Claim: “Women are legally free to abort a baby because of its sex”

Pregnant Woman in HospitalThe issue of “sex selective abortion” is traditionally framed as a problem common in the Asian continent or South-Eastern Europe. However, in early 2012, The Telegraph carried out an undercover investigation at various abortion clinics in England and found that doctors were willing to authorise abortions for women who objected to the birth of the baby because of its sex. One of the doctors likened the practice to “female infanticide” while the other told a woman it was not her job to “ask questions”. The Telegraph then inaccurately attributed the claim; “women are legally free to abort a baby because of its sex” to Ann Furedi, chief executive of the British Pregnancy Advisory Service (BPAS).

True or False?

The practice has generally been deemed illegal, although there is recognition that the broad scope of the Abortion Act 1967 facilitates such procedures in practice. The current law does not preclude a doctor from considering gender as a factor, as long as this is justified on a medical basis, and outlaws abortion on gender grounds alone. This makes the claim false, along with its attribution to Ann Furedi (and BPAS, which distanced itself from The Telegraph’s paraphrasing of her comments).

FalseAnalysis

Following the CPS decision not to prosecute the doctors, Furedi stated: “A doctor agreeing to an abortion on grounds of rape would be breaking the law [no more and no less] than a doctor who agrees an abortion on grounds of sex selection. ” She added: “…The sex of the foetus is not a legal ground for abortion, nor is rape…or being 13 years old… yet they are [all] reasons why a doctor may believe a women has met the legal grounds of abortion.”

Furedi pointed to the lack of legal clarity on the matter of sex selective abortions, arguing: “there is no legal requirement to deny a woman an abortion if she has a sex preference, [providing that the legal grounds are still met]…The law is silent on the matter of gender selection, just as it is silent on rape.” The Act’s ‘silence’ on the matter of gender selection is what prompted David Burrowes MP to describe as “holes [in its] safeguards” commenting: “[The Act] allows for abortion on demand and is not fit for purpose”.

A series of complex exchanges between the Director of Public Prosecutions (DPP), British Medical Association (BMA), Attorney General, Health Secretary and General Medical Council (GMC) followed The Telegraph investigation. The two doctors had the evidence against them considered by the Crown Prosecution Service (CPS) which eventually decided not to prosecute, on the basis that it was not in the public interest to do so, and that the GMC had the power to take disciplinary action. This caused a huge amount of controversy and swiftly led to 50 MP’s urging the Attorney General to investigate the matter.

The Offences Against the Persons Act 1861 (OAPA) and Abortion Act 1967 set out the rules governing abortions in the UK. Essentially, it is illegal for a person to procure an abortion (under OAPA) unless one of the four defences set out in section 1(a-d) of the Abortion Act 1967 can be invoked to justify such a procedure. Thus, an abortion is only lawful if two doctors decide, in good faith, that continuing a particular pregnancy would pose a risk, greater than that of termination, to the physical/mental health of the pregnant woman (or unborn child/existing children of her family).

Moreover, a scandal relating to the pre-signing of abortion forms, (effectively allowing a doctor to make a solo decision on an abortion procedure, thus breaching the Abortion Act 1967) further added to the controversy. In nations such as Canada, the issue has challenged liberal lawmakers attempting to balance a woman’s right to choose with the rights of an unborn baby.

In the wake of the controversy Keir Starmer QC (then DPP) said: “The law does not…expressly prohibit gender-specific abortions; rather it prohibits any abortion carried out without two medical practitioners having formed a view, in good faith, that the health risks of continuing with a pregnancy outweigh those of termination.” Starmer continued: “there is no legal requirement to deny a woman an abortion if she has a sex preference, providing that the legal grounds are still met…abortion is prohibited…unless one of the grounds for an abortion [as set out in Section 1 of the Abortion Act 1967] applies.

Furthermore, a senior policy advisor told us: “The article headed ‘women are legally free to abort a baby because of its sex’ can be re-written to readwomen must be aware that it is illegal to abort a baby because of its sex unless a legal defence as set out in the Abortion Act 1967 applies.

In its ‘Handbook of Medical Ethics and Law‘ the BMA declared: “it is normally unethical to terminate a pregnancy on the grounds of foetal sex alone”. However, the guidance added: “The pregnant woman’s views about the effect of the sex of the foetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may [conclude] that the effects are so severe as to provide legal and ethical justification for a termination.” This advice mirrors that of the GMC in a statement published following the Telegraph report, in which it was made clear that “abortions provided solely on the grounds of the sex of the foetus are not legal in the UK.

There are many factors which could be relevant to the decision making process, ranging from “cultural pressure to have a child of one sex, to the extent that mental health could be compromised by feelings of failure in that regard”, to “[the desire] for a child of a certain sex as part of a recovery from the loss of a child of that [same] sex”. Ultimately, as an academic with expertise in medical law told us: “the mechanism for adjudicating the lawfulness of abortion is this general test under section 1, so as to avoid specifying a list of acceptable grounds which may omit a factor[s], and so as to trust medical discretion…

Health Secretary Jeremy Hunt only intervened definitively around two years after the 2012 Telegraph investigation, issuing guidance that warns doctors who carry out abortions based solely on the sex of an unborn baby and pre-sign abortion forms are breaking the law.  Abortion clinic licence conditions will also require explicit references to gender-based abortions to make it clear that they are illegal under UK law.

Commentary

Almost 25 years ago, the economist Amyrta Sen published an essay entitled ‘More than 100 Million Women Are Missing’ and reflected on the sex ratio disparity between Europe and North America on the one hand, and the developing world (principally India and China) on the other. Invoking “the neglect of women in third-world countries” Sen identified inequalities in “health care, nutrition and education” as being major causes, but did not (like Mara Hvistendahl) directly implicate sex-selective abortions as being responsible for the disparity in numbers. Hvistendahl argues that female empowerment appears to have led to more sex-selective abortions, despite the fact that patriarchal societies are often blamed for engendering such discriminatory conditions. She observes: “[in many communities] women use their increased autonomy to select for sons”, recognising that male offspring bring with them higher socio-economic status.

Currently, the situation seems most unacceptable for those supporting the rights of the unborn child. Furthermore, there is a risk that the failure to prosecute by the CPS means doctors will be less concerned about criminal consequences if they authorise sex selective abortions in future. Nevertheless, medical practitioners must not be deterred from working by punitive legal restraints and a fear of prosecution should they appear to lend too much weight to a mother’s preference for a child of a certain sex.

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