The Crown Prosecution Service’s ruling that it would not be in the “public interest” to prosecute two doctors exposed in an undercover Daily Telegraph investigation into “sex selection” abortions has caused a predictable flurry of complaint from that newspaper, as well as from anti-abortion groups.
More worryingly, the Secretary of State for Health, Jeremy Hunt, argued: “We are clear that gender selection abortion is against the law and completely unacceptable”. Even some pro-choice politicians have stated that abortion over foetal sex is “illegal”. And the Christian Legal Centre now says it is preparing a private prosecution of the two doctors involved.
In all the heat generated by this story, we should remind ourselves what the British abortion law actually says about sex selection – which is, quite simply, nothing. The law is silent on the matter.
Many of those working in the abortion service find the practice ethically objectionable and might refuse to authorise an abortion. But it is not illegal, providing that the legal grounds are still met.
Foetal sex is not a specified ground for abortion within the Abortion Act 1967, but nor is it specifically prohibited. Other reasons for abortion that are widely accepted as “good” reasons – for example, if the woman has been raped – are not specified either.
The only thing that matters from a legal point of view is that an abortion of a foetus is authorised by two doctors, acting in good faith, on one (or more) of the following grounds (with each needing to agree that at least one and the same ground is met):
That the pregnancy has not exceeded its 24th week and that the 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 or any existing children of her family.
That the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.
That the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated.
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.
The CPS understands this point. In a statement issued on September 5, Deputy Chief Crown Prosecutor Jenny Hopkins said: “When looking at the culpability of the doctors in this case, we must take into account the fact that doctors are required to interpret the law and apply it to range of sensitive and difficult circumstances which are not set out in the legislation.”
“The evidence in this case was finely balanced and the law gives quite a wide discretion to doctors to determine when a risk to the health and well-being of a pregnant woman exists.”
She added: “Taking into account the need for professional judgement which deals firmly with wrongdoing, while not deterring other doctors from carrying out legitimate and medically justified abortions, we have concluded that these specific cases would be better dealt with by the [General Medical Council] rather than by prosecution.”
Doctors’ discretion forms the centrepiece of the 1967 act: there is no list of specific conditions under which women are permitted abortions. When making a decision to prosecute, the CPS is not about creating new legal standards for what is considered by some to be right and wrong; it’s about looking at the law as it is, and whether that law has been broken.
As the outcry following this story has shown, there are a number of people who wish that the law did explicitly ban abortion for reasons of gender. There are a number of others who would like abortion in general to be more heavily restricted.
They can argue these points if they want to, and thereby engage in an honest debate with those of us who consider that Britain’s abortion law works well; that sex selection is not a big problem in this country; and that “sting” operations by newspapers don’t constitute evidence of a problem with abortion, either in law or in practice.
What is objectionable, however, is the propensity for critics of abortion, or of “sex selection”, to pretend that the law says something it does not, and then to hound doctors on that basis. This shows a startling lack of respect for health professionals, the law, and the women who depend on them.