Interpreting the disability ground of the abortion act

Cambridge Law Journal

Volumn 64, Issue 2, 2005, Pages 388-412

  Scott, Rosamund ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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[No Author keywords available]

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EID: 28644437848     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197305006902     Document Type: Article

References (120)

1. [1979] Q.B. 276, 282.
2. E.g. C v. S [1988] Q.B. 135, 153.
3. [2003] EWHC 3318.
4. For accounts of these developments, see e.g. “Cleft Lip Abortion to be Investigated”, The Guardian, 17 April 2004
5. “Curate Postpones Cleft Palate Late Abortion Action”, The Daily Telegraph, 9 May 2004
6. see C. Dyer, “Doctor who Performed Late Abortion Will Not be Prosecuted” (2005) 330 B.M.J. 668.
7. See e.g. S. Sheldon, “Who is the Mother to Make the Judgment?: The Construction of Woman in English Abortion Law”, (1993) 1 Fem. Leg. Stud. 3
8. S. Sheldon, “The Law of Abortion and the Politics of Medicalisation”, in J. Bridgman and S. Millns (eds.), Law and Body Politics: Regulating the Female Body (Aldershot 1995) 105
9. E. Jackson, “Abortion, Autonomy and Prenatal Diagnosis” (2000) 9(4) Social and Legal Studies 467.
10. R v. Smith (1974) 58 Cr. App. R. 106, in which a doctor was convicted for lack of good faith in authorising an abortion under s. 1(1)(a) of the Act.
11. On medical assessments of disability in this context, see e.g. T. Shakespeare, “ ‘Losing the Plot?’ Medical and Activist Discourses of Contemporary Genetics and Disability” (1999) 21:5 Sociology of Health and Illness 669, 678.
12. GMC, “Confidentiality: Protecting and Providing Information”, April 2004.
13. RCOG, Termination of Pregnancy for Foetal Abnormality in England, Wales and Scotland (January 1996) para. 3.2.1.
14. Termination of Pregnancy for Foetal Abnormality in England, Wales and Scotland.
15. Termination of Pregnancy for Foetal Abnormality in England, Wales and Scotland.
16. RCOG, Termination of Pregnancy, para. 3.4. The guidelines go on to note the World Health Organisation's definition of health as “… a state of physical, mental and social wellbeing and not merely an absence of disease or infirmity”. The RCOG guidelines continue: “In determining whether there is a risk to mental health in a particular pregnancy the medical practitioners have to identify factors in the woman's life and personality that would threaten her mental health if the pregnancy were to continue: they do not have to certify that she has a mental illness.”
17. Mr. Frank Doran, Hansard, 21 June 1990, vol. 174, col. 1187.
18. Hansard. Miss Ann Widdecombe, col. 1190.
19. Hansard. col. 1201.
20. RCOG, Termination of Pregnancy, para. 3.3.1
21. Termination of Pregnancy. Point 3: “Assisted performance. Includes the need for a helping hand (ie: the individual can perform the activity or sustain the behaviour, whether augmented by aids or not, only with some assistance from another person.” Point 4: “Dependent performance. Includes complete dependence on the presence of another person (i.e: the individual can perform the activity or sustain the behaviour, but only when someone is with him most of the time).”
22. Termination of Pregnancy. para. 3.3.
23. J. Harris, “Is There a Coherent Social Conception of Disability?” (2000) 26 J.M.E. 95, 97
24. citing S. Reindal's interpretation of Harris in the former's, “Disability, Gene Therapy and Eugenics-a Challenge to John Harris”, (2000) 26 J.M.E. 89.
25. T. Shakespeare, “Choices and Rights: Eugenics, Genetics and Disability Equality”, (1998) 13/5 Disability and Society 665, 665
26. (citing M. Oliver, The Politics of Disablement (Basingstoke 1990)).
27. HFEA and HGC, Outcome of the Public Consultation on Preimplantation Genetic Diagnosis, 18 June 2001, Rec. 15. The concern about discrimination, however, is not analysed either in this document or in the minutes of background meetings prior to the publication of this document.
28. Harris, “Is There a Coherent Social Conception of Disability?”, 95.
29. Shakespeare, “Choices and Rights”, 670.
30. D. Wertz and J. Fletcher, “A Critique of Some Feminist Challenges to Prenatal Diagnosis”, 175
31. as cited in B. Steinbock, “Disability, Prenatal Testing and Selective Abortion”, in E. Parens and A. Asch (eds.), Prenatal Testing and Disability Rights (Washington, DC 2000) 108, 115.
