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Abortion time limits: a briefing paper from the BMA

Contents

Membership of the Medical Ethics Committee ….. ….. ….. ….. ….. ….. ….. iiiAcknowledgements ….. ….. ….. ….. ….. ….. ….. ..… ….. iiiEditorial Board ….. ….. ….. ….. ….. ….. ….. ..… ….. iv

Introduction ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 1

What is abortion? ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 1The BMA’s views on abortion ….. ….. ….. ….. ….. ….. ….. ….. 1

Part one – Background to the debate ….. ….. ….. ….. ….. ….. ….. 2

The law on abortion ….. ….. ….. ….. ….. ….. ….. ..… ….. 2England, Scotland and Wales ….. ….. ….. ….. ….. ….. ….. ….. 2

Northern Ireland ….. ….. ….. ….. ….. ….. ….. ….. ….. 3 Abortion statistics and trends ….. ….. ….. ….. ….. ..… ….. ….. 3

England and Wales ….. ….. ….. ….. ….. ….. ….. ….. ….. 3Total number of abortions carried out in England and Wales 1969-2003 ….. ….. ….. 4 Abortion rates per 1,000 women aged 15-44 resident in England and Wales 1969-2003 ….. ….. 5 Number of abortions by gestational age of the fetus 1994-2003 ….. ….. ….. ….. 5

Scotland ….. ….. ..… ….. ….. ….. ….. ….. ….. ….. 7Total number of abortions carried out in Scotland 1969-2003 ….. ..… ….. ….. 7 Abortion rates in Scotland per 1,000 women aged 15-44 1969-2003 ….. ….. ….. ….. 8 Number of abortions by gestational age of the fetus 1994-2003 ….. ….. ….. ….. 8

Northern Ireland ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 8Factors affecting the timing of abortion ….. ….. ….. ….. ….. ….. ….. 9

Why women have second trimester abortions ….. ….. ….. ….. ….. ….. 9Why women have third trimester abortions ….. ….. ….. ….. ….. ….. 10Access to services ….. ….. ….. ….. ….. ….. ….. ….. ….. 10

Part two – Factors influencing views on abortion time limits ….. ….. ….. ….. ….. 12

The moral status of the fetus ….. ….. ….. ….. ….. ….. ….. ….. ….. 12What stages of development are seen as morally significant? ….. ….. ….. ….. ….. 12The gradualist approach ….. ….. ….. ….. ….. ….. ….. ….. ….. 15

The legal status of the fetus ….. ….. ….. ….. ….. ….. ….. ….. ….. 15Fetal viability ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 15

What is meant by “viability”? ….. ….. ….. ….. ….. ….. ….. ….. 16How is gestational age calculated? ….. ….. ….. ….. ….. ….. ….. 16

Professional guidance ….. ….. ….. ….. ….. ….. ….. ….. ….. 17Research evidence on survival following pre-term delivery ….. ….. ….. ….. ….. 17

Fetal pain ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 19At what point does a fetus experience pain? ….. ….. ….. ….. ….. ….. 19Public perceptions of fetal experiences ….. ….. ….. ….. ….. ….. ….. 20

Diagnosing fetal abnormality ….. ….. ….. ….. ….. ….. ….. ….. ….. 20Prenatal screening ….. ….. ….. ….. ….. ….. ….. ….. ….. 21Prenatal testing ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 23When are fetal abnormalities diagnosed? ….. ….. ….. ….. ….. ….. ….. 24Decision-making following prenatal diagnosis ….. ….. ….. ….. ….. ….. 24The Abortion Act and fetal abnormality ….. ….. ….. ….. ….. ….. ….. 25Factors that can delay abortion for fetal abnormality ….. ….. ….. ….. ….. ….. 26

Part three – International comparisons ….. ….. ….. ….. ….. ….. ….. 28

Abortion law in other countries ….. ….. ….. ….. ….. ….. ….. ….. 28Abortion rates ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 30Grounds for abortion….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 31Abortion “on request” ….. ….. ….. ….. ….. ….. ….. ….. ….. 31Upper time limits for abortions ….. ….. ….. ….. ….. ….. ….. ….. 32Abortion law – risks for women ….. ….. ….. ….. ….. ….. ….. ….. 33

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Part four – Some current proposals for law reform ….. ….. ….. ….. ….. ….. 34

Repeal of the Abortion Act ….. ….. ….. ….. ….. ….. ….. ….. ….. 34Reforming the existing legal framework ….. ….. ….. ….. ….. ….. ….. 34

Appendix one – additional statistics ….. ….. ….. ….. ….. ….. ….. 36

England and Wales ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 36Number of abortions by age of woman 1994-2003 ….. ….. ….. ….. ….. ….. 36Number of abortions by legal grounds for termination 1994-2003 ….. ….. ….. ….. 37

Scotland ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. 38Number of abortions by age of woman 1994-2003 ….. ….. ….. ….. ….. ….. 38Number of abortions by legal grounds for termination 1994-2003 ….. ….. ….. ….. 40

May 2005

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Membership of the Medical Ethics Committee

A publication from the BMA’s Medical Ethics Committee (MEC) whose membership for 2004/5 was:

Professor Sir Charles George President, BMA Mr James Johnson Chairman, BMA CouncilDr David Pickersgill Treasurer, BMA

Dr Michael Wilks Chairman, Medical Ethics Committee; Chairman, BMA Representative Body; forensic physician, London

Mr Dipak Banerjee Consultant ophthalmologist, Wigan Dr Tony Calland General practitioner, GwentProfessor Alastair Campbell Professor of Ethics in Medicine, BristolDr John Chisholm General practitioner, LondonProfessor Peter Dangerfield Medical academic, LiverpoolProfessor Len Doyal Professor of Medical Ethics, LondonDr George Fernie Forensic physician, Glasgow and MDDUS adviserDr Alex Freeman (deputy) General practitioner, SouthamptonProfessor Robin Gill Professor of Modern Theology, CanterburyProfessor Raanan Gillon Deputy Chairman, MEC; general practitioner and Professor

of Medical Ethics, LondonDr Evan Harris Member of Parliament and former hospital doctorProfessor John Harris Sir David Alliance Professor of Bioethics, ManchesterProfessor Emily Jackson (from Feb 2005) Professor of Law, LondonDr Grant Kelly (deputy) General practitioner, West SussexDr Geoffrey Lewis Consultant anaesthetist, LeicesterMr Johann Malawana Medical student, LondonProfessor Sheila McLean Director of Institute of Law and Ethics in Medicine, GlasgowProfessor Jonathan Montgomery Professor of Health Care Law, SouthamptonProfessor Derek Morgan (until Feb 2005) Professor in Health Care Law and Jurisprudence, Cardiff Dr M E Jan Wise Psychiatrist, London

Acknowledgements

The BMA would like to thank the organisations who provided advice and information during thepreparation of this paper and provided comments on an earlier draft. Whilst these contributionshelped to inform the BMA’s views, it should not be assumed that this paper necessarily reflects theviews of all those who commented. In particular, we would like to thank: the British Association of Perinatal Medicine, Department of Health, Family Planning Association, Nursing & Midwifery Council,Royal College of Midwives, Royal College of Nursing, Royal College of Obstetricians andGynaecologists, Royal College of Paediatrics and Child Health and the Scottish Executive HealthDepartment. Thanks are also due to members of BMA committees and BMA staff for providinginformation and comments.

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Editorial Board

Project Manager Veronica English

Written by Veronica English Rebecca Mussell

Editorial secretariat Patricia Fraser

Director of Professional Activities Vivienne Nathanson

Information about this and other subjects covered by the Medical Ethics Committee may be obtainedfrom the BMA’s website at: www.bma.org.uk.

In addition, BMA members may contact: British Medical AssociationMedical Ethics DepartmentBMA House Tavistock SquareLondon WC1H 9JP Tel: 020 7383 6286Fax: 020 7383 6233Email: [email protected]

Non-members may contact: British Medical AssociationPublic Affairs DepartmentBMA House Tavistock SquareLondon WC1H 9JP Tel: 020 7383 6603Fax: 020 7383 6403Email: [email protected]

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INTRODUCTION

Over recent times, calls to review the current provisions of the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology (HFE) Act 1990) have gathered momentum. A series of events in the summer of 2004 brought this issue to public attention including the publication of 4D ultrasound images of a fetus in utero (see page 20) and a legal challenge centred around the definitionof “serious handicap” in the Abortion Act (see page 26). In March 2005 the House of CommonsScience and Technology Committee called on Parliament to set up a joint committee to consider the scientific, medical and social changes in relation to abortion that have taken place since 1967 with a view to presenting options for new legislation.1 The Department of Health’s review of the 1990 HFEAct, based on a wide-ranging public consultation exercise, will inevitably raise the profile of this issuestill further and will lead to more debate in both the public and professional arena about whether the current time limits for abortion need to be changed. There have also been calls among politicians for Parliament to be given the opportunity to debate the abortion issue again after a gap of 16 years.

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. Such information is often difficult to find. The aim of this paper is to provide factual information for BMA members, policy makers and the wider public, in order to facilitate good quality, informed debate about abortion time limits.

What is abortion?

