Decriminalisation of abortion: a discussion paper from the BMA February 2017 British Medical Association bma.org.uk The BMA has endeavoured to print all material relating to ARM 2017 using recycled or FSC-certified paper. We have done this to uphold BMA policy (see below) and the Representative Body’s wish to look after the environment. That this meeting calls for all papers relating to BMA ARM and AGM to be printed on either 100% recycled paper or 100% FSC-certified paper from sustainable sources. (2016) British Medical Association Decriminalisation of abortion: a discussion paper from the BMA 1 Membership of the MEC (medical ethics committee) A publication from the BMA’s medical ethics committee whose membership for 2016/17 was: Dr John Chisholm – Chair of MEC; General practice, London Dr Hannah Barham-Brown – Junior doctor, London Professor Baroness Ilora Finlay – Palliative medicine, Cardiff Dr Iain Brassington – Medical law and ethics, Manchester Dr Jacky Davis – Radiology, London Professor Bobbie Farsides – Medical law and ethics, Brighton Professor Robin Gill – Theology, Canterbury Professor Raanan Gillon – General practice (retired) and medical ethics, London Dr Zoë Greaves – General practice, South Tees Professor Emily Jackson – Medical law and ethics, London Dr Surendra Kumar – General practice, Widnes David Lock QC – Barrister, London, Birmingham and Bristol Dr Helena McKeown – General practice, Salisbury Dr Mary Neal – Medical law and ethics, Strathclyde Professor Wendy Savage – Obstetrics and gynaecology (retired), London Professor Mona Siddiqui – Islamic and interreligious studies, Edinburgh Dr Ian Wilson – Pain medicine and anaesthesia, Yorkshire Dr Jan Wise – Psychiatry, London BMA chief officers (ex-officio) Professor Pali Hungin – President, BMA Dr Mark Porter – Chair of council, BMA Dr Anthea Mowat – Chair of the representative body, BMA Dr Andrew Dearden – Treasurer, BMA Thanks are due to members of BMA committees and BMA staff for providing information and comments. 2 British Medical Association Decriminalisation of abortion: a discussion paper from the BMA British Medical Association Decriminalisation of abortion: a discussion paper from the BMA 3 Executive summary – This year marks 50 years since the enactment of the Abortion Act and there will undoubtedly be reflection on whether current abortion legislation is fit for purpose. It is likely that ‘decriminalisation’ of abortion will feature in that debate. – There is no single interpretation of what decriminalisation of abortion would mean in practice and it can be understood in a number of different ways. A range of options is discussed in more detail in this paper; for example, it can mean: – complete/total decriminalisation: the complete removal of abortion from criminal law – decriminalisation and selective recriminalisation: the complete removal of abortion from current criminal law and the creation of new criminal offences for a specified set of circumstances relating to abortion – selective decriminalisation: repealing some and/or amending some or all of the existing criminal law relating to abortion. Map of the law on abortion – Common law crime – Abortion Act 1967 – O ffences Against the Person Act 1861 – O ffences Against the Person Act 1861 – S ection 25 Criminal Justice Act 1945 – I nfant Life (Preservation) Act 1929 – C ommon law defence – A bortion Act 1967 – S ections 71 and 72 Criminal Code 1872 – I nfanticide and Infant Life (Preservation) Act 1938 – T ermination of Pregnancy (Medical Defences) Act 1995 – O ffences Against the Person Act 1861 – I nfant Life (Preservation) Act 1929 – A bortion Act 1967 – T he Termination of Pregnancy (Jersey) Law 1997 – T he Abortion (Guernsey) Law 1997 4 British Medical Association Decriminalisation of abortion: a discussion paper from the BMA – The BMA currently does not have policy on the decriminalisation of abortion, and this paper does not include recommendations about whether, and if so how, abortion should be decriminalised. Instead, a number of arguments, put forward by others, in favour of and against decriminalisation are set out in part two of the paper. These invite the question – what role, if any, should the criminal law play in setting parameters for the provision and administration of abortion? Would some form of decriminalisation be better than the current legislative framework? – The current law around abortion is set out in detail in part one of the paper. In summary, induced abortion is a crime throughout the British Isles. There are, however, a range of exceptions to the crime laid out in statute and/or common law.a – Abortion is governed by core statute and common law but is also subject to further specific regulation and professional and clinical standards. In addition, the professional standards, regulation, criminal and civil law that apply to other aspects of clinical care also apply to abortion – for example, the law relating to informed consent and the professional standards set by the GMC (General Medical Council) to support patients and treat them as individuals, respecting their dignity and privacy. – There have been several criminal prosecutions in recent years relating to abortion. In addition, there have been a number of cases where women have purposefully exposed themselves to the risk of prosecution, or where individuals have deliberately, and unsuccessfully, sought prosecutions of doctors who authorise or carry out abortions. Cases have included: – individuals who have illegally supplied abortifacientsb – women who have procured and self-administered abortifacients – individuals who have procured abortifacients on behalf of others – individuals who have maliciously and covertly