32. For legal reference to the difficulties of doing so, see McKay v. Essex A.H.A. [1982] Q.B. 1168.
33. For philosophical discussion, see e.g. J. Feinberg, “Wrongful Life and the Counterfactual Element in Harming”, in J. Feinberg, Freedom and Fulfillment: Philosophical Essays (Princeton 1992) 6
34. A. Buchanan, D. Brock, N. Daniels, D. Wikler, From Chance to Choice: Genetics and Justice (Cambridge 2000) 224 ff.
35. For the view that abortion may be morally required, see J. Glover, Causing Death and Saving Lives (Harmondsworth 1977) 146.
36. P. Alderson,“Prenatal Counselling and Images of Disability”, in D. Dickenson (ed.), Ethical Issues in Maternal-Foetal Medicine (Cambridge 2002) 195, 201.
37. Ethical Issues in Maternal-Foetal Medicine. 208.
38. The point has been well made by S. Edwards, in “Prevention of Disability on Grounds of Suffering” (2001) 27 J.M.E. 380.
39. The classic statement of this view is likely found in J. Robertson, “Genetic Selection of Offspring Characteristics” (1996) 76 Boston U. Law Rev. 421, 445.
40. See e.g. Buchanan et al., From Chance to Choice
41. J. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton 1994), and n. 34 above
42. B. Steinbock, “Disability, Prenatal Testing and Selective Abortion”, 108, 118, 119
43. J. Botkin, “Line Drawing: Developing Professional Standards for Prenatal Diagnostic Services”, in Parens and Asch (eds.), Prenatal Testing and Disability Rights, 288
44. “Foetal Privacy and Confidentiality” (1995) 25(5) Hastings Center Report, 32. From a disability interests' perspective
45. see e.g. Shakespeare, “Choices and Rights”, 672.
46. See Botkin, “Line Drawing”, 300–301 for a discussion of the possible kinds of impact on parents.
47. See C. Williams, P. Alderson and B. Farsides, “ ‘Drawing the Line’ in Prenatal Screening and Testing: Health Practitioners' Discussions”, (2002) 4(1) Health, Risk and Society 61, 73, for discussion of the value of this.
48. For observations as to the inadequacies of current counselling services, see Shakespeare, “Losing the Plot”, 676. He also observes, at 685, that “[d]ecisions about screening should be based on good information: rather than evaluating screening programmes in terms of those who undergo tests and terminations, programmes should be evaluated in terms of the proportion of people who were empowered to make an informed choice”
49. For consideration of the information provided in relation to Down's syndrome, see C. Williams, P. Alderson and B. Farsides, “What Constitutes ‘Balanced Information in the Practitioners’ Portrayals of Down's Syndrome?”, (2002) 18 Midwifery 230.
50. For a detailed discussion of the ways in which information-giving in this context should be developed, see B. Bowles Biesecker and L. Hamby, “What Difference the Disability Community Arguments Should Make for the Delivery of Prenatal Genetic Information”, in Parens and Asch (eds.), Prenatal Testing and Disability Rights, 340.
51. For one view of such conditions, see A. Asch, “Can Aborting ‘Imperfect’ Children be Immoral?”, from A. Asch, “Real Moral Dilemmas”, Christianity and Crisis, 46(10) 237.
52. Reprinted in J. Arras and B. Steinbock, Ethical Issues in Modern Medicine, 5th edn. (New York 1998), 384, 386: “Down's syndrome, spina bifida, cystic fibrosis, or muscular dystrophy cause degrees of impairment ranging from mild to severe, the degree indeterminable at the time of prenatal diagnosis. …”
53. The essays resulting from this study are collected in Parens and Asch (eds.), Prenatal Testing and Disability Rights.
54. HGC, Response to the Human Fertilisation and Embryology Authority on the Consultation on Preimplantation Genetic Diagnosis, para.6.
55. Botkin, “Line Drawing”, 300, likewise notes this.
56. On the link between interests and sentience, see B. Steinbock, Life Before Birth (New York: 1992) 24, n. 24.
57. On the notion of interests, see J. Feinberg, Harm to Others (New York 1984) 34: “In general, a person has a stake in X… when he stands to gain or lose depending on the nature or condition of X.”
58. A possible concern that “that's not all that's wrong with [the] baby…” was noted by a midwife quoted in C. Williams et al., “ ‘Drawing the Line’ in Prenatal Screening and Testing”, 68.
