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11 March 2015

The ‘sex-selective abortion’ story

Why did opponents of abortion become convinced that banning ‘sex-selective’ abortions was the way to go? Jennie Bristow reports.

One of the most significant attacks on Britain’s abortion law in recent years has come in the form of claims that doctors have been authorising ‘sex-selective’ abortions. This began with a sting operation by the Daily Telegraph newspaper in 2012, which claimed to have found two doctors working in private practice who were prepared to authorise an undercover journalist’s request for an abortion because she talked about the sex of her fetus.

The claim quickly snowballed, provoking a commentary in the Telegraph the next day by then Health Secretary Andrew Lansley condemning sex-selective abortion as ‘illegal’ and ‘morally repugnant’. Lansley then launched a shock wave of inspections on abortion clinics by the Care Quality Commission (CQC). The Independent newspaper at the beginning of 2014 published an investigation claiming that ‘commonplace’ practice of sex-selective abortion within ‘some ethnic communities in Britain’ has led to ‘between 1,400 and 4,700’ missing girls.

In November 2014 Fiona Bruce, a Conservative MP and Chair of the All-Party Parliamentary Pro-life Group, who has brought a number of attempts to restrict abortion, introduced a Ten Minute Rule Bill calling for a ‘clarification’ that ‘nothing’ in the Abortion Act ‘allows a pregnancy to be terminated on the grounds of the sex of the unborn child’. Bruce’s Bill was supported by 181 MPs, with only one MP voting against; this spurred Bruce on to bring, at the beginning of 2015, an amendment to the government’s Serious Crime Bill, which had reached Report Stage.

The Bruce amendment to the Serious Crime Bill read: ‘Nothing in section 1 of the Abortion Act 1967 is to be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the unborn child.’ A vocal campaign calling itself ‘Stop Gendercide’ argued vigorously that a ban on sex selective abortion would give a clear message to certain ethnic communities that son preference was wrong.

In a tense Parliamentary debate on 23 February, Bruce’s amendment was defeated, by 292 votes to 201. Academics, medical bodies such as the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, charities dedicated to supporting Asian women and campaigning against gender-based violence, and charities dedicated to supporting couples following a diagnosis of fetal anomaly made some powerful arguments about the problems with the Bruce amendment.

These arguments were that the Bruce amendment: a) was unnecessary, as the law already prohibits abortion on the grounds of fetal sex alone; b) would contribute to the difficulties experienced by women who were seeking a termination for reasons that might include the sex of the fetus (for example, a family history of serious sex-linked genetic disorders; c) would not address the deep-rooted causes of son preference in communities where this might exist; and d) was motivated by a well-known opponent of abortion, who was using the language of protecting women from ‘gendercide’ to undermine the abortion law in general, through demanding a greater scrutiny of women’s reasons for seeking terminations.

MPs debating the amendment in the House of Commons took these arguments on board and ultimately recognised that an explicit ban on ‘sex-selective abortion’ would do more harm than good. However, the fact that a challenge of this kind got so far in the first place illustrates some important features of anti-abortion campaigning today, and the way in which misinterpretations of the 1967 Abortion Act can be marshalled to create a chilling effect on doctors’ practice, and restrict women’s access to legal abortions.

‘Sex-selective abortion’: a cause in search of an argument

The Daily Telegraph is a newspaper known for its antipathy to abortion. In its sting operation of 2012, undercover journalists visited a number of clinics, including those run by British Pregnancy Advisory Service, where they requested an abortion because they believed the fetus to be a boy, or a girl. Most clinics, including those run by BPAS, turned the journalists away.

In the end, this major ‘investigation’ was able to find only two doctors, working in private practice, who might be prepared to authorise the abortion – and this was the story that the Telegraph went to town on. As noted above, the Health Secretary quickly condemned sex-selective abortion, and ordered the Care Quality Commission (CQC) to conduct inspections on all abortion providers, to ensure that the legal requirements for abortion were being met. The CQC found no evidence of illegally authorised abortions; nor did the regulator find that ‘any women had poor outcomes of care’.

In September 2013, the Director of Public Prosecutions (DPP) announced that the two doctors would not be prosecuted, because there was insufficient evidence to proceed with a prosecution and to do so was not in the public interest. The bar for bringing a prosecution is very low, and so to state that there was not even enough evidence to bring this case to court was very significant. When the CPS published the full reasons for its decision not to prosecute, it transpired that the journalist in this investigation, far from demanding a termination based on the sex of the fetus alone, had mixed in other reasons for her request, including concerns about fetal anomaly and late miscarriage.

