Gender Based Abortion or Medical Opinion Formed in Good Faith? An Examination of the Criminal Law relating to Abortion.
by Guest Writer J Barry
The Health Secretary is to look into claims that some doctors are performing abortions based solely on the gender of the foetus. A recent newspaper investigation revealed that three of nine clinics approached were allegedly prepared to offer such a gender-based abortion service. The Health Secretary was at pains to point out that such a practice is immoral and illegal. The Society for the Protection of the Unborn Child has described gender-selective abortion as “eugenics”. The first question is, of course, on what basis the nine clinics were selected for investigation by the newspaper? Were they targeted on the basis of rumour and reputation and therefore represent a pre-selected sample? Three out of nine easily translates in the public consciousness to a third of all clinics and so a moral panic is born with a sense of public distaste and an appetite for prosecution. What is certainly true is that any doctors, if accused and convicted of what amounts to an illegal abortion, face professional ruin and a substantial prison sentence. The real danger is that a termination carried out for the “wrong” reason will so often look identical a termination for the “right” reason.
The relatively liberal approach to abortion in the UK may serve to divert us from a starting point that abortion is illegal by virtue of s.58 of the Offences Against the Person Act 1861 where the prohibition is clearly stated in the language of that time;
“Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of [an offence], and being convicted thereof shall be liable to [imprisonment] for life.”
The Abortion Act 1967 provides limited legalisation so that a person performing an abortion “shall not be guilty of an offence” if they are a medical practitioner and if two registered 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.
Those who are unfamiliar with the legislation maybe surprised at its apparent restrictiveness given that abortion is widely available in this country. It is plain that practitioners are allowed substantial latitude in the interpretation of the conditions set out in the 1967 Act. It is commonplace for practitioners, for example, to form an opinion “in good faith” that a termination is justified upon the basis of risk to the mental health of the women concerned even though there is no history of psychiatric illness.
It is likely that medical practitioners (doctors) will face criminal charges where it appears that the sole basis of the termination was that the parents did not want, for example, a female child. The practitioner will want to establish that the conditions set out in the 1967 Act were complied with. Danger arises where the practitioner involved has formed a good faith opinion in accordance with the statutory conditions but the termination has the outward signs of gender selection. The “in good faith” stipulation was stated in Smith  1 WLR 1510 to be a matter for the jury to be determined by reference to all the evidence. This means that it would be open to a jury in a criminal trial to infer from all of the circumstances that a practitioner purporting to perform a termination in accordance with the legislation was not acting in good faith and therefore the abortion was illegal. The risk is that a jury might take into account matters which they should not take into account or place too much weight upon such matters. Such matters may include the fact that the patient and/or the medical practitioner come from a culture where boy children are valued much more highly then girl children or where the patient herself, under the misapprehension that the termination was conducted upon the basis of gender selection broadcasts this to the world.
In a criminal trial it is up to the trial judge to act as a filter in relation to the evidence that the jury hears and to properly direct the jury as to how they should apply the evidence placed before them. The judge will make these decisions having heard submissions from both the prosecution and defence advocates. Even in the event of damaging evidence going before the jury it will be the defence advocates task to seek to persuade the jury to look at the evidence in a way most favourable to the defendant. It is a high stakes game where sentences of three to five years imprisonment would not be unlikely in the event of conviction and as is so often the case in an adversarial system, so much depends, here, on the skill of the jury advocate in criminal law practice.
The General Medical Council (GMC) might also take action against a doctor, where a doctor is charged with or convicted of a criminal offence. The GMC also now ‘prosecutes’ fitness to practise cases even where a doctor is acquitted in the criminal courts. Oral and written statements made by a doctor in the criminal court are highly likely to be taken into account by the GMC. Doctors should therefore ensure that any statement they make during the criminal process is a properly considered one, to ensure that their defence case or mitigation case is clearly understood by both the criminal courts and the GMC.
Abortion (or termination of pregnancy) will continue to be a controversial and sensitive topic, making doctors’ decision-making processes vulnerable to criticism. Doctors have difficult judgements to make, when a patient attends their clinic to request an abortion. Good record-keeping by the doctor involved in the consultation, making clear reference to the evidence that supports the doctor’s clinical decision, will assist a doctor to defend their judgement should it be scrutinised by the police or the GMC at a future date. Keeping up to date with the law of abortion and with GMC policies will also help doctors to make safe and practicable decisions that keep them on the right side of the criminal law.
[J Barry, February 2012]
To speak to one of our criminal law lawyers about a Medico-Criminal Law matter or for legal advice or legal representation concerning abortion law and doctors’ legal responsibilities, contact Doctors Defence Service on 0800 10 88 739.