Select Committee on Science and Technology Written Evidence

Memorandum 5

Submission from Professor Sally Sheldon, Kent Law School


  The Abortion Act (1967) was the product of a very specific period in time. In this response to the Committee's Inquiry, I offer evidence of significant shifts in the legal and medical context over the last forty years, which render the provisions of the 1967 Act anomalous and anachronistic. I suggest that the Abortion Act's requirement for two doctors' signatures is extremely difficult to reconcile with the recognition of patient autonomy as it has evolved in other areas of law. I also note some specific problems with s.4 of the Abortion Act, relating to conscientious objection. I end with a brief comment on the Inquiry's focus on research and evidence.


  2.1.  It has been suggested that, with the exception of a small number of extremists, there is broad agreement that while fetal life deserves respect, its protection cannot take priority over the rights of the pregnant woman.[2] 2 Legal developments since 1967 have made it abundantly clear that, with the glaring exception of the regulation of abortion, this correctly captures the position at English common law and under the Human Rights Act (1998). Namely, the fetus is not a legal person, and its interests cannot trump those of the pregnant woman.

  2.2  Recent years have witnessed a widely applauded shift in medical practice. The old attitude of "doctor knows best" paternalism has been increasingly replaced by recognition of patient autonomy. This shift has been recognised in the legal principles regulating medical practice. Thus the importance of autonomy in medical decision-making has been recognised,[3] 3 young people have been accorded greater rights to decide on their own medical treatment[4]4 and the courts have emphasised that it is not sufficient for doctors merely to accord with practices accepted by their peers if they are not to fall foul of the law of negligence. Rather their actions must be objectively justifiable and capable of "withstanding logical analysis".[5]5

  2.3  Central to this changing medical and legal culture has been an emphatic endorsement of the principle that adult patients must have control over their own medical treatment. Our most senior judges have noted that:

    [A] medical practitioner must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not given ... whether those instructions are rational or irrational.[6] 6

    [T]he existence of the patient's right to make his own decision, which may be seen as a basic human right, (is) protected by the common law.[7] 7

    [I]f the patient is capable of making a decision on whether to permit treatment ... his choice must be obeyed even if on any objective view it is contrary to his best interests.[8] 8

  2.4  Pregnant women have not been treated as an exception to this rule. Rather, in accordance with these general principles, the duty to respect a woman's autonomy in pregnancy and childbirth has been frequently reiterated in English law. Like a competent male patient, a competent female patient cannot be forced to undergo unwanted medical treatment, even where her life—or that of a late term, viable foetus—depends upon it. A competent adult woman's right to refuse a caesarean section, even if that decision would inevitably result in the death of her fetus, is absolute.[9] 9 As the Court of Appeal puts it:

    [P]regnancy ... does not diminish (a woman's) entitlement to decide whether or not to undergo medical treatment ... Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant.[10] 10

  2.5  This refusal to treat pregnant women as an exception to the rule that we must respect the autonomy of competent patients relies on legal developments since the 1967 Act came into effect. If this was in any doubt in 1967, it has been clearly established (and frequently reiterated since) that the foetus is not a legal person. It "cannot, in English law ... have any right of its own at least until it is born and has a separate existence from the mother".[11]11 This is likewise the position under the Human Rights Act (1998). While Article 2 of the European Convention states that, "everyone's right to life shall be protected by law", the European Court of Human Rights has repeatedly refused to accept an understanding which would include the fetus as enjoying a "right to life". As the European Commission of Human Rights has noted:

    The "life" of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If article 2 were held to cover the foetus and its protection under this article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the "unborn life" of the foetus would be regarded as being of a higher value than the life of the pregnant woman.[12] 12

  This reasoning has recently been confirmed in Vo v France.[13] 13 As a Court of Appeal judge has summarised: "on its true construction Article 2 is apt only to apply to persons already born and cannot apply to a foetus".[14]14

  2.6  This approach has significant merits, in providing legal consistency, suggesting a clear "bright line" rule for health professionals and avoiding the worst excesses of some other jurisdictions. Unlike in the USA, pregnant women in the UK have not been criminalized for drinking, smoking or taking drugs during pregnancy. Neither can they be made civilly liable for these activities.[15] 15 Likewise, the courts have refused to accept that a fetus can be made a "ward of court" where this would involve restricting the freedom of action of the pregnant woman.[16] 16

  2.7  In this legal context, significantly changed since 1967, the severe constraints placed on women's reproductive autonomy in termination decisions stand as an anomalous exception to these seismic shifts in medical practice and the legal principles which regulate it. If the common law principle of self-determination requires an individual's choice about her medical treatment to be respected even where her decision will end the life of a 36-week-old fetus, it is entirely illogical to subject pregnant women who wish to terminate pregnancies (including those of much shorter gestation) to the stringent qualifying conditions of the Abortion Act 1967. Further, it should be noted here that allowing liberal access to abortion does not mean devaluing the importance of fetal life, just as recognising patient autonomy to refuse life-saving treatment does not involve devaluing the importance of human life.

