There is a long standing debate surrounding the ethics of both abortion and assisted conception. The moral reprehensibility of both, although touched on, are outside the ambit of this essay. The purpose of this essay is to assess the current law. Under S. 1 (a) of the Abortion Act 1967 an abortion can be carried out up to 24 weeks on the grounds that carrying the pregnancy to term would damage the physical or mental health of the woman. As mifepristone can only by used up to 8 weeks of pregnancy (Grubb:1961:669), and deformities or disabilities in the foetus cannot be recognised at such an early stage, it is S.
1 (a) of the Act that the use of mifepristone may be authorized. Thus, the essay is focused on S. 1 (a) and whether the full application of the section in relation to the use of mifepristone is overprotective. Throughout the essay, it is presumed that a foetus under 24 weeks is not viable and that whilst it is accepted that a foetus does have some moral status it is not exactly the same as a person (Dworking:as cited in Jackson:2010:662) thus the ethical debate around the life and value of a foetus shall be left untouched.
I also accept that assisted conception techniques are a valid medical procedure that should carry on. The current law on assisted conception is governed by the HFEA 1990 under which clinics are authorized to carry out assisted conception. It is S. 13 (5) of the act which protects the welfare of future children, the discussion of whether the current law of assisted conception is under protective of future children will focus on this section and its practical use.
The Abortion Act is rooted in a paternalistic attitude towards women, this was evidently an advantageous political strategy in 1967 (Jackson:2002:471),however, it’s now increasingly recognized that ‘to fail to respect the autonomy of competent people is to inflict harm on them that is just as morally unacceptable as direct harm'(Doyal:1998:1000). This increasing recognition has seen judgements clarifying and broadening the scope of a patient’s right to make decisions about their medical treatment.
It can be argued that it is disingenuous to allow patients to refuse life saving treatment on the grounds of respecting their autonomy whilst not allowing women to choose to terminate a pregnancy. As the decision of the Court of Appeal in St George’s Healthcare NHS Trust v S1 recognises, a woman’s pregnancy does not remove her ability to decide whether to undergo medical treatment (At 957).
The judgement suggests that the courts may be moving further towards a reluctance to impose the full force of the Abortion Act upon women who are under 24 weeks pregnant, however as abortion is such a volatile topic, it’s not for the courts to propose reform, it is for Parliament. Although St George’s suggests that the law on abortion interferes with medical law’s focus on autonomy and is overprotective, the courts are unable and unwilling to reform the law of abortion.
Alongside the paternalistic attitude of the Abortion Act, the grounds given are ambiguous, unlike many other countries; reasons such as rape or incest are not specified. This ambiguity was undoubtedly deliberate, presumably to give the courts some room for discretion. As at the time of passing the Act it was feared that a definitive list of circumstances in which abortion is legitimate may give women the impression that in certain instances abortion would be an entitlement (Keown:1988:90).
Arguably, in certain circumstances it would be morally acceptable for a woman to have a right to termination, such as pregnancies resulting from rape. In this sense, the requirement of the full protection of the Abortion Act is over protective, as even many who are opposed to Abortion have few ethical problems with allowing such a woman to terminate her pregnancy in the first eight weeks using mifepristone. 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.