This really should have been the end of the matter. It turned out that all the Daily Telegraph investigation had found was that doctors working in the British abortion service do not authorise abortions for reasons of ‘sex selection’ alone; they will only authorise abortions under the legal grounds laid out by the 1967 Abortion Act, which state that two doctors have to agree in good faith that an abortion poses less risk to a woman’s physical or mental health than would continuing a pregnancy to term, or that the pregnancy carries a serious risk of fetal anomaly.

Yet despite the DPP’s statement that the abortion doctors pilloried by the Telegraph were not operating unlawfully, the issue did not go away. If anything, it provoked others into more desperate attempts to find ‘evidence’ to support the concerns about the extent of sex-selective abortions: including the Independent’s claims about sex ratios, the Bruce Bill and amendment, and private prosecutions brought against the two doctors by the Christian Legal Centre.

The Department of Health (DH) responded to these concerns in May 2014, by publishing updated annual birth ratio statistics for England and Wales. These continued to find ‘no evidence of sex selection occurring in the UK.’ The DH also published formal ‘Guidance in Relation to Requirements of the Abortion Act 1967’, which confirmed that that abortion on the grounds of gender alone is not lawful, and ‘the expectation that 2 doctors, when certifying that an abortion meets the criteria set out in the Act, must consider the individual circumstances of the woman and be prepared to justify their decision.’

In other words: doctors are currently meeting requirements of the 1967 Act by assessing women’s particular circumstances; if fetal sex is mentioned as bound up with these wider circumstances, a doctor may feel that a termination can be authorised. This was the central point made by the 2013 BPAS pamphlet Britain’s Abortion Law: What it says, and why, in which legal scholars explained why the law does not explicitly prohibit abortion for reason of fetal sex.

Fiona Bruce made numerous references to this pamphlet, in her attempts to insinuate that doctors are flouting the law, and that there needed to be more explicit ‘clarification’ that ‘sex-selective abortion’ is illegal. Ultimately, her campaign shone a light onto the reasons why, in fact, such an explicit ban would be deeply problematic for the women that the Abortion Act is designed to protect, and for the doctors who help them.

Turning on doctors

Under the law, a doctor who is confronted with a woman wanting an abortion ‘because it’s a girl’ cannot authorise the abortion for that reason alone. This would be no different if the woman were to demand an abortion ‘because I was raped’, or ‘because I have three children under five already’, or ‘because my partner has been beating me up’, or ‘because I have to take my exams’, or ‘because I’m in my mid-forties and my family was completed years ago’, or any other conceivable, or sympathetic, reason that a woman could give for needing an abortion.

None of these requests are legal grounds for abortion. The 1967 Abortion Act emphatically does not make legal ‘abortion on request’: it is only legal when two doctors agree that the woman meets one or more of the legal grounds. The doctor must make his or her decision based on the relative risk to a woman’s physical or mental health of having an abortion versus carrying the pregnancy to term; and this decision can take into account the woman’s ‘actual or reasonably foreseeable environment’.

So if a doctor believed that a woman with three young children already would struggle, physically, emotionally, or financially, with a fourth baby, and if this woman really did not want a fourth baby and is requesting a termination, how could this doctor, in good conscience, refuse her request for an abortion? If a forty-something mother of teenage children is worried about the impact of pregnancy on her own health, anxious about the risk of having a child with a disability, and really does not want another baby – would it be right to turn her down?

If a woman is being beaten up by her partner and knows that having a baby will destroy her chances of leaving him, thereby compromising her health further – how could the doctor tell her to have the baby? What if the woman does not want to leave her partner, or cannot leave him, but feels that continuing the pregnancy will make the situation worse? The doctor cannot change this woman’s circumstances – but he can permit her to have an abortion, rather than forcing her to carry the pregnancy to term.

These are the kinds of judgements that abortion doctors and their clinical teams have to make every single day. They are often painful, complex, and unhappy. In this context, it is not difficult to see how a woman’s decision to terminate a pregnancy might, in some particular circumstances, be bound up with an anxiety that she cannot have another girl, or another boy.

The abortion would never be authorised for that reason alone – but if that reason formed part of the larger reason why it would be better for a woman’s mental or physical health to terminate the pregnancy, provided this is her decision, then a doctor would be acting quite lawfully in approving her decision.