The term “abortion” is used throughout this paper to refer to the induced termination of an established pregnancy (i.e. after implantation). It does not include the use of emergency hormonal contraceptionwhich the High Court has confirmed is not an abortifacient.2 All current methods of emergencycontraception work prior to implantation and therefore are not abortifacients.

The BMA’s views on abortion

This paper does not include recommendations about whether, and if so how, the law should be changed; it aims simply to provide factual information in an objective way. Nevertheless, it isimportant to recognise that the BMA does not start off from a neutral position in this debate. Although representing members with a wide range of views on abortion, the BMA has clear democratic and representative mechanisms for formally establishing policy on such issues, through its Representative Body. Through these procedures, the BMA has repeatedly since the 1970s agreed policy statements supporting the Abortion Act as a “practical and humane piece of legislation” and calling for thelegislation to be extended to Northern Ireland.

In 1989, prior to Parliamentary debate on the HFE Act, the Representative Body debated a motionstating that the BMA:

“agrees that in other than the most extreme cases, 24 weeks should be the upper limit for termination of pregnancy, and the figures show that this has already been achieved. It believes that to change the law now may pose legal and professional hazards for doctors.”

The motion was “accepted as a reference” which means that the general principle was accepted but there was some difficulty with the precise wording. The BMA has not debated abortion time limitssince 1989 and so this remains the latest expression of the BMA’s general views in this area.

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PART ONE BACKGROUND TO THE DEBATE

The law on abortion

Before the Abortion Act was passed in 1967, abortion was lawful in a limited number of circumstances but there was considerable uncertainty about its scope. In 1933 the BMA’s Representative Body asked BMA Council to consider the case for amendment of the law relating to abortion. One of the main arguments put forward in support of this was that “medical practitioners were unwilling to perform therapeutic abortion – that is, abortion for medical reasons – owing to their sense of legal risk arising from the uncertain state of the law.”3 A major factor in the debate in the years preceding the 1967 Act was the effect on women of this uncertainty and the limitations in the law. It was widely accepted that large numbers of women put their health, and sometimes their lives, at risk by having illegal abortions often undertaken by unskilled personnel in unsafe and unhygienicconditions.

Because they were illegal, and were therefore undertaken clandestinely, it is not possible to know the number of illegal abortions undertaken and estimates varied widely from 10,000 to 100,000 per year.4The lack of accurate data prior to 1967 was confirmed by the Lane Committee in 1974, which concluded that the number of illegal abortions performed before and since the Act was “a matter for speculation, not of calculation”. The Lane Committee pointed out that it was only those illegal abortions that resulted in illness or death that ever came to light and were officially recorded.5 In the1989 debate on the Human Fertilisation and Embryology Bill, Sir David Steel also acknowledged theinevitable lack of accurate statistics on abortion before 1967 but quoted figures obtained from theDepartment of Health that gave an indication of the scene before the 1967 Act: in 1965, the number of women discharged from hospital with post-abortion sepsis was 3,050, in 1982 it was 390. In the three years from 1961 to 1963 the Department of Health reported that 160 women were recorded as dyingas a result of abortions, for the three years from 1985 to 1987, the figure was four.6

England, Scotland and Wales

In England, Scotland and Wales the Abortion Act 1967 (as amended by the Human Fertilisation andEmbryology Act 1990) permits the termination of pregnancy, by a registered medical practitioner, up to24 weeks’ gestation where:

“the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of herfamily”.

The 1990 amendments to the Act removed pre-existing links with the Infant Life Preservation Act1929 which had made it illegal to “destroy the life of a child capable of being born alive” with apresumption that a child was capable of being born alive after 28 weeks’ gestation. As a result, apregnancy may lawfully be terminated up to birth where:

“the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

“the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater thanif the pregnancy were terminated; or

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“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

In all circumstances except where termination is immediately necessary to save the life of the pregnant woman, the law requires that agreement is obtained from two doctors and that the abortiontakes place on approved premises.

Conscientious objection

The Abortion Act includes a conscientious objection clause which permits doctors to refuse to“participate in any treatment authorised by this Act” to which they have a conscientious objection butwhich obliges them to provide any necessary treatment in an emergency when the woman’s life would be at risk. General information about interpretation of the conscientious objection clause of the Act isprovided in BMA guidance.7 On the particular issue of time limits, however, the wording of the clauseappears to permit doctors to opt out of some but not all abortions, where their beliefs lead them to make a distinction.8 So, for example, some doctors may be willing to participate in early abortionsbut have a conscientious objection to involvement at later stages of pregnancy. Where doctors have a conscientious objection to some or all aspects of treatment covered by the Act, they shouldnonetheless refer patients to another practitioner without delay.

Northern Ireland

The Abortion Act does not extend to Northern Ireland where the law is different and is based on the Offences Against the Person Act 1861 which makes it an offence to “procure a miscarriageunlawfully”. Doctors in Northern Ireland must use the guidance provided from existing case law tointerpret this phrase in relation to individual cases. In 2001 the Family Planning Association (FPA)sought a judicial review of the situation regarding termination of pregnancy in Northern Ireland,arguing that the Health Minister had acted unlawfully in failing to issue advice and guidance to women and doctors on the availability and provision of services to terminate pregnancy in NorthernIreland. In July 2003 the court rejected the FPA’s claim9 but this was overturned on appeal in 2004.10

Following this successful appeal, the Health Minister of Northern Ireland is expected to produceguidance for doctors on the circumstances in which abortion is lawful although no time has beenannounced for its publication.

The BMA has, for many years, had policy supporting the extension of the Abortion Act to Northern Ireland. This view was reaffirmed in 2003 when the BMA’s Representative Body passed the following resolution:

“That this Meeting deeply regrets that women in Northern Ireland are denied access to thesame abortion services available to women in the rest of the UK and requests that the government increase their efforts to ensure this anomaly is rectified as soon as possible.”

Abortion statistics and trends

It is a legal requirement for any registered medical practitioner who terminates a pregnancy to providenotice of the termination to the relevant Chief Medical Officer. The Abortion Regulations 1991 prescribe what information has to be given and standard forms are used to collect the information.Abortion statistics are published annually, using data derived from these forms.

England and Wales

Abortion statistics for England and Wales are published annually by the Department of Health.11

The latest year for which data are available is 2003 and a summary of the key points for that year are given in the box below. The rest of this section looks at the total number of abortions carried out andabortion rates for each year since 1969 (the first full year after the 1967 Abortion Act came into force)

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and, for the last 10 years, the number of abortions by gestational age of the fetus. Further statistics,showing the number of abortions over the last ten years by age of the woman and legal grounds for abortion, can be found in Appendix 1.

Abortion in England and Wales in 2003: summary of key points12

181,600 abortions were carried out on residents of England and Wales and a further 9,100 were undertaken for non-residents (principally from Northern Ireland and the Irish Republic)

The abortion rate was 16.6 per 1,000 women residents aged 15-44

87% of abortions were carried out at under 13 weeks’ gestation and 58% were at under 10 weeks

0.75% of abortions were carried out at 22 weeks and over

94% of abortions were carried out within 24 weeks on grounds that the continuance of the pregnancy involved risk of injury to the physical or mental health of the woman

1% were carried out because of severe abnormality

Table 1 Total number of abortions carried out in England and Wales (residents and non-residents)

1969 54,819 1976 129,673 1983 162,161 1990 186,912 1997 179,746

1970 86,565 1977 133,004 1984 169,993 1991 179,522 1998 187,402

1971 126,777 1978 141,558 1985 171,873 1992 172,069 1999 183,250

1972 159,884 1979 149,746 1986 172,286 1993 168,714 2000 185,375

1973 167,149 1980 160,903 1987 174,276 1994 166,876 2001 186,274

1974 162,940 1981 162,480 1988 183,798 1995 163,638 2002 185,385

1975 139,702 1982 163,045 1989 183,974 1996 177,495 2003 190,660

Fig. 1

0

50,000

100,000

150,000

200,000

250,000

1969

1972

1975

1978

1981

1984

1987

1990

1993

1996

1999

2002

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In the early 1970s a large number of abortions were carried out for non-residents of England andWales reaching a peak of 56,581 in 1973 representing a third of all abortions carried out in that year.In the early 1980s the number was around 34,000 (20% of the total) and from 1995 the number has been around 9,500 representing 5% of the total number of abortions.

Table 2 Abortion rates per 1,000 women aged 15-44 resident in England and Wales

1969 5.3 1976 10.5 1983 12.1 1990 15.8 1997 15.91970 8.1 1977 10.5 1984 12.8 1991 15.2 1998 16.61971 10.1 1978 11.3 1985 13.1 1992 14.8 1999 16.21972 11.5 1979 12.0 1986 13.5 1993 14.7 2000 16.31973 11.7 1980 12.6 1987 14.2 1994 14.6 2001 16.31974 11.5 1981 12.4 1988 15.3 1995 14.4 2002 16.21975 11.1 1982 12.3 1989 15.5 1996 15.7 2003 16.6

Table 3 Number of abortions for residents of England and Wales by gestational age of the fetus1994-2003

Weeks

Under 9 9-12 13-19 20-24 25+

1994 63,456 75,751 15,468 1,782 81

1995 64,696 73,000 14,785 1,772 62

1996 67,091 81,728 16,904 2,095 97

1997 70,178 81,489 16,369 2,045 64

1998 73,625 84,702 17,229 2,252 63

1999 73,882 80,800 16,552 2,401 66

2000 75,908 79,000 18,079 2,478 77

2001 75,501 79,368 18,718 2,700 77

2002 100,624 1 53,106 1 19,328 2,790 84

2003 105,072 1 53,377 1 20,206 2,927 2 N/A1 From 2002 the way in which data are presented was changed to 0-9 weeks and 10-12 weeks. Therefore

abortions undertaken at 9 weeks are now included in the first category rather than in the second. 2 In 2003 data for abortions at 25+ weeks were not presented separately. In this table they are included in

20-24 weeks.