  2.8  On the basis of the above, the requirement that women should only be allowed to access abortion services after securing two doctors' signatures stands as an anachronistic remnant of a previous age and is highly inconsistent with other principles of English law. Where other provisions of the Abortion Act (such as those limiting where abortions may be performed and who may perform them) are not dictated exclusively by the requirements of patient safety and good medical practice, they should similarly be reformed.


  3.1  Given the strong moral feelings raised by abortion, the framers of the 1967 Act saw fit to include in it a right of conscientious objection, available to anyone who might be called on to participate in any treatment performed under the Act.[17] 17 However, a woman has no way of knowing in advance whether her own GP is a conscientious objector and this may cause her both delay and distress in an attempt to access abortion services. As no data is collected on the exercise of the right of conscientious objection, it is impossible to know the extent of this problem.

  3.2  When abortion was discussed in the context of the debates preceding the introduction of the Human Fertilisation and Embryology Act (1990), it was proposed that those who wished to exercise a right to conscientious objection should be required to register on a list which would be available for women to consult before approaching a GP. This amendment was rejected by Parliament on the basis that it might lead to discrimination against conscientious objectors. Further, I would suggest that ensuring that all women are aware of the existence of such a list and able to access it would have been likely to pose considerable logistical difficulties.

  3.3  A better solution would be to make clear that those who wish to exercise their right to conscientious objection have a legal duty to refer a woman seeking termination to another doctor who does not share those objections. Whether or not such a duty currently exists is unclear, with judicial disagreement on the issue of whether the right not to "participate in any treatment" absolves a doctor of the duty to certify the need for an abortion by signing the relevant paperwork.[18] 18 Uncertainty also exists regarding whether a duty to refer a woman already exists under GPs' terms of service. Leaving women and doctors in a position where the relevant duty is unclear is wrong and may well yet result in litigation in the future.

  3.4  Therefore, if the right of conscientious objection is to be retained in a reformed Abortion Act, it should be made clear that this does not absolve a doctor from his or her duty to refer a woman seeking termination services, either directly to a service provider or to someone else able and willing to make such a referral.


  4.1.  Finally, I note that this Committee has chosen to limit the focus of this Inquiry to evidence regarding new developments concerning the Abortion Act (1967). As such, I have sought to limit my own contribution to an exposition of the legal developments which have taken place since the Abortion Act was introduced, and problems which have become clear since its introduction, which render it significantly out of step with legal principle and medical practice.

  4.2  I would, however, invite the Committee to keep in mind that it is virtually impossible to collect evidence for some aspects of the harm which may be done by the current regulatory regime. Notably, while reliable data are gathered on the number of terminations performed each year, we have no data regarding how many women are refused terminations, and only limited insight into how the hurdles faced in obtaining a legal abortion may be hampering and delaying women in their attempts to obtain an abortion.[19] 19 Likewise, to the best of my knowledge, there are no data which show how frequently those exercising their right to conscientious objection are simply refusing to refer women for abortion services or to a colleague who will do so. Clearly, the fact that these data do not exist cannot be taken as establishing that there is no problem and, in any case, the aim of good regulation should be to remove the basis for such problems to occur in the future.

August 2007

2   R Dworkin (1993) Life's Dominion: an Argument about Abortion and Euthanasia (London: Harper Collins). Back

3   For example, in the provisions of the Mental Capacity Act (2004). Back

4   Gillick v west Norfolk and Wisbech AHA [1985] 2 WLR 413; R (on the application of Axon) v Secretary of State for Health [2006] EWHC 37 (Admin). Back

5   Bolitho v City and Hackney HA [1997] 4 All ER 771 (HL). Back

6   Thomas Bingham M.R., Airedale N.H.S. Trust v Bland [1993] AC 789 at 808. Back

7   Lord Scarman, Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 All ER 643 at 649. Back

8   Lord Mustill, Airedale N.H.S. Trust v Bland [1993] AC 789 at 891. Back

9   St. George's Healthcare N.H.S. Trust v S [1998] 3 WLR 936, Re MB (1997) 38 BMLR 175 (CA). Back

10   St. George's Healthcare N.H.S. Trust, ibid, at 957 Back

11   Sir George Baker P, Paton v Trustees of the BPAS [1979] QB 276 at 279; affirmed in Re F (in utero) [1988] Fam. 122; Burton v Islington HA [1993] QB 204; Attorney General's Reference (No. 3 of 1994) [1998] AC 245. Back

12   Paton v. United Kingdom (1980) 3 E.H.R.R. 408 at 415. Back

13   Vo v. France (2004) ECHR, App. No.53924/00. Back

14   Balcombe L.J., Re F (in utero) [1988] Fam. 122 at 142. Back

15   S.1(1), Congenital Disability (Civil) Liability Act (1976). Under s.2, an exception is made for injury occasioned via negligent driving. Back

16   Re F (in utero) [1988] Fam. 122. Back

17   S4, Abortion Act (1967). There is no right of conscientious objection in the case of emergency, s4(2). Back

18   See the disagreement on this point between Lord Keith and Stocker LJ in the one case brought in the English courts regarding the conscientious objection provision in the Abortion Act: Janaway v Salford AHA [1989] AC 537. Back

19   See, however, Roger Ingham, Ellie Lee, Steve Clements, and Nicole Stone, Second-Trimester Abortions in England and Wales, Back

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