The discussions that take place between doctor and patient are highly personal, and often involve weighing up a complex set of considerations and circumstances. This is why, when the 1967 Abortion Act was written, there was no list given of particular reasons why an abortion should or should not be authorised. To provide such a list would have undermined the clinical discretion of doctors and their clinical teams to make decisions based on their individual patients – and without that professional integrity, the law would not work at all.

The aim of the campaign against ‘sex-selective abortions’ has been shamelessly to smear abortion doctors, who are acting within the law and for the benefit of their patients. This was revealed by the Telegraph’s partial reporting of its investigation, which omitted the journalist’s claims about fetal anomaly and miscarriage; the speed at which the Health Secretary endorsed this ‘investigation’ to grand-stand about the immorality of sex-selective abortions; and the way that Fiona Bruce jumped upon the issue as her latest attempt to undermine access to abortion. (Bruce’s previous campaign, which also failed, was to bring down the gestational limit for abortions carried out on grounds of fetal anomaly.)

The assault on doctors’ professional integrity has also been highlighted in private prosecutions brought by anti-abortion campaigners against the two doctors named in the Telegraph investigation. Given the strength of the CPS’s statement as to why these doctors should not be subjected to public prosecution, it is incredible that such vindictive prosecutions can even have been brought

These ongoing attempts to vilify doctors reveals the desperation and the tenacity of the anti-abortion movement, who still cannot accept that their tactic of undermining the law through panic-mongering about sex selection has failed. After all, this has been a campaign in the making for some time.

Sex selection: The latest ‘anti’ tactic

In Britain, the campaign to manufacture an opposition to abortion based on sex selection goes back at least as far as 1993, when the Society for the Protection of Unborn Children (SPUC) commissioned a Gallup poll asking whether respondents approved or disapproved of abortion ‘where the couple decide on an abortion after sex selection tests’. Not surprisingly, 86% of people disapproved of abortion in these circumstances; and SPUC’s press release was headlined, ‘Sex Tests: Public Say No to Abortion’.

In 2013, Fiona Bruce, along with Labour MP Jim Dobbin, introduced a private bill to urge the Government to introduce monitoring of the sex of aborted fetuses. This was a ludicrous request, which would not even have been technically possible; but it indicates that Bruce has been attempting to find a way of using this tactic for some time.

As with many campaigns designed to undermine Britain’s abortion law, campaigners have probably got their ideas from the USA. Over the past few years, America has experienced an onslaught of state laws designed to restrict access to abortion, on a number of spurious grounds. One of these is an attempt to legislate against ‘sex-selective abortion’ – a campaign that has been exposed as politically motivated, relying on racial stereotypes and a series of ‘myths’ about the practice and prevalence of ‘sex-selective abortion’ in the USA.

An article by Eesha Pandit on the website RH Reality Checkreveals how the campaign against sex-selective abortion in the USA is a deliberate tactic designed to undermine abortion rights in general. Pandit cites Steven Mosher, ‘the head of the conservative, anti-choice Population Research Institute’, back in 2008:

‘I propose that we – the pro-life movement – adopt as our next goal the banning of sex- and race-selective abortion. By formally protecting all female fetuses from abortion on the ground of their sex, we would plant in the law the proposition that the developing child is a being whose claims on us should not depend on their sex.’

The anti-abortion movement, said Mosher, should tap into the disquiet that ‘radical feminists, the shock troops of the abortion movement’, may feel ‘at the thought of aborting their unborn sisters’. This, he claimed, opened a space for a campaign to undermine abortion by focusing on claims about sex-selection:

‘While the pro-aborts are stammering and stuttering, we pro-lifers will be advancing new moral and logical arguments against the exercise of the “right” to an abortion solely on the grounds of sex or race. For those who are immune to moral arguments, we can also use the examples of China and India, where sex-selective abortion is creating enormous societal problems. The debate over sex- and race-selective abortion will also help to focus the public’s attention on how unregulated the abortion industry is. In these and other ways, the debate over this legislation will not subtract from, but add to, the larger goal of reversing Roe v. Wade and, ultimately, passing a Human Life Amendment.’

To those of us familiar with the tactics of the anti-abortion movement, the breathtaking cynicism of this quote should not come as a surprise. As Mosher indicates, opponents of abortion have failed to win support for their moral arguments, which rest on the view that all abortion is murder, and therefore wrong. So they have changed their arguments.