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Fig. 3a

0

20,000

40,000

60,000

80,000

100,000

120,000

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003

Under 9 (a) 9-12 (b) 13-19 20-24 25 (c)

(a) for 2002 and 2003 this is 4-9 weeks (b) for 2002 and 2003 this is 10-12 weeks. This means that for 2002 and 2003, terminations undertaken at

9 weeks were shifted from the second category to the first.(c) In 2003 data for abortions at 25+ weeks were not presented separately. On this graph they are included

in 20-24 weeks.

Fig. 3b As percent of total

0% 20% 40% 60% 80% 100%

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

Under 9 (a) 9-12 (b) 13-19 20-24 25 (c)

(a) for 2002 and 2003 this is 4-9 weeks (b) for 2002 and 2003 this is 10-12 weeks. This means that for 2002 and 2003, terminations undertaken at

9 weeks were shifted from the second category to the first.(c) In 2003 data for abortions at 25+ weeks were not presented separately. On this graph they are included

in 20-24 weeks.

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In 2003 the Department of Health changed the way it presented its data in relation to gestational age because of concerns about privacy and confidentiality. Separate figures are no longer provided for abortions post-24 weeks but instead these are grouped as “more than 20 weeks’ gestation”.

Scotland

Abortion statistics for Scotland are published annually by the Information and Statistics Division (ISD) Scotland.13 The latest year for which data are available is 2003 and a summary of the key pointsfor that year are given in the box below. The rest of this section looks at the total number of abortions carried out and abortion rates for each year since the 1967 Abortion Act came into effect and, for the last 10 years, the number of abortions by the gestational age of the fetus. Further statistics, showing the number of abortions over the last ten years by age of the woman and legal grounds for abortion,can be found in Appendix 1.

Abortion in Scotland in 2003: summary of key points14

12,195 abortions were carried out on residents of Scotland and a further 22 were undertaken for non-residents

The abortion rate was 11.5 per 1,000 women aged 15-44

92.6% of abortions were carried out at gestation of 13 weeks and under, and 65.4% were at under 10 weeks

0.49% of abortions were carried out at 20 weeks and over

96.1% of abortions were carried out within 24 weeks on grounds that the continuance of the pregnancyinvolved risk of injury to the physical or mental health of the woman

1.4% were carried out because of severe abnormality

Table 4 Total number of abortions carried out in Scotland (residents and non-residents)

1969 3,556 1975 7,327 1981 9,007 1987 9,460 1993 11,076 1999 12,168

1970 5,254 1976 7,219 1982 8,425 1988 10,128 1994 11,392 2000 11,997

1971 6,333 1977 7,334 1983 8,459 1989 10,209 1995 11,143 2001 12,128

1972 7,609 1978 7,451 1984 9,155 1990 10,219 1996 11,978 2002 11,772

1973 7,542 1979 7,784 1985 9,189 1991 11,068 1997 12,109 2003 p 12,217

1974 7,568 1980 7,905 1986 9,628 1992 10,818 1998 12,485 p = provisional

0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

1969

1972

1975

1978

1981

1984

1987

1990

1993

1996

1999

2002

Fig. 4

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Table 5 Abortion rates in Scotland per 1,000 women aged 15-44

1969 3.5 1976 6.9 1983 7.6 1990 9.1 1997 11.1 1970 5.1 1977 7.0 1984 8.2 1991 9.9 1998 11.5 1971 6.2 1978 7.0 1985 8.2 1992 9.8 1999 11.2 1972 7.4 1979 7.3 1986 8.6 1993 10.0 2000 11.1 1973 7.3 1980 7.3 1987 8.4 1994 10.3 2001 11.3 1974 7.4 1981 8.2 1988 9.0 1995 10.1 2002 11.0 1975 7.1 1982 7.6 1989 9.1 1996 10.9 2003 p 11.5

p = provisional

Table 6 Number of abortions performed in Scotland, by gestational age of the fetus, 1994-2003

WeeksUnder 10 10 - 13 14 - 17 18-19 20-24 25+

1994 6,898 3,687 620 124 49 81995 7,068 3,399 533 94 44 51996 7,494 3,716 594 125 42 71997 7,435 3,960 558 104 50 21998 7,720 3,973 600 133 57 11999 8,013 3,308 641 146 57 32000 7,989 3,264 582 102 54 62001 8,013 3,354 589 120 46 62002 7,703 3,242 661 116 49 1

2003 p 7,994 3,319 696 148 52 8p = provisional

0% 20% 40% 60% 80% 100%

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003 p

Under 10 10-13 14-17 18-19 20-24 25+

Fig. 6a As percent of total

Northern Ireland

Although a small number of abortions are carried out in Northern Ireland, there are no official published data.

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Factors affecting the timing of abortion

In England, Wales and Scotland, the vast majority of abortions take place in the first trimester ofpregnancy. In 2003, 87% of abortions in England and Wales were carried out at 12 weeks or less, and92.6% of abortions in Scotland were carried out at 13 weeks or less. These percentages have remainedconstant over the last decade (see tables 3 and 6). Although the number of abortions in the secondand third trimester of pregnancy is small, in terms of public policy on abortion time limits, it isessential to consider the reasons why women seek abortion at those stages of their pregnancy.

Why women have second trimester abortions

There is very little documented evidence available about why women seek abortions in the second trimester of pregnancy. The Pro+choice forum published a briefing paper in November 200415 thatoutlined four main reasons why women have abortions in the second trimester:

Failure to recognise the pregnancy earlierSome women do not realise that they are pregnant until late into the pregnancy. These are oftenyounger women, whose bodies are still developing, and pre-and peri-menopausal women, who do not expect to be pregnant at this stage of their lives. Women may fail to recognise the pregnancyearlier because of irregular, infrequent periods, failed contraception (particularly with methodsthat can cause amenorrhoea or irregular bleeding) or denial of the pregnancy (sometimesassociated with occasional episodes of bleeding that are interpreted as menstruation).

Delay in seeking abortion due to personal circumstancesDelays in seeking abortion are often due to the woman’s apprehension (including difficulty inconfiding in parents or partner), failure of anticipated emotional or economic support (fromfamily, partner, or employer) or an unanticipated change in the woman’s socio-economiccircumstances (in relation to her partner, parents, or others dependent on her as a carer).

Diagnosis of fetal abnormalityMany abnormalities are not diagnosed until the latter part of the second trimester (see page 20 on diagnosing fetal abnormality) and the woman needs time to consider the information provided, tocome to terms with it and make a decision about how to proceed. Some cases of second trimesterabortions are because of the diagnosis of a maternal infection that is known to cause abnormalitiesin the fetus.

Difficulty in accessing abortionSome women make a decision to have an abortion earlier in pregnancy but experience delays inaccessing the service. This may be because the local NHS services are insufficient to meet theneed (long waits for assessment and treatment), the local NHS service applies restrictions to theservice offered (for example, some will not terminate pregnancies under ground C after 12 weeks) and/or the woman is unable to afford treatment in the independent sector. Difficulties may also arise where English is not the woman’s first language and she is not familiar with the services provided; this is a particular problem for refugees and asylum seekers.

This analysis of women’s reasons for seeking second trimester abortions reflects anecdotal evidence reported by those providing the service.

In a study from the USA16 based on data collected in 1987 similar reasons were cited for abortionsafter 16 weeks’ gestation:

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Reason given Percentage of women seeking abortionafter 16 weeks

Woman did not realise she was pregnant 71

Difficulty making arrangements for abortion 48

Afraid to tell parents or partner 33

Needed time to make decision 24

Hoped relationship would change 8

Pressure not to have abortion 8

Something changed during pregnancy 6

Didn’t know timing was important 6

Didn’t know she could get an abortion 5

Fetal abnormality diagnosed late 2

Other 11

Average number of reasons given 2.2

Why women have third trimester abortions

In the UK, the vast majority of abortions beyond 24 weeks are on grounds of serious fetal abnormality. In 2002, of the 117 abortions carried out at greater than 24 weeks in England and Wales, 114 (97.4%) were because of serious fetal abnormality; the remaining 3 were because the abortion was necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman.17 Information about the diagnosis of fetal abnormality and how women make decisionsfollowing such a diagnosis is given on page 24.

Access to services

Most people take the view that where a woman seeks a lawful abortion, it is better for the abortion to be carried out earlier in pregnancy rather than later, where this is an option. It is safer for women,with a lower risk of complications,18 and is less traumatic for all concerned. For those who take agradualist approach to the moral status of the fetus, it is more acceptable to terminate a pregnancyearlier than later. It is important therefore to consider the reasons why women seek second trimesterabortions and to assess what factors would make earlier abortion a possibility for more people.

