Catholic Medical Quarterly Volume 64(2) May 2014
Is abortion on the grounds of gender selection legal in the UK?
Dr Dermot Kearney
The Newcastle Branch of the Catholic Medical Association (CMA) addressed the question “Is abortion on the grounds of gender selection legal in the UK?” at a meeting in Bede House, Newcastle University Chaplaincy on 28th November 2013. Formal presentations were made by Dr Dermot Kearney of the CMA Newcastle branch and Mr Stuart Cowie, Head of Education with LIFE.
This question arose after a Daily Telegraph undercover investigation in February 2012. A number of medical doctors were exposed as willing to carry out abortions under such circumstances. On camera, one doctor explained that she would be prepared to carry out abortions for any reason by stating “I don’t ask questions. If you want a termination, you want a termination”.
The report caused a stir in the media and among politicians who expressed shock that such practices could be considered in this country. The Crown Prosecution Service (CPS) investigated the doctors concerned. After a long investigation, the CPS stated in September 2013 that “prosecution of the doctors would not be in the public interest”. This led to further expressions of indignation in Parliament. Even several prominent supporters of abortion were concerned that abortions might be carried out on the basis of foetal gender. David Steel, one of the main figures supporting the decriminalisation of abortion in 1967, stated that gender-selection abortion was “wholly repugnant”. The Prime Minister, David Cameron, said that “abortions on the basis of a child’s sex are wrong and illegal in this country”. But was he correct? Keir Starmer, the former Director of Public Prosecutions and one of the most senior legal experts in the UK, stated that the 1967 Abortion Act “does not expressly prohibit gender-specific abortion”. The British Medical Association, while having no legal authority, expressed the opinion in November 2013 that “there may be circumstances in which termination of pregnancy on the grounds of foetal sex would be lawful”. The General Medical Council has simply, perhaps wisely, stated that doctors must operate within the law.
A more authoritative statement came from the former Senior Crown Prosecutor and current Director of the Thomas More Legal Centre, Neil Addison, who said that British law actually permits sex-selective abortion “contrary to claims in Parliament and in the media”. He felt, however, that the CPS should have been more honest and should have admitted that there would have been no realistic prospect of conviction in the cases of the doctors investigated. He believed that if the decision had been taken to prosecute it would have made it uncomfortably obvious that “the Abortion Act is a moral and legal mess”.
The actual wording of the Abortion Act was then examined. Contrary to popular belief, abortion remains illegal in the UK. The Abortion Act describes specific circumstances under which abortions may be legally permitted. The UK abortion statistics, dating back to 1968 and available on a government website make sad but interesting reading. In 2012, a total of 185,122 “legal” abortions were carried out in England and Wales and 180,117 of these (97% of all such abortions) were carried out on the grounds that “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”. This is known as Statutory Ground C. Each year, 97-98% of all abortions in this country are performed on this basis. Essentially it means that the doctors authorising and carrying out the abortion are expressing a belief that the pregnant woman will suffer serious mental health problems if she does not have the abortion but allows the pregnancy to continue naturally. This practice has been allowed to continue unchallenged and abortion, on this basis, has become common, routine and accepted. Thus, if a pregnant woman should claim that she needs an abortion for fear that she might suffer mental distress due to the gender of the child for some cultural or other reason the doctors consulted might feel that this request was reasonable and that the child should be aborted. The really important question is “Is there evidence to support this practice?”
In all other areas of medicine doctors are expected to provide supportive evidence to justify their clinical decisions. If doctors do not practice according to best available evidence they are liable to face disciplinary actions from the General Medical Council and may face possible legal action for serious professional misconduct. They must be able to justify all clinical decisions with good supportive evidence.
In December 2011, an expert committee report, commissioned by the British Government and entitled “Induced Abortion and Mental Health” was published. This committee had been established to explore a possible link between abortion and mental health problems. It acknowledged that much of the evidence examined was biased and of poor quality. They managed, however, to reach some important conclusions. It was reiterated that the majority of abortions carried out in the UK “are done so on the grounds that continuing with the pregnancy would risk physical or psychological harm to the woman or child”. The review focused on women having a “legal” abortion for an unwanted pregnancy. Among the specific questions addressed were: “Are mental health problems more common in women who have an induced abortion, when compared with women who deliver an unwanted pregnancy? What does the evidence say?”
The conclusion from this expert committee is astonishing. They state: “When a woman has an unwanted pregnancy rates of mental health problems will be largely unaffected whether she has an abortion or goes on to give birth.” This statement should have rocked the medical world but, so far, has passed largely unnoticed. When examined closely, it confirms that 97-98% of abortions carried out in the UK each year, every year, are illegal. These are the abortions performed on the basis that the pregnant woman will suffer mental health injury if she does not abort her child. The experts in this area state that there is no evidence to support this practice. As noted earlier, Neil Addison describes this current situation as “a moral and legal mess.”
To return to the original question on whether or not abortion on the grounds of gender selection is legal in the UK, the following conclusions may be reached:
- According to current practice and ignoring the intention of the Abortion Act and proper application of the law the answer is Yes – it is legal;
- If the Abortion Act was applied as originally intended by legislators in 1967 and as supported by the majority of current parliamentarians the answer is probably No – it is not legal;
- If the Abortion Act was applied correctly and strictly according to medical and psychiatric evidence the answer is No - it is illegal. In fact, the vast majority of abortions are illegal under such circumstances.
Dr Dermot Kearney is a Consultant Cardiologist and President of the Newcastle Branch of the CMA