6 September 2013
September digest: Doctors in UK ‘sex selection’ case will not be prosecuted
This month's top stories on Reproductive Review.
The Crown Prosecution Service (CPS) has ruled that it would not be in the ‘public interest’ to prosecute the two doctors exposed in an undercover Daily Telegraph investigation into ‘sex selection’ abortions, which took place in February 2012.
The CPS acknowledged, following a 19-month inquiry, that there was sufficient evidence to warrant a prosecution with a ‘realistic prospect of conviction’. But it told police that a ‘public interest test’ had not been met. It also said that there was no need to mount a prosecution because the General Medical Council, the body which oversees the conduct of doctors, could deal with the case.
Jeremy Hunt, the Health Secretary, on Wednesday night pressed for ‘urgent clarification’ from the Attorney General. He said: ‘We are clear that gender selection abortion is against the law and completely unacceptable. This is a concerning development and I have written to the Attorney General to ask for urgent clarification on the grounds for this decision.’
The key point about sex selection is that, while many of those working in the abortion service find abortion for sex selection ethically objectionable, and might refuse - as they did in the Telegraph’s sting operation - to authorise an abortion for these reasons, IT IS NOT ILLEGAL. In fact, 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 only thing that matters from a legal point of view is that an abortion is authorised by two doctors, acting in good faith, on one (or more) of the following grounds (with each needing to agree that at least one and the same ground is met):
(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 previous Health Secretary, Andrew Lansley, misinterpreted the law, with damaging consequences for the abortion service as a whole. That the current Health Secretary, Jeremy Hunt, appears to be repeating the same misinterpretation is deeply worrying.
The two doctors at the centre of the ‘sex selection’ story have spent over a year facing the possibility of prosecution, and have been pilloried by the media and politicians. For their sake, the CPS decision is welcome – though it is long overdue, and may not undo the damage already caused. Also for their sake, and the sake of all the other doctors and nurses in the abortion service, it is necessary to continue clarifying to politicians, the media, and professional bodies what the abortion law actually says.
We cannot have a situation where people feel constantly at risk of falling foul of the next politician’s misinterpretation of the law, which then leads to an interrogation of their practice. The outcome of events of 2012 confirm that abortion doctors work within the law, as it is written and as it is intended to be applied. That certain influential voices persist in claiming otherwise shows a startling lack of respect for health professionals and the law, and a callous disregard for the women who depend on them.
Following the Telegraph sting operation of 2012, the previous Health Secretary, Andrew Lansley, issued a number of emotive and factually inaccurate statements about the abortion law. He then ordered an inspection of every abortion clinic in the country, which found no evidence of illegal activity. The ‘Lansley raid’ did, however, cause significant anxiety amongst clinicians working in the abortion service, who complied with the law but became aware that the Health Secretary, and even some of the medical bodies, did not understand the law.
In June 2012, Pro-Choice Forum organised a briefing at which legal specialists explained both the letter of the abortion law, and what that means for its application. The outcome of this briefing is published in the BPAS pamphlet, ‘Britain’s Abortion Law: What it says, and why’.
The papers in this publication have been written by academics and lawyers to clarify the British abortion law, through explaining both its origins and its application today. These papers explain that the 1967 Abortion Act was very carefully worded to provide doctors with the discretion to manage the abortion question, according to their own professional judgement. The abortion regulations, similarly, are designed to support the law, which has at its heart the discretion of the doctor.
There is no ambiguity to the law, nor has there been any failure in its ability to act as Parliament intended when it was passed in 1967. The failure was in the ability of many in 2012 to understand the law correctly. This pamphlet aims to correct this failure of understanding, and reassure medical professionals where they stand in relation to the authorisation of abortions in Britain today.
View video footage of the Pro-Choice Forum meeting of 27 June 2012, here.
Some excellent legal commentaries and press statements have had to vie with demands that the Crown Prosecution Service deliberately misinterpret the Abortion Act.