Where women meet the legal criteria for abortion, and have decided to terminate their pregnancy,delays should be kept to a minimum. Removing obstacles that cause delay and ensuring adequateservice provision for earlier abortions could reduce the number of second trimester abortions in thesecases. Evidence that women experience difficulties in accessing abortion services is provided in areport by the Joseph Rowntree Foundation. This found that “waiting times for abortion are generallyreported to be in line with government guidelines, although abortion services appear to be strugglingto meet targets in some areas…There is a commonly perceived problem in accessing abortion afterthe first trimester” 19 (emphasis added). Waiting times were also highlighted in a survey carried out in 2004 and published by the All Party Parliamentary Pro-Choice & Sexual Health Group. This foundthat although 75% of Primary Care Trusts (PCTs) had set a maximum waiting time for abortion of 21days, only 52% consistently met this target. A further 27% of PCTs reported waiting times of morethan 21 days, with 11% reporting waits of between 5 and 8 weeks.20

Concerns have also been expressed that access to second trimester abortions may be further hamperedby changes in the health service and the way in which services are delivered. For example, theoutsourcing of abortion services or certain aspects of abortion services (e.g. post 20 weeks) to anindependent contractor,21 and the reduction in junior doctors’ working hours due to the European Working Time Directive, could both result in doctors in the training grades in the NHS having less

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exposure to abortion and in some cases in women not being able to access abortion services,particularly second and third trimester abortion services, in their local area.

Improved access to and provision of early abortion services, combined with greater education about how to access services may help to reduce the number of second trimester abortions in some cases. Nevertheless, given the nature of some of these requests, as outlined above, it is clear that demand for second trimester abortions will never be totally eradicated and provision must be made for such services to be available where abortions comply with the legal framework.

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PART TWOFACTORS INFLUENCING VIEWS ON ABORTION TIME LIMITS

This section identifies some of the major factors that influence views on abortion time limits and aims to provide the reader with sufficient, accurate information to make an informed judgment. It considers a range of views on the moral status of the fetus and clarifies its legal status as well as reporting onresearch relating to fetal viability and providing information about fetal pain. The methodology and timing of prenatal diagnosis and the identification of fetal abnormality are also considered.

The moral status of the fetus

A key issue in the abortion debate is the moral status of the embryo and fetus. Although we share a common view about the obligations we owe to each other, including an obligation not to intentionallyharm or kill, views differ about what we mean by “each other” and therefore the scope of those obligations. The question of when life begins or, more precisely, when a human being acquires moralstatus, has been debated for many years and continues to be an issue on which members of societytake opposing views. This is inevitable, because it is not a question to which there is a factual answer.Ethical arguments can be made to justify attaching moral significance to various points ofdevelopment – from fertilisation through to the development of self-awareness some months after birth – but there is no single agreed point that emerges from ethical discourse. Instead, individualsregard the embryo or fetus as having moral status at a particular stage of development based on theirown personal beliefs and values. For this reason, it will probably never be possible to achieve universal agreement on this question. Yet public policy is dependent upon some consensus point being reached. Achieving an appropriate balance in law between the moral duties owed to the fetusand the moral right of the woman to make her own decisions about what happens to her body is anessential part of the abortion debate. It is one that rests in no small part on how we regard the fetus,and consequently what rights and obligations it can lay claim to, at various stages of development.

Whilst lack of agreement on this fundamental point may not be problematic for those engaged in philosophical debate, the need for public policy decisions to be made – such as when and in whatcircumstances abortion may be permitted – requires that some public policy judgments are made.Mary Warnock points out that in seeking to identify public policy which is morally the best possible “one cannot overlook the strong and deeply held moral feelings of large numbers of the population.Laws must be made with a view to the public good”.22 Seeking to achieve this aim, the best that can be hoped for is to find some consensus or majority view within society about how the law should beframed, whilst making provision for those who would attach moral significance to the fetus beforethat point to ensure that they are not required to act contrary to their conscience. Those who would attach moral significance at a later stage of development, whilst perhaps not accepting the logicbehind the limits set, must nevertheless accept that there is a prima facie moral obligation on all members of society to respect democratically made laws.

What stages of development are seen as morally significant?

Much has been written about the various stages of development that can be considered as morallysignificant. The intention here is simply to give an overview of the main points with direction to further reading for those who wish to explore these views in more detail.

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Fertilisation

At one end of the spectrum are those who take the view that “the human being is to be respected andtreated as a person from the moment of conception”.23 This position is usually based on the belief that at the moment of the fusion of the gametes a new individual is created, combined with the religious belief that every human being, from fertilisation, has a “spiritual soul” directly created by God or, at least, that as we do not know exactly the point at which ensoulment occurs, it is safer to assume that itoccurs at fertilisation. This view is most closely aligned with the Catholic tradition but is not restricted to members of that faith.

A variation on this approach is to view the embryo not as “a person” from the moment of fertilisationbut as a “potential person”. Because of this potential, it is argued, the embryo should be afforded the same status and protection as other human beings, including the right not to be killed. The difficultywith this argument is that, in other circumstances, we do not contend that something that has the potential to become something else should be treated now with an eye to that future entity. JohnHarris points out that we are all potentially dead, but we are not, and do not expect to be, treated now as though we were already dead.24 If it is the potential to become a person that is important then it is not clear why this status should rest only with embryos and fetuses and not, for example, with sperm and oocytes or, with developments in cell nuclear replacement, every cell from the human body.

For those who adopt the view that fertilisation marks the stage at which human life acquires moralstatus, abortion is only acceptable where it would be morally justified to kill one person to saveanother such as where there is a stark choice between saving the life of the mother and saving the lifeof the embryo or fetus. Fetal abnormality, however severe, would not justify abortion since this would be morally equivalent to killing a disabled child or adult. Post-coital contraception, IVFinvolving the creation of spare embryos and embryo research would also be unacceptable as eachinvolves the destruction of human embryos.

The development of the primitive streak

In terms of the early embryo, the development of the primitive streak at around 14 days after fertilisation is considered by some to be a morally significant stage of development. Until the development of the primitive streak it is possible for twinning to occur. Up until this point, therefore,the embryo could result in either one individual or more than one and so it is argued that it is not untilafter this point that the new individual is truly formed. At this stage it is also clear which cells will goto make up the embryo or embryos and which will form the placenta. This position has been supported in legislation as the limit up to which human embryos may be used for research purposes.Those who oppose this view argue that this is an arbitrary limit. Some take the view that because thefull complement of genetic material is present in the embryo from fertilisation there is no justificationfor setting the limit at any stage thereafter, while others argue that the there are other more appropriatestages of development such as the stage at which early neural development begins (around 17 days).

The development of brain functioning

On the basis that it is generally accepted that a person ceases to exist as a human being once his or herbrain has died, it has been argued that a person comes into existence when the brain starts to function.The development of the brain provides the capacity for sentience and for the organism to have someform of consciousness and self-awareness.25 It has been pointed out that it is because of our brains that human beings are considered to have special attributes to which we attach special moral value –such as the capacity to be autonomous, to think reflectively and to have free will.26 For this reason,

The terms “fertilisation” and “conception” are often used interchangeably in this context although it is moreaccurate to refer to the fusing of the gametes as “fertilisation” which marks the beginning of “conception” which is a process ending with successful implantation.

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the development of brain functioning is sometimes considered to be a morally significant stage ofdevelopment. (This is often understood to be at around 20 weeks’ gestation since it is during theperiod from 20-32 weeks after conception that rapid brain growth and development occurs.27)Opponents of this position point out that animals have brain functioning and sentience yet they arestill killed for food, for their skins, or for pleasure and so sentience alone cannot be the factor thatdetermines the onset of moral status.

Viability

For others, it is at the stage at which the fetus is capable of independent existence that the fetus achieves moral status. At this stage it is no longer entirely dependent upon its mother for its life and,given the right circumstances, would be capable of long-term survival (see page 15 for a discussionabout the current thresholds of viability). The principal problem with the viability criterion as a marker for the moral status of the fetus is that it is entirely dependent on the technological skills that are available and these will vary considerably around the world and over time.28 It has therefore beenargued that this limit should not influence our thinking about the intrinsic moral value of the fetus.

Birth

Birth has been put forward as being morally significant in terms of the status of the fetus for two reasons. First, it is the stage at which an independent being comes into existence – up until that point, the fetus was inside its mother’s uterus and totally dependent on her for nourishment and protection. Nobody except the mother can provide that care while the fetus is in utero but after birth this task canbe undertaken by anybody. This unique relationship often leads to the perception that, until birth, the fetus is not a separate being but is a part of the mother’s body. For this reason, some people argue that until birth it is the mother’s wishes and the need to respect her autonomous wishes that are relevant and not the interests of the fetus. Secondly, after birth, treatment can be given to the child withoutneeding to carry out invasive techniques on the mother. The practical implication of this is that beforebirth the woman’s consent needs to be sought for any intervention (including, some would argue, theinvasiveness of forcing a woman to continue an unwanted pregnancy) whereas after birth the child’sinterests are the only relevant factors to take into consideration in making treatment decisions.