59. D. Wertz, “Drawing Lines: Notes for Policymakers”, in Parens and Asch (eds.), Prenatal Testing and Disability Rights, 261, 263 ff discusses the difference of views amongst practitioners as to what is serious.
60. [2003] EWHC 3318, para. [12].
61. G. Williams, Textbook of Criminal Law, 1st edn. (London 1978), 256.
62. S. Sheldon and S. Wilkinson, “Termination of Pregnancy for Reason of Foetal Disability: Are There Grounds for a Special Exception in Law?”, (2001) 9 Med. Law Rev. 85.
63. D. Morgan, “Abortion: the Unexamined Ground” [1990] Crim. L.R. 687 692.
64. By comparison, see in particular the US cases which reject the wrongful birth action, e.g. Schloss v. Miriam Hosp., No. C.A. 98–2076, 1999 WL 41875, at 4 (R.I. Super. Ct. Jan.11, 1999): “These cases are not about birth, or wrongfulness, or negligence, or common law. They are about abortion.”
65. See also Dansby v. Thomas Jefferson University Hospital, 623 A.2d 816 (Pa. Super. 1993) 821
66. per Wieand J.: “The protection of foetal life has been recognised to be an important state interest. The legislature's expressed concern is to prevent lawsuits leading to eugenic abortions of deformed or unwanted children.”
67. In the United States, the catalyst for these cases was the leading abortion decision in Roe v. Wade (1973) 35 L.Ed.2d 147.
68. See R. Scott, “Prenatal Screening, Autonomy and Reasons: The Relationship between the Law of Abortion and Wrongful Birth”, (2003) 11 Med. L. Rev. 265.
69. [1991] 1 Q.B. 587. The case concerned a failure to diagnose spina bifida and the legality of an abortion under the unamended Abortion Act 1967, in which the foetal disability ground of the Act was subject to time limits.
70. (2000) 56 B.M.L.R. 39, 48, my emphasis. This point is made in conjunction with a discussion of damages.
71. Newman J. also observes: “The existence of the Act is sufficient to introduce into the relationship between the health authority responsible for a pregnancy and the parents, a duty to take reasonable steps to ensure the parents can exercise their choice under the Act”: 56 B.M.L.R., 50.
72. 56 B.M.L.R., 40.
73. 56 B.M.L.R., 45. He added: “[T]he quality of her life, her ability, her personality and her potential have incalculable value.” In part, the evidence was: “Where everyday life skills are concerned K is likely to be a very competent young woman with Down's Syndrome, to be capable of living with some degree of independence, and even of being employed at a simple level… She is however very unlikely ever to be able to live entirely independently; to marry, or to bring up children. She will need care and supervision for the rest of her life.”.
74. (56 B.M.L.R., 43)
75. [2002] Q.B. at 266, 383. The reference to “severe learning difficulties” is at 271.
76. Q.B., at 293: “[H]ow disabled does the child have to be for the parents to be able to make a claim? The answer is that the law has for some time distinguished between the ordinary needs of ordinary children and the special needs of a disabled child.” She goes on to refer to statutory criteria.
77. Note also Lord Steyn in MacFarlane v. Tayside Health Board, [2000] 2 A.C. 59, 84, who observed: “[C]ounsel for the Health Board was inclined to concede that in the case of an unwanted child who was born seriously disabled the rule may have to be different. There may be force in this concession but it does not arise in the present appeal and it ought to await decision where the focus is on such cases.”
78. [2000] 2 A.C. 59.
79. (2000) 56 B.M.L.R. 39, 57, my emphasis.
80. [1993] 1 All E.R. 651.
81. [2000] 2 A.C. 59, 114.
82. [2004] 1 A.C. 309.
83. 1 A.C., 317.
84. (2000) 56 B.M.L.R. 39, 48, my emphasis.
85. See e.g. Shakespeare, “Losing the Plot”.
86. HFEA and HGC, Outcome of the Public Consultation on Preimplantation Genetic Diagnosis, Rec. 11.
87. The recommendation goes on to state that “information provided to those seeking treatment… should include genetic and clinical information about the specific condition; its likely impact on those affected and their families; information about treatment and social support available; and the testimony of families and individuals about the full range of experiences of living with the condition”. Curiously, a somewhat puzzling variation of the point in Rec.14 can be found in the Summary of the responses to the Consultation Document which at one point observes that “80% agreed that the seriousness of a genetic condition should be a matter of clinical judgment based on general guidance”. HFEA/HGC, Analysis of the Responses to the Joint HFEA/AGCT Consultation on PGD, para. 56(iv), my emphases.
