Law, reproduction, and disability: Fatally 'handicapped'?

Medical Law Review

Volumn 21, Issue 2, 2013, Pages 213-242

  McGuinness, Sheelagh ^a  

^a UNIVERSITY OF BIRMINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ABORTION; ARTICLE; CONGENITAL DISORDER; DISABLED PERSON; ETHICS; FEMALE; FETUS; HUMAN; HUMAN RIGHTS; LEGAL ASPECT; PREGNANCY; UNITED KINGDOM;

ABORTION, EUGENIC; CONGENITAL ABNORMALITIES; DISABLED PERSONS; FEMALE; FETUS; GREAT BRITAIN; HUMAN RIGHTS; HUMANS; PREGNANCY;

EID: 84877933103     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fws041     Document Type: Article

References (141)

1. For example, Marsha Saxton, 'Why Members of the Disability Community Oppose Prenatal Diagnosis and Selective Abortion' in E Parens and A Asch (eds), Prenatal Testing and Disability Rights (Georgetown University Press, Washington 2000)
2. For a similar analysis on medical treatment and disabled minors, see Janet Read and Luke Clements 'Demonstrably Awful: The Right to Life and the Selective Non-Treatment of Disabled Babies and Young Children' (2004) 31 JL Soc 482-509
3. Kate Gleeson, 'Persuading Parliament: Abortion Law Reform in the UK' (2007) 22 Australas Parliament Rev 30-1
4. Hindell and Simms affirm this view in their analysis of lobbying at the time, see Keith Hindell and Madeleine Simms, 'How the Abortion Lobby Worked?' (1968) 39 Polit Q 269-82
5. Although it should be noted that some argue that such underpinnings were based on a lack of understanding of the safety of the procedure at the time. Diane Munday suggests that 'the anti-choice people had been fooled by their own propaganda' in 'The Abortion Act 1967', seminar held on 10 July 2001 (Institute of Contemporary British History, 2002), http://www.icbh.ac.uk/icbh/witness/abortion/.). [Hereafter 'The Abortion Act Seminar.]
6. Human Fertilisation and Embryology Act 2008 Schedule 2; Human Fertilisation and Embryology Authority 'Guidance Note 10: Embryo Testing and Sex Selection', http://www.hfea.gov.uk/docs/CoP8_section6_embryo_testing.pdf. accessed 5 September 2009.
7. Department of Health FOI Releases, http://www.dh.gov.uk/en/FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/DH_128012. [Hereafter 'Department of Health FOI Releases'].
8. Late Abortion: A Review of the Evidence: A briefing compiled by Pro-Choice Forum, http://www.prochoiceforum.org.uk/pdf/PCF_late_abortion08.pdf. [hereafter 'Late Abortion: A Review of the Evidence'] accessed 25 June 2011.
9. See for example the Jepson case in 2003: 'Curate wins abortion challenge', http://news.bbc.co.uk/1/hi/health/3247916.stm.
10. 'Police inquiry into late abortion', http://news.bbc.co.uk/1/hi/england/hereford/worcs/3632169. stm.
11. No charges in late abortion case', http://news.bbc.co.uk/1/hi/ england/hereford/worcs/4354469.stm.
12. 'CPS decides not to prosecute doctors following complaint by Rev Joanna Jepson', http://www.cps.gov. uk/news/press_releases/117_05/. accessed 16 July 2011.
13. Department of Health v The Information Commissioner [2011] EWHC 1430 (Admin)
14. 'Late Abortion: A Review of the Evidence', see above note 6
15. Jepson v The Chief Constable of West Mercia Police Constabulary [2003] EWHC 3318 (Admin)
16. See Munday, note 4, 50
17. Sally Sheldon provides an illuminating account of the discourses that reformists and anti-reformists used in order to gain support for their position in the lead up to the Abortion Act 1967 in Beyond Control: Medical Power and Abortion Control (Chapter 3 Pluto Press, London 1997)-'Tarts and Tired Housewives'
18. For an example of this argument being applied in other jurisdictions, see A Balantyne and others, 'Prenatal Diagnosis and Abortion for Congenital Abnormalities: Is It Ethical to Provide One Without the Other?' (2009) 9 Am J Bioethics 48-56
19. See Sheldon, above note 12
20. John Keown Abortion, Doctors and the Law (Cambridge University Press, Cambridge 1988)
21. Margaret Brazier and Suzanne Ost, Bioethics and Medicine in the 'Theatre' of the Criminal Process (Cambridge University Press, forthcoming), Chapter 4-'Protecting Life Before Birth'
22. Shelley Gavigan, 'The Criminal Sanction as It Relates to Human Reproduction: The Genesis of the Statutory Prohibition of Abortion' (1984) 5 J Legal Hist 20-43
23. See also 'A Dissertation by William Hunter on the Uncertainty of the Signs of Murder in the Case of Bastard Children' (19 Dec 1931) Br Med J 1143-4
24. Sally Sheldon and StephenWilkinson, 'Termination of Pregnancy for Reason of Foetal Disability: Are There Grounds for a Special Exception at Law?' (2001) 9 Med L Rev 85-109