Those who challenge the moral significance of birth argue that the expulsion of the fetus from thewoman’s body does not affect the intrinsic moral value of the fetus. There is no fundamentalphysiological difference between the fetus in utero and the baby after birth and, it is argued, the onlydifference is that one can be seen and the other is hidden and the level of protection the fetus isafforded should not be determined in this way.

Self-awareness

At the other end of the spectrum are those who link moral status with the development of self-awareness. For some it is self-consciousness and an awareness of one’s existence that is the mostimportant feature in acquiring moral status. Some go further, and argue that it is not only awarenessof one’s existence but the capacity to value that existence that is relevant. For those who see self-awareness as being the significant stage of development, a newborn would not be considered to have moral status since it lacks this awareness;29 such capabilities do not develop until some months after birth. From this perspective, in terms of harm to the individual, it is argued that there is no morallyrelevant difference between aborting a fetus at 12, 20 or 35 weeks’ gestation and infanticide. This also has implications for the moral value of adults who have lost, or never gained, self-awareness. For many people these conclusions are totally counter-intuitive and even abhorrent. Even those who support this position from a philosophical perspective, however, may nonetheless accept Warnock’sproposition that, in terms of public policy, one cannot ignore the deeply held moral views of largenumbers of the population.

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The gradualist approach

While this section has set out some of the key stages of development that have been presented as being morally significant in terms of the status of the fetus, it would be inappropriate to assume thateveryone’s views fit neatly into one of these positions. Many people would have difficulty with pin-pointing the stage at which they believe the fetus achieves moral status and do not believe that thefetus has no moral status until a particular stage of development, after which it deserves full and absolute protection. As Raanan Gillon has said, “The lack of clear dividing lines does not mean tosay that there are no differences: the problem is that the borders are fuzzy.”30 Most people’s views fall somewhere between the extremes described above, with many people taking more of a gradualist approach with the fetus being seen as gaining in moral status as it develops. The practical implicationof this is that as the fetus develops, and therefore gains moral status, the greater the justificationrequired for terminating the pregnancy. This view is reflected in the current legislation which permitsdifferent time limits for different grounds for abortion and has also been the basic approach adoptedby the BMA.

The legal status of the fetus

Although there is ongoing debate about the moral status of the fetus, it is clear in UK law that the fetus does not have any separate legal interests capable of being taken into account by a court.31

Although it had been suggested that the right of everyone to have their life protected by law, under Article 2 of the European Convention of Human Rights, could extend to the unborn, this was rejectedin 2004 in the case of Vo v France.32 In that case the European Court of Human Rights held thatArticle 2 did not confer a right to life that extended to a fetus. Given the wide degree of variance on this point in the domestic law of individual states, determination of the commencement of life camewithin the margin of appreciation, which gives states discretion regarding interpretation where noconsensus exists in Europe.

Fetal viability

During Parliamentary debate on the Human Fertilisation and Embryology Bill in the late 1980s considerable emphasis was placed on the gestational age at which a fetus was considered viable indeciding where the time limits should be set. This is the basis on which the 24 week limit was included in the current legislation. One of the arguments for reviewing the time limits for abortion is the belief that due to advances in medical technology fetuses are now viable before 24 weeks’gestation. There have certainly been major developments in the care of preterm infants and the use of antenatal corticosteroids, mechanical ventilation and exogenous surfactant replacement have beencited as a few of the major medical advances that have improved clinical outcomes for preterminfants.33 The extent to which these advances have significantly changed our understanding of thegestational age of fetal viability, however, depends to a considerable extent on how “viability” isdefined; whether, for example, it is understood to mean simply that the fetus is capable of being bornalive or, at the other extreme, that it is capable of surviving through childhood with no or minimaldisabilities, or whether some other definition of “viability” is used.

Although it is helpful to pinpoint a particular gestational age as being the point of viability, it is important also to bear in mind that gestational age is not the only factor that affects the possibility of a fetus being considered viable (however that is defined). Factors such as birth weight, whether it is a multiple pregnancy and the gender of the fetus also affect the likely outcome.34 Even if a fetus reaches a gestational age which is considered the minimum possible for viability, many others factorscome into play as to whether that particular fetus is or may be viable. Another relevant factor toconsider in discussing viability therefore is whether “fetal viability” relates to the minimum stagepossible for any fetus to survive or, for example, the stage at which the majority of infants willsurvive. Defining the gestational age of “fetal viability”, therefore, is by no means straightforward.

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What is meant by “viability”?

The term “viability” is subject to different interpretations. For some people it is considered to be synonymous with being “born alive”, irrespective of the length of time the baby survives or the extentand nature of any medical problems or disabilities. Using this definition of viability, an anencephalicnewborn who lacks all or most of the cerebral hemispheres, but is capable of using its lungs, would beconsidered viable. This was the view taken by Mr Justice Brooke in the 1991 legal case of Rance vMid-Downs HA35 in which he stated “The primary dictionary meaning of the word “viable”, which is derived from the French word “vie”, is “capable of living”… In my judgment the word “viable” wassimply being used [by Parliament] as a convenient shorthand for the words “capable of being born alive”.”

Other legal cases, however, have suggested that viability does not equate solely with being born alive. For example, in a case before the English courts in 198836 and the earlier American case of Roe vWade37 the notion of being capable of “meaningful life” is introduced. In the Roe v Wade judgment itwas said:

“With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the foetus then presumably has thecapability of meaningful life outside the mother’s womb” (emphasis added).

There was no expansion on the concept of “meaningful life” in these or subsequent legal cases but it might be argued that it requires, as a minimum, a reasonable period of survival.

How is gestational age calculated?

A further difficulty with pinpointing the gestational age at which fetuses are considered viable relatesto variations in the way in which gestational age is calculated. Gestational age has traditionally beencalculated, for medical purposes, from the date of the start of the woman’s last menstrual period which is notoriously unreliable. The National Institute for Clinical Excellence now recommends thatgestational age should be calculated by measuring the crown-rump length during the 10-13 week ultrasound scan.38 This should lead to greater consistency and accuracy in the timings used for medical purposes.

In law, however, there remains a modicum of uncertainty as to how the 24 week limit in the Abortion Act should be calculated. Kennedy and Grubb,39 for example, outline four possible dates from whichthe 24 weeks’ gestation could be calculated:

(A) the first day of the woman’s last period;(B) the date of conception;(C) the date of implantation;(D) the first day of the woman’s first missed period.

It is noted that Parliament introduced the 24 week time limit in 1990 on the basis of the medicalcalculation of the date of the last menstrual period. They go on to say, however:

“...the medical profession’s view is only as to when pregnancy begins and was not formulated with an eye to setting the upper time-limit for abortion. A pregnancy calculated on the basisof (A) of 25 weeks is likely, in fact, to be a case where conception and implantation will have occurred less than 24 weeks before the abortion. Ambiguities in criminal statutes should be construed in a defendant’s favour and not against him, particularly when interpreting asection providing a defence to a criminal offence”.

It is also important to ensure that women understand how gestational age is calculated so that those who wish to access abortion services can do so within the time limit.

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Professional guidance

Given that the survival of preterm infants is dependent, to a considerable extent, on the technologicalskills that are available, it is not surprising that notions of viability can be determined by geographicallocation. This is acknowledged by the World Health Organization which, in its 1998 guidance on resuscitation of newborn infants, says “Viability of the newborn in terms of gestational age may differ according to local circumstances.” It goes on to say, however, that “even with the best resourcesavailable, the rate of survival of newborns below 26 weeks of gestational age or 1000 g is low.”40

In the UK, past professional guidance referred to a viability cut-off point of 24 weeks. This was thelimit recommended by the Royal College of Obstetricians and Gynaecologists (RCOG) in the late 1980s which was quoted during debate on the 1990 Act.41 In 1997, the Scottish Executive Committee of the Royal College of Obstetricians and Gynaecologists restated this view when discussing thebenefits of antenatal corticosteroid administration, stating:

“The proposed lower limit of 24 weeks is based on the accepted lower limit of viability, and the upper limit of 34 weeks is an arbitrary limit beyond which cost-effectiveness isquestionable.”42

More recent guidance from the British Association of Perinatal Medicine43 introduces the concept of a“threshold of viability” as being the period from 22 to 26 weeks’ gestation. This concept is alsoreferred to in RCOG guidance from 2000 in which it advises that attempts should not be made tosupport the life of fetuses below the threshold of viability. Although the RCOG does not give its owndefinition of this concept, it refers to the BAPM guidance. Results from the EPICure study (outlinedin more detail below) on survival rates in 1995 concur with this view.

Gestation (weeks) Survival to discharge (%)

21 022 123 1124 2625 44

It is important to recognise that even though some babies have survived at a very early stage, the threshold of viability cannot be continually pushed back since there is a limit beyond which the lungs will simply be insufficiently developed to sustain life. While embryonic lungs start to form as early as four weeks into a pregnancy, their final maturation is continuing right up to the end of a normalpregnancy.

Research evidence on survival following preterm delivery

Data on viability, and particularly information that can be transferable to other units, can be difficultto obtain. This is because babies delivered at low gestations may not survive labour or past the delivery room, the data set can be small and many figures are obtained from single units where theremay be different policies and medical resources available that will impact on the results obtained.