88. Smith v. Barking, Havering and Brentwood H.A. (1994) 5 Med. L.R. 285. Fears of fraud are often expressed in conjunction with hostility to the wrongful birth action.
89. See e.g. K. Wilcoxon, “Statutory Remedies For Judicial Torts: The Need for Wrongful Birth Legislation” (2001) 69 U. of Cincinnati Law Rev. 1023, 1040.
90. For a critique of the requirements of causation in the US context and suggestions for reform, see S. Ryan, “Wrongful Birth: False Representations of Women's Reproductive Lives” (1994) 78 Minnesota Law Rev. 857, 907.
91. [2003] EWHC 3318, para. [8].
92. (1981) 3 E.H.R.R. 244.
93. E.H.R.R., para. [59].
94. E.g. by L. Doswald-Beck, “The Meaning of the ‘Right to Respect for Private Life’ ”, (1983) 4 H.R.L.J. 283, 291
95. D. Feldman, “Privacy-related Rights and their Social Value”, in P. Birks (ed.) Privacy and Loyalty (Oxford 1997), 15.
96. (1981) 3 E.H.R.R. 244, para. [1].
97. Respectively [1987] 1 All E.R. 1230, in which a man sought to prevent his girlfriend having an abortion
98. [1988] 2 All E.R. 193, in which the Court of Appeal decided that it could not make the foetus a ward of court in response to a local authority's concerns about the lifestyle and mental condition of its mother.
99. The cases in which a woman refuses a caesarean section are here in point. See e.g. Re M.B. (Adult: Refusal of Medical Treatment) (1997) 8 Med. L.R. 217.
100. (1981) 3 E.H.R.R. 408. Article 2(1) states: “Everyone's right to life shall be protected by law.”
101. Of the decision F.G. Jacobs and R.C.A. White observe: “It is difficult to conclude other than that the Commission was anxious to sidestep a controversial case.” The European Convention on Human Rights, 2nd edn. (Oxford 1996), 43. They also note, however, the lack of consensus amongst Member States of the Council of Europe on the moral and legal issues surrounding abortion.
102. R.H. v. Norway, Appl. no. 17004/90 (1992) extended Paton to abortions for social rather than health reasons.
103. Judgment of 8 July 2004, Appl. no. 53924/00.
104. Appl., para. [46].
105. Appl., para. [81].
106. Appl., para. [80].
107. Appl. (citing Brüggemann (1981) 3 E.H.R.R. 244).
108. In deciding this point, the Court noted both that the issue had not been decided in most of the Contracting States (including in France, which was currently debating the issue in other contexts) and that “there is no European consensus on the scientific and legal definition of the beginning of life”. Appl. para. [82].
109. Appl., para. [84]. The relevant passage is a little unclear.
110. Appl., para. [85].
111. Appl., It rejected her argument that Article 2 required a criminal remedy, noting that “if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case”. Appl. para. [90]. In this case, the applicant could have brought an action in negligence. Appl. para. [91]. Further, that an administrative law action was statute-barred was considered reasonable, since the right of access to courts is not absolute: Appl., para. [92].
112. Ireland v. United Kingdom (1978) 2 E.H.R.R. 25, para. [167].
113. V. Glover and N.M. Fisk, “Foetal Pain: Implications for Research and Practice” (1999) 106 British J. of Obstet. and Gyn. 881, 884.
114. British J. of Obstet., 885.
115. British J. of Obstet. 884.
116. On abortion and foetal pain, see RCOG, Termination of Pregnancy, para. 5.3.
117. On the lack of a time-limit to s. 1(1)(d) of the Act, see Hansard, 21 June 1990, vol. 174, col. 1198, e.g. per Ms. Richardson: “Some handicaps are so severe that the foetus cannot survive. In a dramatic case, the brain or some other vital organ may be missing.” She also observes: “There is no evidence that doctors have ever performed late abortions for trivial reasons.”
118. RCOG, A Consideration of the Law and Ethics in relation to Late Termination of Pregnancy for Foetal Abnormality, Report of the RCOG Ethics Committee (RCOG Press, March 1998) para. 7.4.
119. For further discussion, see R. Scott, Rights, Duties and the Body: Law and Ethics of the Maternal-Foetal Conflict (Oxford 2002) ch. 1.
120. Williams et al., “ ‘Drawing the Line’ in Prenatal Screening and Testing”, 66.