25. Margaret Brazier, 'Embryos' Rights: Abortion and Research' in M Freeman (ed) Current Legal Problems (Stevens & Sons, London 1988) 10
26. See Gavigan, above note 15
27. Andrew Grubb, 'Abortion Law in England: The Medicalization of a Crime' (1990) 18 Law Med Health Care 146-51 at 147
28. Commentaries on the Laws of England
29. 'House of Commons Science and Technology Select Committee: Scientific Developments Relating to the Abortion Act 1967: Twelfth Report: Session 2006-2007', Volume 2 Ev 93
30. See Gavigan, above note 15
31. See Keown, above note 14, 27-32
32. Offences Against the Person Act 1861 ss. 58 and 59.
33. Royal College of Nursing v DHSS [1981] 2 WLR 279; Janaway v Salford Health Authority [1988] 3 All ER 1079 (HL)
34. Jane Fortin, 'Legal Protection for the Unborn Child' (1988) 51 Mod L Rev 54-83
35. See also Douwe Korff, 'The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights' (Council of Europe, 2006) which summarises the conclusions of the Court in Vo v France (Application No. 53924/00) [2004] 2 FCR 577 as follows: 'Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention (personne in the French text)'.
36. Celia Wells and Derek Morgan, 'Whose Foetus Is It?' (1991) 18 J Law Soc 431-47
37. [29(] Jan 1927) Lancet, p 237-refers to advice given in a British Medical Association Report the previous year that abortion was always against the interests of the State
38. Glanville Williams, 'Legal and Illegal Abortions' (1964) 4 Br J Criminol 557-69 at 556-7
39. See above note 18, 146-7
40. See also David Price, 'How Viable Is the Present Scope of the Office of Child Destruction?' (1987) 16 Anglo-American L Rev 233
41. See above note 28
42. See for example (1927) Br Med J 128
43. [1927(] Lancet 230-1
44. R v Bourne [1939] 1 K.B. 687.
45. Aleck Bourne, A Doctor's Creed; the Memoirs of a Gynaecologist (Gollancz, London 1962)
46. See above note 31
47. See Keown, above note 14, 70
48. See British Medical Journal, 25 April 1936, Suppl. p. 231.
49. 'The Law of Abortion' (1936) Lancet 1388-90
50. As reported in 'The Abortion Report' (17 June 1939) Br Med J 1248-51
51. See further 'Report Inter-departmental Committee on Abortion' (London, Her Majesty's Stationery Off., 1939).
52. See above note 28, 563
53. See Hindell and Simms, above note 3, 270; there was some concern that the falling birth rate was due at least partially to illegal abortion practice and so attempts need to be made to limit this-see HC Deb, 28 July 1938, cc3351- 466. Following the Birkett Committee Report, the Pharmacy and Medicines Act 1941 prohibited the general advertisement of remedies for procuring an abortion.
54. Hindell and Simms, above note 3, 270
55. See 'The Abortion Act Seminar', above note 4, where thalidomide is explicitly mentioned. In the BMJ rubella is also discussed-for example Mary D Sheridan, 'Final Report of a Prospective Study of Children Whose Mother's Had Rubella Early in Pregnancy' (29 August 1964) Br Med J 536-9.
56. JA Dudgeon and others, 'Further Serological Studies on the Rubella Syndrome' (18 July 1964) Br Med J 155-60; and ensuing commentary in 'Correspondence'
57. See Hindell and Simms, above note 3, 276
58. Gleeson, above note 3, 30-1
59. As reported in (6 October 1959) Br Med J 821
60. Madeleine Simms, 'Abortion Law and Medical Freedom' (1974) 14 Br J Criminol 118-31 at 119
61. Gleeson, see above note 3, 30-1
62. See above note 28
63. See Dilys Cossey, in 'The Abortion Seminar', above note 4
64. Evelyn Fisher, 'Correspondence' (20 April 1963) Br Med J 1089
65. It is interesting to note that, in Northern Ireland, where the Abortion Act 1967 does not apply and Bourne still provides the standard for abortion, most abortions that do take place take place on the grounds of foetal abnormality
66. See Marie Fox, 'The Case for Decriminalising Abortion in Northern Ireland' in Amel Alghrani, Rebecca Bennet & Suzanne Ost (eds) Bioethics, Medicine and the Criminal Law: The Criminal Law and Bioethical Conflict: Walking the Tightrope (Cambridge University Press, Cambridge 2012)
67. For an example of the view that such abortions were justified, see Julia Bell, 'On Rubella in Pregnancy' (14 March 1959) Br Med J 686-8
68. Although for counterviews, see the correspondence in subsequent editions of the journal responding to this article, particularly HC McLaren, 'On Rubella in Pregnancy' (4 April 1959) 921
69. This was part of broader desire on the part of many in the medical community to maintain as much discretion as possible with regard to abortion