The EPICure study

One of the most comprehensive and significant population studies currently underway that looks at viability is the EPICure study which featured on the Panorama programme – Miracle baby grows up.44 The study looked at the survival45 and later health status at 2½46 and 647 years old of childrenborn at 25 weeks or less gestation over a 10 month period in 1995 in the United Kingdom and Ireland.

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Further details on the study, for example the paediatric and psychological assessment methods andmeasurements used, can be found on the EPICure study website at www.nottingham.ac.uk/human-development/EPICure.

The outcomes of the study relevant to this paper can be summarised as follows:

Summary of Outcomes among Extremely Preterm Children48

Outcome 22 wk 23 wk 24 wk 25wk

Number (per cent)

Died in delivery room 116 (84) 110 (46) 84 (22) 67(16)Admitted for intensive care 22 (16) 131 (54) 298 (78) 357(84)Died in Neonatal Intensive Care Unit 20 (14) 105 (44) 198 (52) 171(40)Survived to discharge 2 (1) 26 (11) 100 (26) 186(44)Deaths post-discharge 0 1 (0.4) 2 (0.5) 3(0.7)Lost to follow-up 0 3 (1) 25 (7) 39(9)At 6 years of age:Survived with severe disability 1 (0.7) 5 (2) 21 (5) 26(6)Survived with moderate disability 0 9 (4) 16 (4) 32(8)Survived with mild disability 1 (0.7) 5 (2) 26 (7) 51(12)Survived with no impairment 0 3 (1) 10 (3) 35 (8)

The EPICure study defined degrees of disability as follows:

Severe disability - “if it was considered likely to make the child highly dependent on caregiversand if it included nonambulant cerebral palsy, and IQ score more than 3 SD below the mean,profound sensorineural hearing loss, or blindness”

Moderate disability – “if reasonable independence was likely to be reached and if it included ambulant cerebral palsy, and IQ score 2 to 3 SD below the mean, sensorineural hearing loss thatwas corrected with a hearing aid, and impaired vision without blindness”

Mild disability – “included neurological signs with minimal functional consequences or other impairment such as squints or refractive errors”49

Key points arising from the EPICure study

In relation to births up to 24 weeks’ gestation:

Of the 761 live births up to 24 weeks’ gestation: 41% died in the delivery room, 42% died in the neonatal intensive care unit; and of the 128 (17%) that survived to discharge, 2% subsequentlydied.

Of the 97 children born up to 24 weeks’ gestation who survived to discharge and were assessed at 6 years old: 28% had severe disability, 26% had moderate disability, 33% had mild disability and13% survived without impairment.

In relation to births up to 23 weeks’ gestation:

Of the 379 live births up to 23 weeks’ gestation: 60% died in the delivery room, 33% died in the neonatal intensive care unit; and of the 28 (7%) that survived to discharge, 1 subsequently died.

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Of the 24 children born up to 23 weeks’ gestation who survived to discharge and were assessed at 6 years old: 25% had severe disability, 38% had moderate disability, 25% had mild disability and12% survived without impairment.

In relation to births at 22 weeks:

Of the 138 live births at 22 weeks’ gestation, 84% died in the delivery room, 14% died in the neonatal intensive care unit and 2 survived to discharge (1%).

Of the 2 children born at 22 weeks’ gestation who survived to discharge, 1 had severe disabilityand 1 had mild disability at 6 years of age.

Trent health region study

The original survival data in the EPICure study were obtained in 1995. It is therefore helpful to lookat more recent data on survival rates which are available from studies such as the regional Trent health study. This study looked at all European and Asian live births, stillbirths, and late fetal losses from22 to 32 weeks’ gestation, excluding those with major congenital malformations. The original studyconsidered live births, stillbirths and late fetal losses in women resident in the Trent health region between 1 January 1994 and 31 December 1997.50

The data were updated for the 4,112 births at 22-32 weeks’ gestation that took place between 1 January 1998 and 31 December 2001.51 Among this latter group, although survival rates varied depending upon birth weight, the overall probability of survival to discharge home was as follows:

22 weeks 23 weeks 24 weeks 25 weeks

European births 7% 15% 29% 47%

Asian births 3% 11% 27% 51%

Although the number of births at 22-25 weeks is likely to be small, the methodology used for the study included making adjustments to take account of this fact in order to derive more accurate estimates of survival.

It is important to recognise that this study looked only at survival rates to discharge and did notprovide data on any degree of disability (mild, moderate or severe) in the children who survived, which was an important part of the EPICure study. It also excluded from the data any cases with major congenital malformations.

Fetal pain

As with fetal viability, some people believe that there is moral significance associated with when a fetus can “feel pain” and this has an impact on how the fetus is perceived in relation to the debate onabortion. Others believe that even if a fetus does not have moral status, it should nonetheless beprotected from pain in any abortion or therapeutic procedure undertaken.

At what point does a fetus experience pain?

The International Association for the Study of Pain defines pain as “an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of suchdamage.”52 Whether, and at what stage, a fetus experiences pain, and whether this will ever be determinable, have been the subject of much debate.53 Some argue that there are defined points duringthe development of the fetus when it acquires the physical structures to experiences pain and thereforeit may experience pain from this point onwards. Others argue that the experience of pain is not just

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about biological development54 but is also about factors acquired after birth, when certain coordinated cognitive faculties are in place and are exposed to the external environment; only then can a babybegin to “experience” and make sense of “pain”. For example, Fitzgerald reported to the Departmentof Health in 1995 “…true pain experience [develops] postnatally along with memory, anxiety andother cognitive brain functions”.55 Some go as far as to suggest that pain is not experienced untilapproximately 12 months of age.56

Interpretation of the evidence on fetal pain is conflicting, with some arguing that the fetus has thepotential to experience pain at ten weeks’ gestation,57 others arguing that this stage is not reached until26 weeks’ gestation (see below) and still others arguing for some unspecified gestational period in between,58,59,60 for example 17 weeks.61 It has been argued, however, that those who adopt a stageearly in fetal development confuse the notion of pain – as an experience – with reflex or hormonal“stress” responses.62 The Royal College of Obstetricians and Gynaecologists, following a detailed review of the evidence, argued that there is no possibility of fetal awareness before 26 weeks:

“It is possible by direct means to identify the minimum stage of structural development that is necessary – but not that which is sufficient – to confer awareness upon the developing fetus. This minimum stage of development, with structural integration of peripheral nerves, spinal cord, brain stem, thalamus and, finally, the cerebral cortex, has not begun before 26 weeks’ gestation.” 63

Although debate continues about whether, and if so when, the fetus can experience pain, current mainstream professional guidance suggests that a fetus cannot begin to have the possibility ofexperiencing pain until after 26 weeks’ gestation. This view is reflected in practical guidance on the use of analgesia during invasive procedures carried out on the fetus in utero.64 The BMA’s view isthat even if there is no incontrovertible evidence that fetuses experience pain, the use of pain relief, when carrying out invasive procedures, may help to relieve the anxiety of the parents and of health professionals.65

Public perceptions of fetal experiences

Confusion about the ability of the fetus to experience pain and to experience “human” emotions hasbeen exacerbated by media coverage in the summer of 2004 of the newly developed 4D scanner. The equipment produces detailed 3D/4D images showing fetuses apparently exhibiting behaviours such asyawning at 18 weeks, and smiling, blinking and crying at 26 weeks,66 behaviours that could beinterpreted as being associated with human emotional responses. Deborah Kirklin has pointed out that although not immediately apparent when viewing these clips, they are, in fact, video loops, with the same movements shown again and again. Thus, she says the “waving” fetus is an illusion created by showing the movement of the fetus’ arm, from left to right across its body over and over again.67 Thepowerful effect of these images, however, was to highlight the discomfort many people felt aboutterminating an entity which is so clearly recognisable as having human characteristics.

Diagnosing fetal abnormality

Some form of prenatal screening is offered routinely to every pregnant woman in the UK in order to identify those at high risk of having an affected child, so that prenatal testing for the disorder may beoffered. Screening may include maternal serum screening and ultrasound. Although ultrasoundscanning is undertaken primarily to monitor the development of the fetus, it can also detect both majorand minor defects and so may, in itself, offer a diagnosis as well as identifying those at high risk for whom further enquiries are necessary. A finding of potential abnormalities on serum screening, or soft markers at ultrasound (such as choroid plexus cyst, nuchal pad, head shape, short femur ortalipes) or a calculation of risk of a chromosomal abnormality greater than 1:250, leads to the offer offurther testing in order to achieve a definitive diagnosis.

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The objectives of prenatal screening and testing for fetal abnormality include the identification of:

Anomalies that are not compatible with life Anomalies associated with high morbidity and long-term disabilityFetal conditions with the potential for intrauterine therapyFetal conditions that will require postnatal investigation or treatment.68

In the past, some health professionals restricted access to prenatal diagnosis to those individuals whoplanned to terminate an affected pregnancy69 but this approach is now widely regarded as paternalistic and unacceptable. The termination of an affected pregnancy is one, but not the only, possible outcomeof prenatal diagnosis. For many people, prenatal diagnosis brings reassurance but, for those whoreceive an unfavourable result there can be practical benefits of having advance warning of the child’sdisability, such as early access to care and treatment and allowing the family time to come to termswith the child’s disability. Some women will, however, opt to terminate an affected pregnancy.

