Explain and analyse the changes made to abortion law by The Human Fertilisation and Embryology Act 1990

Therefore, on this basis (and supported by the amendments in the HFEA 1990 at Appendix 2) an abortion will be approved so long as a medical practitioner acts in accordance with section 5(2) of the AA 1967 that, under section 1(1)(d)), (a) the prolongation of the pregnancy would involve risk to the woman’s life; (b) the cessation is important to prevent permanent physical or mental injury to the pregnant woman; (c) the prolongation of the pregnancy would involve risk of physical or mental injury to the pregnant woman; (d) the prolongation of the pregnancy would involve risk of physical or mental injury to health of any existing children; (e) there is a substantial risk the child born would be physically or mentally handicapped; (f) to save the life of the pregnant woman; or (g) to prevent grave permanent injury to the physical or mental health of the pregnant woman.

Nevertheless, the exceptions under the AA 1967 were then amended by section 37(1) of the HFEA 1990 (effected by Statutory Instrument 1991 (No. 480)) so a pregnancy can now be aborted if there is unanimous agreement between two doctors that it (a) puts the physical or mental health of the pregnant woman or any existing children of her family at risk ; (b) poses a permanent mental and physical risk to the woman; (c) puts the life of the mother at risk; and/or (d) there is evidence of a substantial risk of extreme physical or mental handicap to the unborn child.

On this basis, the HFEA 1990 contains one clause making some significant changes to our abortion law because there have been many attempts, since the AA 1967 was passed, to tighten up the law. Therefore, the HFEA 1990 looked to establish a limit of twenty-four weeks, as opposed to twenty-eight weeks, on the length of gestation within which abortions could be carried out under section 1(1)(a) of the 1967 Act. Moreover, at the same time the HFEA 1990 removed any time limit on abortions carried out so as “to prevent grave permanent injury to the physical or mental health of the pregnant woman”, when the continuation of the pregnancy would put the woman’s life at risk, or when the child would almost certainly be severely handicapped. Thus no offence under the 1929 Act is committed where there is a termination in accordance with the provisions of the 1967 Act. Furthermore, in view of the nature and scope of the legislation, the HFEA 1990 also allowed the selective reduction of multiple pregnancies.

It is clear the 1990 amendment was intended to make obtaining an abortion difficult. There are some who argue it is unethical for abortions to be restricted by the 24-week limit because such restrictions undermine the principle of autonomy, which states that no person should be forced to undergo medical procedures against their will. Hence, many argue, “it is problematic that a woman should remain pregnant and undergo childbirth out of an obligation to maintain the life of the foetus. Society does not impose this obligation even in respect of born children. There is no law that can obligate a person to undergo medical treatment in order to save the life of another person.”. However, it may be argued that in practice, the amendment has not made as much of an impact as was first envisaged. This is because only a minute proportion of abortions (approximately 1%) take place after the nineteenth week of pregnancy, whereas 88% of abortions take place during the first 12 weeks of pregnancy, and 60% within the first 9 weeks. Hence the introduction of a 24-week time limit for what is known as the ‘social’ ground has had minimal practical impact especially since, as Emily Jackson states, the IL(P)A 1929 had already been interpreted as imposing a 24-week time limit upon abortion. In addition, it is doctors who have the power to carry out an abortion if they believe the grounds in the Act are satisfied, rather than women having the right to demand one. Therefore, it is highly unlikely an abortion will be conducted for ‘social’ reasons after the sixteenth week of pregnancy.

It must be recognised that parental rights have also been an issue in cases where potential fathers have attempted to prevent an abortion in Paton v British Pregnancy Advisory Services and C v S.; where the ‘maternal focus’ of the abortion decision was strongly endorsed in spite of the man’s right to a family life, under Article 8(1) of the European Convention on Human Rights (‘ECHR’) 1950, but set aside under Article 8(2) prior to the enactment of the HFEA 1990. But, in C v S, the right to life (under Article 2 of the ECHR) was also questioned by the European Commission and adequate lung development, at around 24 weeks, was crucial to prevent the termination of a pregnancy as a criminal offence as a prelude to the HFEA 1990.

