Why the Abortion Act deserves to live

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Created on Sunday, 15 April 2012 00:00

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Why the Abortion Act deserves to live

The 1967 Act is a delicate compromise that has survived nearly half a century

Daniel Sokol

"The problem with ethics", laments the medical student, "is that there is no right answer". In the days when I taught the ethics of abortion, this was a familiar grumble. After an hour listening to the 'sanctity of life' argument, the 'slippery slope' argument, the 'potentiality' argument, the 'feminist' argument, the 'right-based' argument, and myriad other arguments for and against abortion, most students left the lecture scratching their heads. Of course, for some, the answer was crystal clear: abortion is murder most foul of a helpless human being; for others, such as Professor Sally Sheldon, who wrote for Guardian Law last month, abortion is the denial of female autonomy "in this most personal of decisions" and to hell with doctors telling women what to do with their bodies.

For the majority of students, however, the issue was morally opaque. They felt uneasy at the woman who sought an abortion to maintain a svelte figure for a beach holiday or who aborted out of preference for a baby boy rather than baby girl; sympathetic to the 14-year-old rape victim; and protective of the mother whose life would be put at risk by the unborn child.

Yet, while philosophers, academics and students may ponder the moral status of the foetus, the issue of infanticide, and other intellectual puzzles, the law enjoys no such luxury. Rooted in the real world, it must reach a pragmatic way to resolve the tension between the rights of the pregnant woman and the rights of the unborn child.

Three key dates in the modern law of abortion are 1861, 1929 and 1967. The Offences Against the Person Act 1861 made it a criminal offence to procure the miscarriage, self-induced or otherwise, of a foetus. The Infant Life (Preservation) Act 1929 introduced the offence of child destruction or causing the death of a child capable of being born alive "before it has an existence independent of its mother". No offence was committed, however, if the person caused the child's death, in good faith, for the sole purpose of saving the mother's life. Then Parliament begat the Abortion Act 1967, which provided a defence to the offences under the 1861 and 1929 Acts. The new Act regulated abortion by requiring two doctors, in good faith, to check whether one of four statutory grounds was satisfied, stipulating time limits for abortion, dictating who could perform them, where they should take place, how they should be recorded, and so on. The Act also contains a conscientious objection clause, allowing objectors to dissociate themselves from the practice, except in an emergency where the pregnant woman is at risk of death or grave permanent injury.

Although 45 years old, the Abortion Act, amended by the Human Fertilisation and Embryology Act 1990, remains a victim of bullying. Professor Sheldon hurled another stone when she criticised the Act for its paternalism. Why, she wrote, should doctors "remain formally charged with making abortion decisions"?

When working as a clinical ethicist, I came across a young man who was admitted to hospital with a perforated bowel. He was otherwise in good health. When invited to consent for life-saving surgery, he declined all treatment without giving reasons for his refusal. No amount of persuasion, from the medical team or his relatives, could change his mind. Deemed competent by psychiatrists, he was allowed to die. In the UK, the principle of respect for autonomy allows competent adults to refuse any treatment, even if fatal. So why is the autonomy of women restrained in the area of abortion? The answer, of course, is that abortion affects a third party: the foetus. Unlike a mole or cyst, the fetus enjoys some measure of legal protection. Another difference is that abortion requires the assistance of clinicians, either through the prescription of a potent drug or surgery. It is not a matter of letting nature run its course. A right to refuse treatment is distinct from a right to demand it. The Abortion Act does not, in the words of Professor Sheldon, "deny female autonomy", it restricts it. The key question is whether the restriction is justified.

Moral pluralism is a feature of British society. Reasonable people differ on the moral status of the foetus, the scope of the right to life, and the moral weight of women's autonomy in abortion decisions. No position on abortion will satisfy all groups. The Abortion Act is a delicate compromise, seeking to respect female autonomy while affording some protection to the foetus. As abortion falls within the realm of health, physical and mental, and requires medical intervention, doctors act as gatekeepers. The Act accommodates values held dear by traditional pro-life and pro-choice groups.

Its flexibility has further allowed the Act to adapt to changing social mores. Still, "more autonomy!" shout one group, "more protection!" bellow another. Battered, bruised, and covered in mud slung from all directions, the resilient Abortion Act has survived nearly half a century. It is, in my view, a wise piece of legislation on a divisive and complex issue. It has, with time, achieved a satisfactory equilibrium. Any plans to nudge it in one or other direction should be approached with caution.

Daniel Sokol is a pupil barrister at 1 Crown Office Row and an Honorary Senior Lecturer in Medical Ethics at Imperial College London. His latest book Doing Clinical Ethics: a hands-on guide for clinicians and others (2012) is published by Springer.

Source:The Guardian UK, 10 April 2012