Although the requirement of S.1 (a) for terminations using mifepristone may seem overprotective, it can be argued that it is in fact the only middle ground that can be reached. In comparison to Ireland the Abortion Act can be seen as liberal alongside respecting women’s reproductive autonomy, compared to its illegality in Ireland. There are clear arguments as to why the Abortion Act is overprotective in the authorization of mifepristone, however, when compared with other jurisdictions (Michaelides:2000:5), many of which have similar legislation, it can be argued that the Abortion Act is the only feasible middle way between those completely opposed to abortion and those who believe that a woman’s reproductive autonomy should be protected.
Although a woman under 24 weeks pregnant does have to satisfy the requirements of S.1 (a) it’s clear that it is not a hard threshold to reach. Pregnancy and childbirth are always more dangerous than abortion. Alongside this, the mental wellbeing of a woman who does not want to be pregnant is, almost by definition, promoted by allowing her to have an abortion. Although the requirements are easily satisfied, it seems self contradictory to have the provision in place when a woman can easily satisfy them. The abolition of such a condition would prevent the stress and turmoil a woman has to go through hoping to secure a termination, and free up the valuable commodity of doctors time.
Alongside this, it’s not clear that doctors are in the best position to decide whether a pregnancy should be terminated (Jackson:2000:471). It has been argued that in fact the Abortion Act simply contains a legal fiction, that whilst in theory it is the doctors who make the decision whether termination should go ahead, in practice doctors simply give their approval for decisions that have already been taken by the woman herself. Despite this a woman is still dependent upon a doctors medical discretion (Jackson:2000:472). So whilst in practice women are making their own decisions, the dependency on a doctor reduces her ability to make autonomous decisions about her treatment. Therefore, as in reality women do make their own decisions and clinicians very rarely interfere with their right to do so (Jackson:2010:709) there seems to be little need other than satisfying the conditions of the Act for the doctor’s intervention.
Since Abortion is in practice available on request within the first thirteen weeks of pregnancy, it’s surely right to recognize that the application of the ‘social ground’ in relation to terminations using mifepristone is outdated. Even the BMA, have argued that the law should be reformed to permit abortion ‘on request’ during the first thirteen weeks, but that abortions after that date should either continue to be subject to the ‘two doctors’ requirement, or should be further restricted. (Jackson:2010:676). Undoubtedly, it is not desirable for the law and practice to diverge, this has created considerable uncertainty, with many women thinking that they have a right to Abortion within 24 weeks, who are then perplexed to realise that they have to satisfy S.1 (a) in order to have a termination.
The termination of pregnancy in such an early stage using mifepristone is a straight forward and common medical procedure (Department of health:1999b) and it has been estimated that between 35 and 40 per cent of all women will have at least one abortion during their lives (Furedi:1998; 161). It’s thus unclear why the law on abortion has remained unreformed since 1967. As Harris has argued we should be willing to accept a degree of social offence in order to protect our freedom in matters of reproductive autonomy (1999:90). Arguably, the law needs to be updated to be less overprotective in the use of mifepristone, as not only is it contradictory, the requirement for two doctors to agree to the termination is out of step with the domination of the principle of autonomy in medical law.
The availability of assisted conception is regard by most as a crucial advance in medical technology to allow involuntary infertile people to reproduce. As John Robertson suggests the ability to control when and whether to reproduce is central to personal identity (1994:24). The main controversy around assisted conception comes when single sex couples or single women wish to use assisted conception to cure their voluntary infertility. However, the moral reprehensibility of such cases is outside the scope of this essay.
It is the ‘welfare principle’ through which prospective children’s interests will be protected, through this clinicians have the opportunity to scrutinize those seeking access to assisted conception. It has been argued that the intention of parliament at the time was to reduce criticism for making assisted conception available to women without a male partner (Morgan & Lee:2001:164), however, MP’s stressed that it was the welfare of the child that was the real concern. Despite this, the inclusion of such a clause has undoubtedly placed patients wishing to use assisted conception under scrutiny by medical professionals who are not evidentially shown to be best placed to make decisions about their future parenting abilities. The inclusion of a welfare principle is perhaps under protective of potential children as medical clinicians cannot fully assess their suitability as parents, whilst at the same time is too ‘parental’ in that it interferes unnecessarily with patient’s reproductive autonomy.