Nonetheless, it should be recognised that, in spite of the changes made to the law by the HFEA 1990, a sense of unease continues to prevail. A difficulty is the wide discretion afforded to medical professionals coupled with the ambiguity over the word ‘substantial’ in s1(1)(d) in that one doctor’s view of a substantial risk of serious handicap to an unborn child may be another doctor’s trivial risk. However all the doctor has to do to prove the legality of his decision in authorising the abortion will be to present the other doctor(s) who similarly opined in good faith; hence this is arguably synonymous with ‘Bolam’ test in negligence actions. Ethical issues rather than legal dilemmas are likely to be raised. Jepson v The Chief Constable of West Mercia Police Constabulary offered a timely opportunity for quiet introspection into considering the degree to which the law inappropriately elevated the role of medical professionals. This is illustrated by the fact that Grear argues:

“neither women’s rights nor potential foetal rights received adequate consideration in the framing of the Abortion Act 1967 and that the over-medicalisation of the issue, evident then and arguably present in the Jepson case, is now ripe for challenge”.

Accordingly, despite the changes made to abortion law by the HFEA 1990, there was still scope for improvement to the law because Grear’s view resulted from the Jepson case since she felt the exceptions under the AA 1967 were being overused where a foetus of more than 24 weeks gestation was being aborted, under section 1(1)(d) of the AA 1967, when it was diagnosed with a bilateral cleft lip and palate.  However, Ms Jepson (who was born with a facial abnormality that was later surgically resolved) argued this could not amount to a serious handicap and was, therefore, unlawful and was granted judicial review because “the case raises serious issues of law and issues of public importance”. Therefore, the role of medical practitioners under the HFEA 1990 was called into question because it was surmised that they had too much power as any ‘reductive medicalisation’ of abortion “will tend to recast the complex ethical dilemmas involved as questions of medical judgement, first and foremost” because “any reductive medicalisation of the abortion question will result in an incipient denigration of the rights of both women and the unborn”.

However, this position was actually further exacerbated by the nature and scope of the HFEA 1990 because, despite the changes that the legislation made, even leading into its actual enactment, several important issues were considered regarding the treatment and investigation of infertility; the diagnosis of inherited disorders; the regulation of fertility; and the investigation of human development and its disorders. Accordingly, Statutory Instrument 2000 (No. 188) was passed to amend section 2 of HFEA 1990 to allow the issue of licences for research involving embryos, whilst also allowing such knowledge to be applied in developing treatments for inherited diseases. Therefore, the HFEA 1990 was only serving to further strengthen medical practitioners’ positions because they not only had the power to take life away but also to grant it.

Conversely, however, it must also be recognised that the HFEA 1990 largely arose because it was deemed necessary to require a different way of thinking about embryos regarding the ‘primitive streak’ (i.e. the forerunner of the central nervous system about fourteen days after fertilisation that indicates the establishment of the individuality of the embryo that is not blighted) that led to further questions on the legality of abortions as scientists increasingly discovered further when life actually starts. These issues were debated in the UK Parliament throughout the legal passage of the HFEA 1990 so that, even though there are many clauses in the Act including changes to the Abortion Act 1967, the great bulk of the debate was actually spent on questions regarding embryos and reflections on ‘human experience’. Moreover, in keeping with this idea of the ‘sanctity of life’, the HFEA 1990 was designed specifically to ban ‘cloning’ to take one life for the sake of another, but it was not universally agreed by all Members of Parliament during parliamentary debates that embryos should be `sacrificed’ which makes the actions leading to the decision in Jepson all the more troubling.

Nevertheless, it must also be recognised that, for many, embryos in laboratories represent uncomfortable problems because there are fears of scientists becoming ‘out of control’ in all issues of humanity in life and in death. Therefore, there is now a thin line between what is good for humanity as we are now left with the dilemma of whether to favour one life or all life (perhaps most aptly illustrated by Re A (Children) (Conjoined Twins: Surgical Separation)). As a result, the HFEA 1990 has also made it so medical practitioners asked to provide fertility treatment must now “consider the welfare of any child that might be born as a result of the IVF treatment ... and any other child who might be affected by the birth” because they must consider (amongst other considerations) “the health of the parents; … [and] the effect of a new baby on any other children in the family”.

In conclusion, it is clear that, despite the fact that the OAPA 1861 is still in force, the law has moved on slowly over the last century and a half so that there are now legally recognised exceptions, under the AA 1967 and HFEA 1990 in particular, where the law allows the termination of the foetus in the interests of the mother, other children and the child itself when its quality of life is in question. It is arguable, however, that the 1990 Act has not provided any further practical exceptions in comparison to the 1967 Act. However, new problems have developed as science has advanced astronomically in the same period so that now the power and scope of medical practitioners’ ability to create life and take it away is once again being called into question, illustrated by Jepson, so the nature and scope of the law now needs to be re-evaluated. This is because, whilst we must act in the interests of life, it is becoming increasingly difficult to determine when one life should be placed ahead of another when we are now often ‘over-medicalising’ difficult situations where a more human touch is necessary both in medicine and the law.

Word count: 2584 plus bibliography.

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