In the USA, the cynical motivations behind the recent laws banning sex-selective abortion have been clearly exposed. In 2012, there was an unsuccessful attempt by Republicans to pass the ‘Prenatal Nondiscrimination Act’ (known as PRENDA) in the House of Representatives.  If that bill were to become law, Kate Sheppard explained on Mother Jones at the time, ‘a doctor or nurse who suspects that a patient is seeking a sex-selective abortion would be required to report her to authorities. Doctors who perform such a procedure could face jail time, fines, or lawsuits from a patient or her family’.

In a furious riposte to the PRENDA proposals, Miriam Yeung of the National Asian Pacific American Women’s Forum, Jessica González-Rojas of the National Latina Institute for Reproductive Health, and Eleanor Hinton Hoytt of the Black Women’s Health Imperative, wrote:

‘This bill means that all women - and to be clear, particularly Asian American women - who seek an abortion could face new, intense scrutiny. In particular, given the issue of sex selection in Asian countries, any woman who appears to be Asian American risks intense questioning about the decision she has made to seek an abortion. The bill also targets providers and makes it more difficult to provide reproductive health care including abortion…

‘No woman should ever be scrutinized or interrogated by her doctor, but this is exactly what would happen if this bill becomes law. Given the risks to providers, even the decision to find out the sex of a child during a wanted pregnancy may become suspect.’

PRENDA failed to pass through the House of Representatives. Politicians saw this bill for what it was: as the New York Times reported, ‘Democrats accused Republicans of contriving a vote on legislation to address a problem that does not exist’.

But at a state level, opponents of abortion have succeeded in bringing in a number of laws banning sex-selective abortion: in Arizona, Illinois, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania, and South Dakota. In these states, performing a sex-selective abortion (or in some cases attempting to perform such an abortion) carries penalties; in Arizona, Pennsylvania and South Dakota it is classed as a felony.

The intrusive character of these laws is well recognised to be part of a wider attempt by opponents of abortion to restrict women’s access to abortion in general. As the Guttmacher Institute reported in early 2014, more abortion restrictions have been enacted in the USA over 2011-2013 than were in the previous decade. Yet even these highly restrictive, politically-motivated laws implicitly recognise that the ‘sex-selective abortion’ issue is difficult to legislate for. Five of the eight legislate for liability only if the sex of the fetus is seen to be the ‘sole factor’ in the woman’s decision-making; and two provide a specific exemption if there is a sex-linked disorder at issue.

These are the grey areas that even punitive anti-abortion laws in the USA have to allow for. And they are also the grey areas allowed for by the British abortion law.

The real problem with the law today

Pro-choice advocates have long argued that the 1967 Abortion Act is problematic, because it puts the abortion decision with doctors, rather than with the pregnant woman. It is fundamentally a paternalistic piece of legislation that presumes that pregnant women cannot decide for themselves to have an abortion, when that is what they feel they need to do.

It is bizarre that in the twenty-first century, we have a law that frames abortion as a crime, which is only legal in circumstances authorised by two doctors. Abortion today is safe, acceptable, and a normal part of life. It would be much better if abortion could be regulated as any other medical procedure, with regulations grounded patient safety and good clinical practice, rather than attempts to satisfy arcane legal requirements in the criminal statute.

Yet the problem with the Abortion Act does not lie with the doctors themselves. Doctors and their clinical teams are dedicated professionals, who are motivated by a desire to do what is best for their patients within the terms of the law. The most shocking thing about recent attacks on the Abortion Act is the way that these have tried to misinterpret the law in order to create a slur on doctors’ professional practice, creating confusion and a chilling effect around the kind of professional decisions that doctors have been making for years.

One of the points to come out of the Parliamentary debate on Fiona Bruce’s sex selection amendment was that this is not the way to reform the law – it is dangerous, incoherent, and politicised. If the Abortion Act is to be amended, this should not be through ill-considered amendments sneaked through the back door at the last minute. Many opponents of abortion have argued that the law is no longer ‘fit for purpose’. We agree – and will be pressing for a thorough, open and considered reform of the law in the months to come.

For anyone genuinely interested in the questions posed by the abortion law and current practice, book now for the BPAS/Royal Society of Medicine conference ‘Decriminalisation and Demedicalisation: Rethinking family planning for the 21st century.’ This will be held in central London on 10 June 2015.

Programme information and tickets are available here. Places are limited so please book early.

Also read:

Reproductive Review topic archive: ‘Sex selection’ claims