Following this, the ‘welfare principle’ has been described as ‘an interference with infertile peoples negative liberty’ ,it has created a situation where those who are fertile have a zone of privacy protecting their reproductive autonomy whilst those who are infertile must relinquish this privacy (Jackson:2002:178). By doing so the law is undermining a person’s ability to control their life (Prialuz:2008:174). There is however a need for some protection of the unborn child, a less intrusive approach to the welfare principle could be used where the clinician is only assessing whether non-existence of this child would be better than existence, clearly, there will be few cases in which this is the case (Harris:2008:33), thus the reproductive autonomy of the ‘patients’ will be protected. However, this would not address the criticism that the current law is under protective of future children’s interests.
The current law involves clinicians taking into account several factors in order to come to a decision about the patient’s suitability as parents. The evidential proof of why and how the clinician is best placed to make this subjective decision is not seen. It would be inconceivable to put fertile couples and women who fall pregnant through the scrutiny of a ‘welfare principle’ test in order to carry the pregnancy to term. As Capron suggested, giving advice to a fertile friend wishing to reproduce who you do not believe is suitable is a completely different thing to allowing the judgement to be given legal effect (Capron:1997:665). Undoubtedly, we would not sterilise a fertile criminal, as to do such a thing would be to grossly invade their personal and bodily integrity (Jackson:2002:177). Thus, it’s hypocritical that the welfare of future children born by assisted conception is seen as critical when children are born every day from fertile couples who have undergone no scrutiny of their future parenting abilities.
Clinicians do not receive training or enough information about the ‘patients’ to make decisions about a child’s future. Taking adoption as an example, intense scrutiny of the couple, including home visits is used to discover the suitability of a couple to be parents (Lord:2006:Assessment Criteria) . Infertility clinicians on the other hand have little information available to them. Douglas has even suggested that S.33 of the HFEA, has led some clinicians to believe that they are prohibited from communicating with third parties about the suitability of the patient. With such little information, it’s hard to see how the welfare principle actually protects the interest of the future child (Douglas:1993:53). Although all future children do deserve to be brought into a loving environment, the inclusion of a welfare principle can never satisfy the extensive ways in which a child may be unhappy.
A particularly poignant comparison comes with ‘wrongful birth’ actions in tort law. The courts have made it clear in Mckay v Essex Area Health Authority, that the benefits of being brought into the world outweigh any disadvantages. This position does not sit well with the ability of medical professionals to make a judgement about the quality of life a future child would have if conceived. Ackner LJ stated that he was not prepared to undertake a balancing exercise between whether a child’s existence was in its best interests or not. It seems peculiar that the courts are unwilling to compare the value of a child’s existence yet the law requiring clinicians with little information to make such decisions is deemed ‘under protective’ of future children (Jackson:2002:202).
There is clearly merit in the inclusion of a welfare principle in order to protect future children. However, the current model places too much scrutiny on patients wishing to use assisted conception and is arguably used as a rationing tool for the NHS (Daniels:1985:79) rather than being specifically concerned with the welfare of the child. Pennings (1999) has suggested the use of a ‘reasonable welfare principle’ this would allow assisted conception where the child born will have a ‘reasonably happy life’. This would allow for patients autonomy to be respected whilst also providing a way of refusing treatment in extreme cases (). Thus, in one sense the HFEA does not provide adequate protection for future children born through the use of assisted conception, as clinicians are extremely unequipped to make such decisions, whilst at the same time the HFEA provides too much protection for future children as it interferes unnecessarily with patients reproductive autonomy.
Overall, it is arguable that the law is overprotective in requiring the full use of the abortion act in relation to the use of mifepristone for termination. There seems to be little evidence to show the benefits of placing women under the scrutiny two doctors for a simple procedure which is commonly approved. There is little purpose in S.1 (a) of the abortion act, creating the argument that the law needs to be brought up to date with social attitudes towards women’s reproductive autonomy. However, this is extremely unlikely as it’s for Parliament to reform the law, which it has yet to do since the Act was passed in 1967, alongside this, the current law is similar to that of many other countries, giving the argument that it is the only feasible way in which Abortion can be governed. At the same time, the law is too under protective of future children to be conceived through assisted conception, as S.13 (5) appears not to be concerned with the best interests of the child, but merely serves to restrict reproductive autonomy and place an undue burden on those who are infertile. There is no evidence to suggest that the inclusion of the welfare principle has any positive impact upon the wellbeing of future children. Despite this, if clinicians were given training and enough information such as the scrutiny of prospective parents undertaken during the adoption process, the principle may protect the wellbeing of future children.
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Ann Winterton MP asserted that ‘the interest of the child in matters of artificial insemination should be paramount’ (9) HC Deb Vol 174 Col 1021.
