outcome of the pregnancy
in order that she can make an informed decision about the options
available to her. If a time limit, or a time limit of lower than
24 weeks, were imposed for abortions for fetal abnormality this
has implications for women who have abnormalities identified during
the 1820 week scan.
Medical, scientific and social research relevant
to the impact of suggested law reforms to first trimester abortions
(a) the relative risks of early abortion versus
pregnancy and delivery;
31. Abortion, both medical and surgical,
is a very safe procedure and complications are uncommon. However,
the RCOG guideline states that the evidence shows the risk of
complications increases the later the gestation.
32. Deaths following abortion are extremely
rare. There is about one death a year out of around 180,000 abortions.
It is a Government requirement that all maternal deaths should
be subject to confidential enquiry and all health professionals
have a duty to provide the information required.
33. Maternal deaths in the UK, including
deaths from abortions, for all women are at a rate of 53 per million
maternities. This compares to a rate of about 5 per million for
34. It is the Government's policy to reduce
numbers of unintended pregnancies and reduce the number of abortions.
We are working to achieve this through implementation of the Sexual
Health and HIV Strategy and the Teenage Pregnancy Strategy. http://www.dfes.gov.uk/teenagepregnancy
(b) the role played by the requirement for
two doctors' signatures;
35. The requirement for two doctors' signatures
was believed necessary when the 1967 Act was passed to ensure
that the provisions in the legislation were being observed and
to safeguard women.
(c) the practicalities and safety of allowing
nurses or midwives to carry out abortions or of allowing the second
stage of early medical abortions to be carried out at the patient's
36. One of the requirements of the Abortion
Act 1967, as amended, is that a pregnancy may only be terminated
by a registered medical practitioner.
37. In 1981, the Royal College of Nursing
brought a case to clarify the legal position of nurses and their
role in medical abortion. The House of Lords ruled that for medical
abortion, the practitioner is not required to perform personally
each and every action that is needed for the treatment but must
personally decide upon and initiate the process of medical induction
and take responsibility throughout (the doctor prescribes the
drugs and signs the abortion notification form).
38. The role of nurses has changed considerably
since 1967. All over the country nurses are working in new and
innovative ways in sexual and reproductive health. Many are working
in advanced and specialist clinical roles as independent practitioners
and more creative posts are being developed in the NHS to maximise
optimum use of nurses skills. There are currently around 15 Nurse
Consultant posts in the sexual health field. Nurses have a valuable
role to play in supporting women undergoing abortion. In some
areas nurses are playing a leading role in providing abortion
services. DH is working with the RCN and other professional bodies
to ensure that the nurses role continues to be developed appropriately.
39. The Government agrees that women, who
have grounds for an abortion, should be offered the choice of
an early medical abortion and that PCTs and abortion service providers
should ensure this provision exists. Currently, Mifegyne (mifepristone
also known as RU486), the abortifacient drug used in medical abortion,
is only licensed up to nine weeks gestation and then 12 weeks
gestation beyond, therefore early access is essential. To encourage
choice of procedure before nine weeks gestation, PCT's performance
in this area is being measured by the Healthcare Commission. There
has been an indicator on the percentage of NHS funded abortions
performed at under 10 weeks gestation since 2002/3. The latest
data for 2006 shows that progress is being made to increase early
access: 65% of NHS funded abortion took place at under 10 weekscompared
with 51% in 2002. Use of medical abortion has increased from 5%
in 1995 to 30% of abortions in 2006.
Evidence of long-term or acute adverse health
outcomes from abortion or from the restriction of access to abortion.
40. The safety and psychological effects
of abortion were considered by the RCOG in its updated evidence-based
guideline, "The Care of Women Requesting Induced Abortion"
(2004). In updating the guidance, the RCOG took account of the
most recent national and international evidence. The guideline
recommends that referral for further counselling should be available
for the small minority of women who experience long-term post
41. The first ever, National Strategy for
Sexual Health and HIV was published in 2001 and its' Implementation
Action Plan in 2002 (for England). The Strategy proposes a comprehensive
and holistic model for modernising sexual health and reproductive
services to provide a comprehensive range of services, shaping
services around the needs and preferences of individual patients,
responding to the needs of different populations and continuously
improving quality services.
42. One of the key aims of this Government,
as set out in the Sexual Health and Teenage Pregnancy Strategy,
is to reduce the number of unintended pregnancies and consequently
abortions, through better access to contraception.
43. The provision of good quality contraceptive
services is also essential to achieving the Public Service Agreement
target to half the number of under 18 conceptions rates by 50%
(from the Teenage Pregnancy Strategy's 1998 baseline of 46.6 conceptions
per thousand females aged 15-17) by 2010 as part of a broader
strategy to improve sexual health. Eighty percent of under 18
conceptions take place in 16 and 17 year old girls.
44. The cost benefit of contraceptives is
well established and has been estimated at £11 for every
£1 spent and it is estimated that the prevention of unplanned
pregnancy by NHS contraceptive services already saves the NHS
over £2.5 billion a year.
45. Through Choosing Health we have invested
a significant amount (£40m) to improve access to contraceptive
services (2006/07-2007/8) and in July 2006, the Government reduced
the VAT rate on contraception from 17.5% to 5%. Primary care trusts
(PCTs) completed a national questionnaire of contraceptive services.
The results were published in May 2007 and will inform the publication
of best practice guidance on reproductive healthcare by the Department
of Health and help PCTs determine how best to meet gaps in local
services. The guidance will be aimed at commissioners and providers
emphasising the need to develop strong links between abortion
and contraceptive services. From 2006/07, PCTs' performance in
this area is being measured as part of their Healthcare Commission
Annual Healthcheck. In addition, we are also examining the feasibility
of undertaking pilots to provide women with tailored contraceptive
packages following abortion. The pilots will also examine which
groups of women are most vulnerable to repeat abortion.
46. The Government's Teenage Pregnancy Strategy
is tackling the high number of unplanned pregnancies among young
women by: sending clear messages through its media campaigns on
avoiding peer pressure and the importance of using condoms when
they do become sexually active; improving the quality of sex and
relationships education; improving young people's access to contraceptive
and sexual health advice; and providing support to parents to
help them have open and honest discussions with their children
on sex and relationship issues.
47. Teenage pregnancy rates are reducing.
Between the 1998 baseline year and 2005 (the latest year for which
data are available) the under-18 conception rate has fallen by
11.8% to its lowest level for over 20 years. The under-16 conception
rate has fallen by 12.1% over the same period. We are taking steps
to ensure that a stronger focus is given to providing contraceptive
advice to young women after a birth or abortion, to avoid repeat