Written information should be provided to all women giving details of the nature and purpose of the screening proposed, the procedure used, details of detection rates for defined common conditions, themeaning of a positive and negative screening result, and possible actions to be taken if a normal or abnormal result is obtained.70 Based on this information, women should be free to opt into, or out of,any form of prenatal screening. The option of having no screening at all should be offered as areasonable and acceptable way forward.

Prenatal screening

What screening is offered?

Prenatal screening and testing has developed in an ad hoc fashion and despite attempts to standardiseits availability, provision still varies across the UK. In June 2003, the Government made acommitment in Our Inheritance, Our Future that by 2004/05 all pregnant women in England wouldbe offered antenatal screening for Down syndrome and by the end of 2004 antenatal screening forsickle cell and thalassaemia would be offered to women in high prevalence areas in England.71 InOctober 2003, the National Institute for Clinical Excellence (NICE) published a clinical guideline on antenatal care setting out the standards that should be met in England and Wales. In terms of screening for fetal anomalies, NICE recommends that:72

Pregnant women should be offered an ultrasound scan to screen for structural anomalies, ideallybetween 18 and 20 weeks’ gestation, by an appropriately trained sonographer and with equipmentof an appropriate standard as outlined by the National Screening Committee.

Pregnant women should be offered screening for Down syndrome with a test which provides the current standard of detection rate above 60% and a false-positive rate of less than 5%.

By April 2007, pregnant women should be offered screening for Down syndrome with a test which provides a detection rate above 75% and a false-positive rate of less than 3%.

In August 2004 NHS Quality Improvement Scotland (NHSQIS) published for consultation draft clinical standards for pregnancy and newborn screening in Scotland.73 This recommended that all women should be offered:

Screening for Down syndrome at 11-14 weeks or 15-20 weeks Screening for neural tube defects at 10-14 weeks or 15-20 weeks A fetal anomaly scan at 18-20 weeks’ gestation.

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Screening for structural anomalies

An early ultrasound scan is offered to most pregnant women, usually between 10 and 13 weeks’gestation. This is to date the pregnancy and to detect multiple pregnancies. Occasionally some gross abnormalities will show up at this stage but this is not intended as a fetal anomaly scan. In somehospitals the nuchal translucency at the back of the baby’s head is measured at this scan and a risk calculated for Down syndrome (see below).

The main fetal anomaly scan takes place at between 18 and 20 weeks’ gestation during which thefetus is examined for congenital abnormalities. Although not all hospitals follow a standard checklistfor this scan, the RCOG has devised a minimum standard which is set out below (see box). The RCOG has recommended that an “optimal” scan should also include additional features to improvethe detection of cardiac anomalies and facial cleft defects.74 NICE has recommended that all units in England and Wales should aspire to this “optimal” scan, whilst recognising that not all units are able to afford the additional scanning time or scans required to achieve this goal at the present time.75

Minimum standards for the 20 week anomaly scan, recommended by the RCOG76

Head shape and size and internal structures (cavum pellucidum, cerebellum, ventricular size at atrium < 10mm)Spine: longitudinal and transverseAbdominal shape and content at level of stomach Abdominal shape and content at level of kidneys and umbilicusRenal pelvis < 5 mm anterior-posterior measurementLongitudinal axis abdominal-thoracic appearance (diaphragm and bladder)Thorax at level of a four-chamber cardiac viewArms: three bones and hand (not counting fingers)Legs: three bones and foot (not counting toes)

Some conditions, such as anencephaly, can be diagnosed at the 18-20 week anomaly scan but, in other cases, further testing is required in order to obtain a definitive diagnosis. This may be obtained by amore detailed ultrasound scan, at a specialist centre if necessary, and/or by amniocentesis (see below).

The detection of fetal anomalies by ultrasound

Although a detailed anatomy check is undertaken, detection of structural anomalies will never be 100%. Detection rates vary depending upon the type of anomaly (detection rates range from 76% foranomalies of the central nervous system to 17% of cardiac defects77), the gestational age at scanning,the skill of the operator, the quality of the equipment used and the time allocated for the scan.

In July 2004, 3D/4D ultrasound images of developing fetuses were publicised. The images appearedto show fetuses smiling, waving and walking in the womb (see page 20). Some of the media reportingof these images erroneously implied that they reflected a significant development in the earlierdetection of fetal abnormality. This led to calls for a review of the Abortion Act with a view tolimiting the timescale within which abortion for fetal abnormality may lawfully be undertaken. It is important that any decisions about such matters should be based on good quality and factual information. The most up-to-date and sophisticated scanning equipment can provide excellent imagesof the fetus and this may affect the way in which some people perceive the fetus and its moral status(see page 12 on moral status of the fetus and page 15 for fetal viability). It is not the case, however,that the development of these scans has significantly changed the situation regarding the timing ofdiagnosis of fetal abnormality.

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Both the RCOG and NICE recommend that the most appropriate time to undertake the anomaly scanis 18-20 weeks. This is based on the stage at which, in most cases, the organs/structures will be sufficiently developed to make a reasonable assessment. For this reason, even though clearer imagesmay be available earlier of some organs/structures, this would not justify moving to earlier anomaly scans. For example, the vermis of the cerebellum is present at 15 weeks in 54% of cases but is notpresent in 100% of cases until around 19 weeks. Therefore if the anomaly scan was to be undertakenat 15 weeks, there would be a large number of cases which do not have the vermis of the cerebellumbut in most of those this would simply mean that it has not developed yet rather than that it is absent.

It is also important to recognise that the detection rates of abnormalities are dependent upon, amongstother factors, the quality of the equipment used. Whilst all units should aim to meet the minimumstandards for the quality of ultrasound scanning equipment set out by the RCOG,78 the type ofsophisticated equipment that was used to produce these 3D/4D images will not routinely be availablein antenatal units throughout the UK.

Screening for fetal abnormality

Maternal serum screening can take place in the first or second trimester of pregnancy and may be combined with nuchal translucency measurement (for Down syndrome) by ultrasound.

Current methods of screening include:

11-14 weeksNuchal translucency (NT) measured by ultrasoundThe combined test (nuchal translucency plus testing for maternal serum markers, human chorionicgonadotrophin (hCG) and pregnancy-associated plasma protein A (PAPP-A)

14-20 weeksThe triple test (testing for hCG, alphafetoprotein (AFP) and unconjugated oestriol (uE3)The quadruple test (testing for hCG, AFP, uE3 and dimeric inhibin A)

11-14 and 14-20 weeksThe integrated test (NT and PAPP-A at 11-14 weeks followed by the quadruple test at 14-20 weeks)The serum integrated test (PAPP-A at 11-14 weeks followed by the quadruple test at 14-20 weeks).

In relation to screening for Down syndrome, the information obtained from these tests is combinedwith the woman’s age and gestation of the fetus and a computer algorithm calculates the likelihood of an affected pregnancy. Women who are identified as being at high risk of having a child with Downsyndrome (greater than 1:250) will usually be offered pre-natal testing for the condition by the culture and analysis of fetal cells (see below). The AFP test can also help identify fetuses with neural tubedefects (such as anencephaly or spina bifida) or other severe anomalies such as kidney or abdominalwall defects, oesophageal or duodenal atresia or Turner’s syndrome.

Prenatal testing

Women who are identified as being at high risk of having a child with a disability – whether as aresult of screening (see above), family history, having had a previous affected pregnancy or fromgenetic carrier testing – are usually offered diagnostic testing for a confirmed diagnosis. These testsrequire invasive procedures – usually amniocentesis or chorionic villus sampling (CVS) – to collectfetal cells for analysis; both of these procedures involve a risk of miscarriage. The lowest level of risk is associated with amniocentesis undertaken after 15 weeks’ gestation; the highest level of risk isassociated with CVS when undertaken during either the first or second trimester.79 Despite theserisks, uptake of diagnostic testing after a high-risk screening result for Down syndrome is high, ranging from 43% to 77% (depending upon the magnitude of the risk).80 Between 1996 and 1999,94% of women with a positive diagnosis of Down syndrome opted to terminate the pregnancy.81

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When are fetal abnormalities diagnosed?

A diagnosis of fetal abnormality may be made at any stage of gestation:

some gross structural abnormalities will be evident at the initial ultrasound scan at 10-13 weeks;

results of CVS may be available from 11 weeks onwards, with initial results available a few dayslater;

amniocentesis may be undertaken from 15 weeks’ gestation, with the results available eitherwithin 48 hours or within 2-3 weeks depending on the technique used;

further testing – such as amniocentesis – may be required for those classified as high-risk following second trimester (14-20 weeks) screening for Down syndrome;

further testing – such as amniocentesis – may be required for those classified as high-risk following second trimester (14-20 weeks) maternal serum screening;

information obtained from the structural anomaly scan may provide a diagnosis at around 18-20weeks;

further testing – such as amniocentesis – may be required to follow up soft markers identified atthe anomaly scan at around 18-20 weeks;

further monitoring and investigation or scanning may be required if a potential problem is identified at the anomaly scan;

some conditions do not become evident until after 20 weeks, in particular cardiac defects whichare best diagnosed at 24 weeks, microcephaly, which may not develop until after 20 weeks’ gestation and some hydrocephalus associated with intra-cerebral bleeds or infections which maynot occur until 30 weeks’ gestation. Conditions such as these may not be evident until a non-routine scan is undertaken some time after 20 weeks, for example, because a problem has beenidentified with the pregnancy.