tried to procure an abortion or administer an abortifacient; and – doctors who have been challenged for their involvement in the provision of abortions they deemed to be lawful. – Where the Abortion Act 1967 is in place (England, Wales and Scotland), the rate and number of lawful abortions performed overall has remained relatively constant over recent years. What has changed is the increase in the proportion of abortions that are being undertaken earlier on in a pregnancy, and the significant increase in the proportion of total abortions that are being carried out medically, as opposed to surgically. – In Northern Ireland, where the Abortion Act does not apply but the common law permits abortion in some circumstances, the official number of lawful abortions performed has decreased, but there is a suggestion that the number of unlawful abortions has increased due to the availability of abortifacients online. – Whatever one’s view about the principle of the decriminalisation of abortion, there are some issues on which there appears to be broad consensus. For example: – the need for a woman’s informed consentc to an abortion, or a best interests assessment where a woman lacks capacity – the right to conscientious objection by healthcare workers – the collection of abortion data – the need for clarity about what is and what is not lawfully permitted a The law can be in the form of statute and common (judge-made) law. In the latter, judges note the precedents in previous cases and rules are extracted from those decisions. b An abortifacient is an agent that causes abortion. c A woman’s consent will be valid when she has capacity, is adequately informed and voluntarily agrees to treatment, examination or another aspect of healthcare. British Medical Association Decriminalisation of abortion: a discussion paper from the BMA 5 – the need for robust clinical governance in settings where abortion care is provided; and – the continued regulation of, and the setting of professional standards in, the provision of abortion services. – In considering the question of the role of the criminal law in abortion, the following questions may be helpful to focus debate. – In what, if any, circumstances should women who self-administer an abortion be subject to criminal sanctions? – How should the criminal law and the prosecution services respond to the increasing number of women who are acquiring abortifacients online? If there are to be criminal sanctions, should these apply to both women themselves and suppliers of the abortifacients? – In what, if any, circumstances should health professionals who participate in the provision of abortion be subject to criminal sanctions? – Should the point of viability be treated as significant in determining whether criminal sanctions should apply in some cases of abortion? 6 British Medical Association Decriminalisation of abortion: a discussion paper from the BMA British Medical Association Decriminalisation of abortion: a discussion paper from the BMA 7 Contents Introduction .......................................................................................................................8 – What is abortion? .................................................................................................................................9 – The BMA’s policy on abortion .........................................................................................................9 Part one – background to the debate ......................................................................10 – What makes abortion a crime? ....................................................................................................10 – Offences Against the Person Act 1861 (England, Wales and Northern Ireland) ...............10 – Infant Life (Preservation) Act 1929 (England and Wales) and Criminal Justice (Northern Ireland) Act 1945 .....................................................................................................................11 – Common law: Scotland ..............................................................................................................................11 – ‘Lawful’ abortion .............................................................................................................................12 – The Abortion Act 1967: England, Scotland and Wales .................................................................12 – Common law: primarily relevant to Northern Ireland ..................................................................13 – A devolved issue? .............................................................................................................................14 – The regulation of lawful abortion ...............................................................................................15 – Prosecutions in the UK ..................................................................................................................16 – Individuals illegally supplying abortifacients ...................................................................................16 – Women self-administering abortifacients.........................................................................................16 – Individuals purchasing abortifacients on behalf of others ........................................................17 – Individuals covertly procuring or administering abortifacients ..............................................17 – Associated cases .............................................................................................................................18 – Abortion in the UK today ..............................................................................................................19 – Statistics ...........................................................................................................................................................19 – Medical abortion ...........................................................................................................................................22 Part two – decriminalisation ......................................................................................23 – What does ‘decriminalisation’ mean? .......................................................................................23 – Decriminalisation: the debate .....................................................................................................24 – The moral and legal status of the fetus ..............................................................................................25 – The moral and legal claims of the pregnant woman .....................................................................27 – Arguments in favour of decriminalisation .........................................................................................28 – Arguments against decriminalisation ................................................................................................30 – International experience ...............................................................................................................31 Part three – where next? ..............................................................................................33 – Key questions ....................................................................................................................................34 Annex A – the law in the channel islands and isle of man ................................35 – Jersey ....................................................................................................................................................35 – Guernsey, Herm and Jethou .........................................................................................................35 – Isle of Man...........................................................................................................................................36 Annex B – abortion statistics .....................................................................................37 – England and Wales ...........................................................................................................................37 – Scotland ..............................................................................................................................................38 – Northern Ireland ..............................................................................................................................38 References ........................................................................................................................39 8 British Medical Association Decriminalisation of abortion: a discussion paper from the BMA Introduction Induced abortion is generally a crime in the UK, although there are a range of detailed circumstances set out in statute and case law where no crime is committed. Any doctor operating within those defined circumstances can lawfully carry out an abortion as a clinical procedure. Outside these defined circumstances, the criminal offences potentially apply both to those who participate in carrying out abortions for others, including doctors, nurses and midwives; and to women who carry out abortions on themselves. Over recent times, calls to take abortion out of the criminal law – to ‘decriminalise’ abortion – have gathered momentum. Those calls may have been prompted, at least in part, by recent criminal prosecutions of women under the Offences Against the Person Act 1861. Decriminalisation could mean several different things in practice, and it is, usually but not inevitably, proposed in conjunction with a broader reform of abortion legislation and changes to its current availability. At a very basic level decriminalisation involves changing the default position so that instead of abortion being a crime for which there are some circumstances in which abortion is lawful, abortion would be lawful with some limited exceptions, such as where the procedure is undertaken on a woman who has capacity without her consent. Removing criminal sanctions need not mean an absence of regulation; limits could still be set, but subject to professional and regulatory, rather than criminal, sanctions for doctors for example. This paper seeks to identify the options and to discuss the benefits and detriments of different legal models relating to abortion. Criminal law Regulated activity Civil law eg negligence Professional regulation and standards eg GMC Parameters to the provision of abortion This year marks 50 years since the enactment of the Abortion Act for England, Scotland and Wales (passed on 27 October 1967). This will inevitably raise the profile of this issue and increase debate both in the public and professional arenas about whether the current abortion legislation is fit for purpose. The BMA believes it is important to keep legislation and public policy under review but also believes that there is a responsibility amongst policy-makers, health professionals and the media to base discussion and debate on factual information where available. Such information is often difficult to find. The aim of this paper is to provide a guide to some of the key legal and ethical issues raised by the debate around the decriminalisation of abortion for BMA members, policy-makers and the wider public, in order to facilitate good quality, informed debate about the issue.