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

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

To begin with, it is important to consider, the law in this area was first considered to have been effectively codified under the Offences Against the Person Act (‘OAPA’) 1861. This is because the OAPA 1861 provided abortion (regardless of reasons), through the unlawful administration “of any poison or other noxious substance”, was considered criminal under section 58 of the Act punishable with a term of imprisonment ranging from three years to life imprisonment. It is further supplemented by section 59 which prohibited the supply or procurement of poison or instruments to commit a criminal abortion under section 58. However, despite the passing of time and changing attitudes within our society, the OAPA 1861 is still in force and so the statutes that have followed since (including the Human Fertilisation and Embryology Act (‘HFEA’) 1990), therefore, sought to provide legal exceptions where abortions can be carried out without fear of reprisals and their impact can be judged by these exceptions.

Therefore, with this in mind, the Infant Life (Preservation) Act (‘IL(P)A’) 1929 looked to supply the first exceptions in this area as it amended the OAPA 1861 so that an abortion would not be considered a crime where it was carried out to prolong the health and life of the mother. But, set against this, under section 1 of the IL(P)A 1929, the ‘felonious’ offence of child destruction was created as it was still illegal to kill a child capable of being born alive at 28 weeks or more with a “wilful act” unless it was done in ‘good faith’ under section 1(2) in keeping with the aforementioned sections 58 and 59 of the OAPA 1861 because, in such cases, both Acts applied.

However, problems were also raised regarding whether abortions should be allowed when the threat to the mother’s health was mental, discussed in R v Bourne, where the law was interpreted Justice Macnaghten to incorporate the 1929 Infant Life (Preservation) Act, and he directed the jury that an abortion may be lawful if it was done in good faith to preserve the life of the mother. He also denied that this provision required the threat of immediate death: if the doctor deliberated that the continuation of the pregnancy would adversely affect the woman’s physical or mental capacity, the jury was entitled to take the view that the doctor had operated for the purpose of preserving the life of the mother.

This interpretation was then broadened in R v Newton & Stungso an abortion was unlawful unless it was made in good faith for the purpose of preserving the life or health of the woman. Health meant both her physical health and mental health. The ‘Bourne Defence’ (or ‘defence of necessity’) that had evolved in common law meant an abortion could be performed in good faith to safeguard the life and health of the mother despite the fact law having made no such exceptions at the time.

The Abortion Act (‘AA’) 1967 was created because of the continuing fear regarding ‘back alley’ abortions and the lack of clarity regarding when a medical professional (doctors and nurses – see Royal College of Nursing of UK v DHSS [1981] AC 800) might legally abort a child. Accordingly, under section 1(1) of the AA 1967, the medical termination of a pregnancy was allowed under the law “when a pregnancy is terminated by a registered medical practitioner if two registered practitioners are of the opinion, formed in good faith…” that certain circumstances apply, notably section 1(1)(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”, whilst medical practitioners were also given the right to ‘conscientiously object’. However, in spite of the right to ‘conscientiously object’, the ‘good faith’ aspect of the AA 1967 was examined in R v Smith where the abortee testified the defendant had not examined her intentionally, nor asked her any questions as to her medical history and nor was there any evidence the defendant had arranged for her to see a second doctor.

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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 ...

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