The British Pregnancy Advisory Service (BPAS) has claimed that it would not necessarily be illegal to have a sex selective abortion i.e. because you wanted a boy due to cultural reasons and discovered that you were expecting a girl. They say on their website:
“No. The law is silent on the matter. Reason of fetal sex is not a specified ground for abortion within the Abortion Act, but nor is it specifically prohibited. Other reasons for abortion that are widely accepted as ‘good’ reasons – for example, if the woman has been raped – are not specified either.
The Abortion Act gives doctors the power to make decisions about whether a woman can end a pregnancy on the basis of specific grounds. It does not prevent a doctor approving an abortion where a woman has mentioned the sex of the fetus, but one of the grounds of the Act would have to be met. There will be rare circumstances where fetal sex may be a factor in a woman’s decision making – each case will be individual and doctors are asked to decide in ‘good faith’ whether that individual woman meets the criteria set out in the Act.”
The first thing to say about this is that it requires a significant misunderstanding of legislation to make such a claim. Here is the actual wording of the 1967 Act.
“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—
(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; or
(b)that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c)that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; 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 seriously handicapped.]
The crucial statement in that section is “a person shall not be guilty of an offence under the law relating to abortion.” The intent of the act is not to generally legalise abortion but to provide exceptions to what was already a criminal offence under previous legislation. What that means is that it is only for those specified reasons given that a person is exempt from prosecution. It is illegal and a criminal offence to procure an abortion unless the medical professional involved believe that there is significant risk to the physical or mental health of mother or baby.
In terms of rape victims, the exemption then isn’t simply that a rape has taken place but rather that there is belief that the continued pregnancy will lead to significant and harmful distress for the mother.
It is concerning that BPAS sets itself up as an organisation qualified to offer advice when it is incorrect in its basic understanding of the Law.
The second thing to note is that technically I guess it could be possible to find a loophole in the law here if the parent were to argue that the gender of their child would cause mental distress for them of a “grave” and “permanent” nature. Arguably, it has been that lose wording around mental health that has opened the door to easy and ready access abortions. I would argue that pro-life campaigners would best focus their attention right now on getting better definitions of what mental illnesses are covered under the legislation, particularly given that our understanding of mental illness has broadened significantly since 1967.
Thirdly, we also need to recognise that the recent change to the law stating that women would not be prosecuted for an abortion to kill their own baby even if late term (beyond 24 weeks) has the effect of decriminalising abortion for the mother. So, the advice given is in effect becoming redundant. It is now only the medics administering an abortion who will be held liable for the offence that has been committed. Note, this means that abortion is still a criminal offence. Campaigners need to focus their attention here. What that legal change has meant is that a person seeking an abortion outside of the remit of the 1967 Act is likely to seek self administered drugs. One of the reasons why the law previously limited when these could be administered was that such abortions were not safe for the parent, later in the pregnancy. There is therefore a strong case for campaigners focusing on dealing with the fallout for what may have been a good intentioned but ultimately seriously flawed piece of legislation. What I believe we should be looking for is a change to the law that requires all abortions to take place at a hospital under medical supervision. Whilst there may be compassionate grounds in manty cases for not holding mothers criminally liable, the law should make it clear that those prescribing and administering drugs are always criminally liable for participating in an abortion outside of the 1967 Acts scope.
Faithroots 