The sting that showed clinics agreeing to requests for sex-selective abortion caused outrage. Yet it's not clear whether the practice is always illegal
Several commentators on last week's revelations about clinics offering abortions on the basis of the sex of the unborn baby have repeatedly claimed that abortion for sex selection is illegal. But that is far from clear.
Some appear to have confused abortion with embryo selection. The latter is regulated by the Human Fertilisation and Embryology Act (1990, amended 2008), which prohibits the selection of embryos on the basis of sex - except where necessary to rule out a sex-linked disorder. It was presumably this that the president of the Royal College of Obstetricians and Gynaecologists had in mind when he said: "Sex selection is illegal in this country and abortion based on the baby's gender for non-medical purposes is unlawful. Abortion is already heavily regulated in the UK and sex selection is only allowed in very specific conditions such as in the case of hereditary disease as stated in the HFEA Act 2001[sic]". Yet the 1990 Act is not relevant to sex selective abortion so its mention here is, at best, misleading.
Others have noted that the Abortion Act (1967) says nothing about permitting sex selection. This is true. Yet neither does it make mention of the availability of termination following rape and most people (including the MPs who voted to introduce the 1967 Act) would agree that abortion should be legally available in that case. Rather, the Act offers a defence against the charge of 'unlawful procurement of miscarriage' under the Offences Against the Person Act (1861), where two doctors believe, in good faith, that one of a number of broad contraindications to pregnancy is present.
One contraindication is that continuing the pregnancy would pose a greater risk to a woman's physical or mental health than would abortion. The doctor who authorises abortion for a rape victim would rely on the likely harm to her mental health. The legal question at issue here is whether the doctor who authorises a sex selective abortion might ever do likewise.
Imagine a woman with two daughters who comes from an ethnic group that places a very high value on sons. She and her husband live with her in-laws, who threaten to render them homeless if she gives birth to another girl. Clearly, we might wish that this woman could leave this situation or, better, simply live in a world where such things
do not happen. But while we await that world, a doctor who authorises a termination could make a strong legal case that she had acted in good faith to preserve the mental health of her patient.
From the highly edited clips available, the 'sting' cases appear very different from this scenario. Without having enough information to comment on them in detail, they clearly raise serious questions regarding whether the doctors concerned had gathered sufficient information to form a good faith view of the basis for a termination (or,
indeed, to have been reassured that a woman making such an unusual request was not acting under duress). While the fact that no abortion will have taken place means that no charge of 'unlawful procurement of miscarriage' can be brought, prosecutors may consider whether a charge might lie in conspiracy to commit such an offence or, if notification papers have been falsely completed, in perjury. And, of course, the doctors might face sanction from the General Medical Council.
Notwithstanding the attention given to this story over the past week, there does not seem to be any evidence that requests for sex selective abortions are common. Yet the disparity between the laws regulating abortion and embryo selection in this regard is nonetheless striking. The only plausible explanation (by no means a justification) lies in the substantial recent parliamentary attention given to issues of embryo selection - attention which successive governments have denied to abortion. The result is that we are left with abortion legislation that is badly outdated in numerous respects. It would be unfortunate if recent attention given to the 'sting' were allowed to distract from more
basic inadequacies of the Act. It would be doubly so if this controversy serves to fuel broader agendas to restrict access to the good, safe and lawful abortion services that remain an essential part of women's ability to control their own fertility.