70. See for example 'Legalized Abortion: Report by the Council of the Royal College of Obstetricians and Gynaecologists' (2 April 1966) Br Med J 850-4
71. 'Abortion Law Reform: Memorandum prepared by a Subcommittee of the Medical Women's Federation' (17 December 1966) Br Med J 1512-4
72. Derek Morgan, 'Abortion: The Unexamined Ground' (1990) Crim L Rev 687-94
73. ElizabethWicks and others, 'Late Termination of Pregnancy for Fetal Abnormality: Medical and Legal Perspectives' (2004) 12 Med L Rev 292
74. See above note 12
75. Although not everyone was of the view that this was the most appropriate 'treatment' (see Christina Streatfield's response to Evelyn Fisher's call for support of the ALRA in 'Correspondence' (1 June 1963) Br Med J 1479) or indeed legal (see R Lance Impey, 'Correspondence: German Measle and Abortion' (1 December 1956) Br Med J 1299)
76. See above note 10. [She discovered the case when studying the national abortion statistics.]
77. Rosamund Scott, 'Interpreting the Disability Ground of the Abortion Act' (2005) 64 Cambridge LJ 389
78. As quoted in Kristin Savell, 'Turning Mothers into Bioethicists: Late Abortion and Disability' in B Bennett, T Carney and I Karpin (eds), The Brave New World of Health (The Federation Press, Sydney 2008) 97
79. See above note 16, 107
80. Ellie Lee, 'Tensions in the Regulation of Abortion in Britain' (2003) 30 J Law Soc 533
81. See above note 61
82. See above note 16, 93
83. See Derek Parfit Reasons and Persons (Chapter 16 Clarendon Press, Oxford 1984)
84. See above note 16, 106-7
85. 'Department of Health FOI Releases', see above note 6
86. Margaret Brazier and Emma Cave, Medicine, Patients, and the Law (3rd edn Penguin, London 2007) 311-4
87. It is beyond the scope of this paper to provide a full account of the analogy between abortion and withdrawal of treatment. However, for an example of an argument framing abortion in this way see Frances Kamm, Creation and Abortion: A Study in Moral and Legal Philosophy (Oxford University Press, New York 1992).
88. It could be argued that 'there is an ethical (and ought to be a legal) difference between non-treatment and actively killing [the foetus]'. It is beyond the scope of this paper to provide a detailed rejection of the ethical and legal significance of the acts/omissions doctrine
89. John Coggon, 'On Acts, Omissions and Responsibility' (2008) 34 J Med Ethics 576-9
90. Further I think the challenge of illogicality would still hold, notwithstanding, the acts/omissions doctrine given the lower level of protection afforded to fetuses legally than is afforded to neonates
91. Rosamund Scott, Choosing Between Possible Lives: Law and Ethics of Prenatal and Preimplantation Genetic Diagnosis (Hart Publishing, Oxford and Portland, OR 2007) 128
92. See above note 2
93. 'Department of Health FOI Releases', see above note 6
94. Jeff McMahan, 'Paradoxes of Abortion and Prenatal Injury' (2006) 116 Ethics 625-55
95. It is interesting to note that the 'eugenic indication' in Lord Silkin's Bill (1966) made reference to the future child's 'reasonable enjoyment of life'
96. 'Critical Care Decision Making in Fetal and Neonatal Medicine' 9.16 (Nuffield Council on Bioethics, 2006), http://www.nuffieldbioethics.org/sites/default/files/CCD%20web%20version%2022%20June%2007%20(updated).pdf. accessed 25 July 2011. Thanks to an anonymous reviewer for suggesting the insertion of a 'quality of life' criterion.
97. Royal College of Paediatrics and Child Health, 'Witholding or Withdrawing Life Sustaining Treatment in Children: A Framework for Practice' (Royal College of Paediatrics and Child Health, 2004) pp. 10-11, http://www.rcpch.ac.uk/sites/default/files/Witholding.pdf. accessed 12 March 2012.
98. Jepson proposed criteria to be taken into account in assessing whether a disability was 'serious'. See above note 10. Relatedly it could be suggested 'uncertainty of prognosis pre-birth is a relevant distinguishing factor between termination of pregnancy and withholding treatment'. However, again I would suggest that any prognosis of future quality of life involves some epistemic uncertainty and this should not undermine making probabilistic estimations that are a necessary aspect of all medical treatment. I would like to thank an anonymous reviewer for this suggestion.
