Memorandum 5
Submission from Professor Sally Sheldon,
Kent Law School
1. INTRODUCTION
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. THE REQUIREMENT
FOR TWO
DOCTORS' SIGNATURES
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. CONSCIENTIOUS
OBJECTION
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. THE SELECT
COMMITTEE'S
FOCUS ON
NEW RESEARCH
AND EVIDENCE
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, http://www.psychology.soton.ac.uk/research/cshr/. Back
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