ISSUES
: Abortion
Chapter 2: Abortion debate
30
Why we need to clarify our abortion
laws
Despite the official line, our woefully out-of-date Abortion Act is being
routinely abused.
By Dominic Grieve
I
n 2010, Lord Bingham – one of
our great jurists – published an
important work. In it he sets out
what have quickly become known
among lawyers as “Bingham’s eight
principles” – the key ingredients of
the rule of law.
Topping Bingham’s list is the
requirement for the law to be
accessible, intelligible, clear and
predictable.
When the law is failing to meet
these criteria, it should be revised.
It is worth bearing this in mind when
examining the law surrounding
abortion on the grounds of gender
selection.
In my view, the Government is
correct when it says: “Abortion
on the grounds of gender alone is
illegal.”
However, the former Director of
Public Prosecutions Keir Starmer
was also correct when he said: “The
law does not in terms expressly
prohibit gender-specific abortions.”
And the British Pregnancy Advisory
Service (bpas) was arguably also
correct when it said: “The act
does not prohibit a doctor from
authorising an abortion where a
woman has referenced the sex of
her foetus.”
The reason that these seemingly
contradictory statements are all
possible simultaneously is that
there is no explicit statement about
gender-selective abortion in UK
law.
Parliamentarians
behind
the
Abortion Act, 1967, can hardly be
blamed for this. Ultrasound was not
in common use back then. It never
occurred to MPs that anyone would
seek to have an abortion because
they simply did not want a child of a
particular gender.
So how, if there is no explicit
prohibition in law, can the
Government be correct when it
says that the practice is illegal? In
a nutshell, because the 1967 act
permits abortion only where two
doctors form the opinion that the
reason for the termination meets
the grounds set out in the act. And
the gender of the foetus is not one
of those grounds.
By far the most commonly cited
ground for abortion is that the
continuance of the pregnancy
would risk greater damage to the
mental or physical health of the
mother than termination. This is
what most people call the “social
clause”, which accounts for around
98 per cent of abortions – typically
around 180,000 a year. Anyone
performing or procuring an abortion
on any ground other than those set
out in the 1967 Act is vulnerable to
prosecution under section 58 of the
Offences Against the Person Act,
1861 for “procuring a miscarriage”.
The problem is that – in some cases
– the grounds for abortion under
the 1967 act have been turned into
little more than a rubber stamp for
abortion on demand. Some argue
that this ought to be the mother’s
right, but it is not what the 1967 act
allows. If that is what is wanted, we
need a new law.
It is quite clear that the “wrong
gender” of the child alone cannot
fit within the criteria for permitting
abortion under the 1967 Act. But
the law is being abused. In my
view, this presents a powerful case
for trying to clarify the law. This
presumably is why Parliament voted
so overwhelmingly in favour of a
motion suggesting precisely that
back in November, and this is why
I put my name to the amendment
that Parliament will consider today.
The amendment is designed to
make explicit the current situation
in law. It achieves its purpose and
does so proportionately. But it is
not without controversy.
Some campaigners are vehemently
opposed. They are entitled to
their view, but it must be said that
some of the criticism is founded
upon misrepresentation of the
amendment’s purpose and likely
effect.
One commonly held, yet mistaken,
view is that this amendment