99. Before going on to discuss the parental interests interpretation of s.1(1)(d), it is important to note that parental interests ultimately amount to the interests of the pregnant woman given that the law is clear about the role of potential fathers in abortion decision-making-see X v United Kingdom (1981) 3 EHRR 244; C v S [1987] 1 All ER 1230. However, the language of parental interests is used in the literature.
100. John A Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, Princeton 1996)
101. Jonathan Glover, Choosing Children: the Ethical Dilemmas of Genetic Intervention (Oxford University Press, Oxford 2006)
102. See above note 73, 87
103. See above note 10, para 6
104. This line of reasoning is put forward by Morgan, see above note 53, 693
105. See also, 'Termination of Pregnancy for Fetal Abnormality in England,Wales and Scotland' (Royal College of Obstetricians and Gynecologists, 2010) 7
106. See above note 73, 122
107. Termination of Pregnancy for Fetal Abnormality in England,Wales and Scotland (Royal College of Obstetricians and Gynecologists, 1996) 7-8
108. See above note 36
109. See above note 53
110. Which eventually became the Abortion Act 1967
111. See above note 53; Stephen Brooke in 'The Abortion Act Seminar' above note 4
112. 'Sex-selection Abortion Claims Sparks Andrew Lansley Investigation' The Guardian (22 February 2012)
113. As was swiftly pointed out by academic commentators, it is not at all clear that such abortion are outside the remit of the Act given that it affords a 'wide discretionary power' to doctors on whether the situation meets the criteria for an abortion under s.1(1).
114. Rosemarie Garland Thomson, Extraordinary Bodies: Figuring Disability in American Culture and Literature (Columbia University Press, New York 1997) 6
115. Jackie Leach, Scully Disability Bioethics: Moral Bodies, Moral Difference (Rowman & Littlefield, 2008) 22-32
116. 'Late Abortion: A Review of the Evidence' see above note 6
117. Emily Jackson, 'Abortion, Autonomy and Prenatal Diagnosis' (2000) 9 Soc Legal Stud 467-94
118. An allusion to Lord Donaldson in Re T [1992] 3 WLR 782
119. See above note 97, 481
120. See above note 15
121. Adrian Whitfield, 'Common Law Duties to Unborn Children' (1993) 1 Med L Rev 28-52
122. And this certainly seems to be the view of many within the disability rights community. The possibility of a claim under the European Convention of Human Rights (under a.14 in conjunction with a.2) while unclear is at least arguable-thanks to an anonymous reviewer for this point.
123. Adrienne Asch, 'Why I Haven't Changed My Mind about Prenatal Diagnosis: Reflection and Refinements' in Parens and Asch, above note 1, 236
124. John Robertson, 'Reproductive Liberty and the Right to Clone Human Beings' (2000) 913 Ann N Y Acad Sci 200
125. Thanks to an anonymous reviewer for suggesting this to me
126. See further Amy Sullivan, 'A time to choose: how democrats starting losing the abortion debate', http://www.washingtonmonthly.com/features/2003/ 0312.sullivan.html. accessed 19 March 2012.
127. Janet Hadley, 'Prenatal Tests: Blessings and Burdens' in E Lee (ed), Abortion Law and Politics Today (MacMillan Press Limited, London 1998) 173
128. See also Erik Parens and Adrienne Asch, 'Special Supplement: The Disability Rights Critique of Prenatal Genetic Testing Reflections and Recommendations' (1999) 29 The Hastings Center Report S1-S22
129. See above note 73, 93
130. See Parens and Asch in above note 102, S4
131. See above note 95, 2
132. Sarah Franklin, Born and Made: An Ethnography of Preimplantation Genetic Diagnosis (Princeton University Press, Princeton 2006)
133. On the idea of 'regulatory heritage', see Elen Stokes, 'Something Old, Something New, Something Borrowed: Emerging Health Technologies and the Continuing Role of Existing Regulations', in Mark Flear and others (eds) European Law and New Health Technologies (Oxford University Press, Oxford 2013, forthcoming)
134. See above note 95, 32
135. Anne Morris and Severine Saintier, 'To Be or Not to Be: Is That The Question? Wrongful Life and Misconceptions' (2003) 11 Med L Rev 167-93
136. Ruth Hubbard, 'Abortion and Disability: Who Should and Who Should not Inhabit theWorld?' in LJ Davis (ed), The Disability Studies Reader (Routledge, New York; 2010) 195-6
137. Robin Mackenzie, 'From Sanctity to Screening: Genetic Disabilities, Risk and Rhetorical Strategies in Wrongful Birth and Wrongful Conception Cases' (1999) 7 Fem L Stud 171-2
138. See above note 16, 102
139. See above note 2; above note 115
140. Anne Morris, 'Selective Treatment of Irreversibly Impaired Infants: Decision-making at the Threshold' (2009) 17 Med L Rev 347-76
141. See above note 61, 400