Decision-making following prenatal diagnosis

In some cases the disability diagnosed will meet the legal criteria for a termination of pregnancy (see below) and some women may wish to consider that option. At whatever stage fetal abnormality is diagnosed, women and their partners need good quality information about the implications of the result and the options open to them. Women will then need time and support to allow them to come toterms with the situation before deciding how to proceed. The vast majority of these pregnancies willbe wanted and the decision of whether to terminate a pregnancy in such circumstances is never easy.The fact that parents decide to terminate an affected pregnancy does not mean that they do notexperience an intense sense of loss and bereavement.

Very little research has been undertaken into the way parents make decisions following the diagnosis of severe fetal abnormality. This is partly because of the relatively small number of patients involvedbut also because of the inherent difficulty of obtaining valid consent and parents’ active co-operationat what is inevitably a time of great distress. As such there is very little information available abouthow women are counselled following diagnosis, what information and support they receive and how this affects the type and quality of decisions made.82 In a review of the research evidence available, however, Helen Statham reports that parents frequently speak of feeling “numb” and “deeplyshocked” when given the information. She says: “Once a diagnosis has been made, parents experience deep shock at the loss of what they had believed previously was a normal pregnancy,whatever the abnormality and whatever the decision they subsequently make. In shock, and

24


experiencing symptoms of acute grief including anger, despair, guilt, inadequacy, sleeping and eatingdifficulties they have no choice but to make decisions about the management and outcome of the pregnancy.”83

Whilst many of the studies conducted have yielded disparate results, all research data availablereinforce the difficulty for parents of deciding how to proceed in the face of a diagnosis of severe fetalabnormality. The two factors that parents report as being most important to them in making a decision are:

1. the impact of the abnormality on the child, on themselves and on other immediate familymembers (including those not yet born) and

2. their prior attitudes and beliefs about abortion.84

In terms of the severity of the abnormality, parents tends to focus less on quantifying risk and weighing up the various options in any mathematical sense and more on their perception of their ownability to cope.85 This judgment is made more difficult by the frequent lack of clear information about how severely the child will be affected. With many conditions, such as Down syndrome, there is afairly wide spectrum of disability; parents are required to make a decision with no way of knowing forsure how severely their own child will be affected.

Summarising the findings of studies that have attempted to quantify women’s responses followingtermination for pregnancy for fetal abnormality, Statham and her colleagues report that:

psychological distress is high in the immediate aftermath of termination of pregnancy with 40%of participants showing symptoms of psychiatric morbidity;this distress falls over time for most women;the nature and course of women’s psychological distress following termination of pregnancy for fetal abnormality is similar to that following spontaneous perinatal loss.86

The Abortion Act and fetal abnormality

“Serious handicap”

Section 1(1)(d) of the Abortion Act 1967, as amended, permits the termination of pregnancy where two doctors are of the opinion formed in good faith that:

“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.

The Act does not give any guidance about how “serious handicap” should be defined and nor have thecourts given any guidance as to how this phrase should be interpreted. The RCOG has listed anumber of factors that should be taken into consideration when assessing individual cases. These are:

the probability of effective treatment, either in utero or after birth; the probable degree of self-awareness and of ability to communicate with others; the suffering that would be experienced; the extent to which actions essential for health that normal individuals perform unaided wouldhave to be provided by others;the probability of being able to live alone and to be self-supporting as an adult.87

The BMA’s guidance lists the following factors:

the probability of effective treatment, either in utero or after birth; the probable potential for self-awareness and potential ability to communicate with others; the suffering that would be experienced by the child when born or by the people caring for thechild.88

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The question of how “serious handicap” should be defined was raised in the courts in 2003 when the Reverend Joanna Jepson sought a judicial review of the decision of the Chief Constable of West Mercia Constabulary not to pursue a prosecution of doctors who terminated a pregnancy at more than 24 weeks’ gestation, where the fetus had been diagnosed with bilateral cleft lip and palate. The police authorities had undertaken an investigation of the case and were satisfied that “the abortion was due toa bi-lateral cleft palate and was legally justified and procedurally correctly carried out”.89 Rev Jepson challenged this decision on the basis that bi-lateral cleft lip and palate was not a “serious handicap”and therefore the abortion had been unlawful. After hearing the application Lord Justice Rose andMr Justice Jackson held that the case raised serious issues of law and issues of public importance andso granted permission for a judicial review. Subsequent to that decision the police re-investigated the case and sent a file to the Crown Prosecution Service (CPS). The CPS announced in March 2005 thatthe doctors involved would not face prosecution. The Chief Crown Prosecutor for West Mercia CPS,Jim England, said that the doctors had decided in good faith that a substantial risk existed that the child would be seriously handicapped if born.90 In April 2005 it was reported that Rev Jepson wasplanning to revive her judicial review proceedings.91

Termination of pregnancy on grounds of fetal abnormalities

During 2003, a total of 1,941 abortions were carried out in England and Wales for fetal abnormality(ground E); this represents 1% of the total abortions performed in that year.92 As can be seen fromTables 8 and 10 in Appendix 1, the number of terminations under ground E has remained fairly staticover the last 10 years. A reduction in the amount of data published about terminations for fetal abnormality during 2003 makes it difficult to provide much analysis of these cases. More informationis available, however, from the published data for 2002 and 2001.

Abortions on grounds of fetal abnormality

200293 200194

Total 1,894 1,722

Of which: 24+ weeks’gestation

24+ weeks’gestation

Congenital malformation 889 100.00% 79 777 100.00% 63Malformations of thenervous system 411 46.23% 411 52.90%

Anencephaly 140 15.75% 148 19.05%Other 338 38.02% 218 28.06%

Chromosomal abnormalities 707 100.00% 25 591 100.00% 24Down syndrome 382 54.03% 347 58.71%Other 325 45.97% 244 41.29%

Other conditions 281 100.00% 10 285 100.00% 13Maternal factors 124 44.13% 89 31.23%Other 157 55.87% 196 68.77%

Factors that can delay abortion for fetal abnormality

The majority of terminations for fetal abnormality during 2001 took place from 13 to 19 weeks’gestation. Of a total of 1,722 abortions performed in 2001 for fetal abnormality in England and Wales (residents):

2.6% were performed at under 9 weeks 14.2% were performed at 9-12 weeks 48.6% were performed at 13-19 weeks 28.8% were performed at 20-24 weeks 5.8% were performed at more than 24 weeks.95

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Data on terminations for fetal abnormality by gestational age are not available for 2002 and 2003.The most common factor affecting the timing of abortion for fetal abnormality is the timing ofdiagnosis. Many fetal abnormalities are not diagnosed until the latter part of the second trimester.Even when tests are available earlier in pregnancy, some women do not present for antenatal careuntil late in their pregnancy, delaying the timing of diagnosis. After a diagnosis has been made,women may need more information and more time to make a decision about how to proceed. Somewomen may at first choose to continue with the pregnancy but later, after more consideration or after seeking more information, change their minds.

A 1987 paper produced jointly by the BMA, Royal College of Obstetricians and Gynaecologists(RCOG), Royal College of General Practitioners (RCGP), Royal College of Midwives (RCM), BritishPaediatric Association and the Clinical Genetics Society considering the advantages anddisadvantages of imposing an 18 week gestational age limit on legal abortion stated that late diagnosisof malformation was inevitable in some pregnancies. It went on to say “it would be inhumane tothese mothers, their babies and families to insist on the continuation of a pregnancy when the fetuswas known to be seriously abnormal”.96

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PART THREEINTERNATIONAL COMPARISONS

Abortion law in other countries

In discussions surrounding abortion there are sometimes misperceptions about abortion rates and legal permissibility of abortion in the UK in comparison with other countries. Some take the view, incorrectly, that abortion in the UK is particularly prevalent and that the law is very liberal incomparison to other countries. In June 2002 the United Nations published a detailed overview ofcountries’ policies on abortion worldwide - Abortion Policies: A Global Review97 and the BBCanalysed policies in Europe;98 both of these analyses suggest that this is not the case.

France

In France99 abortion can take place to save the life of the woman, to preserve physical and mentalhealth, for rape or incest, fetal impairment, economic or social reasons, and it is available on requestin some circumstances.

Under Law No. 79-1204 of 31 December 1979, abortion is available on request - the law requires a woman seeking an abortion to state that she is “in a situation of distress”; the decision to have anabortion, however, is entirely the decision of the woman. Abortion on these grounds must beperformed before the end of the twelfth week of pregnancy by a physician in an approved hospital.100

Beyond this stage abortion may be performed only if the pregnancy poses a grave danger to thewoman’s health or there is a strong probability that the expected child will suffer from a particularlysevere illness recognised as incurable. In this case, two physicians must certify that there is a risk to the health of the woman or fetus.

Germany

In Germany101 abortion can take place to save the life of the woman, to preserve physical and mentalhealth, for rape or incest, fetal impairment, economic or social reasons, and it is available on requestin some circumstances.

Abortion is available on request in the first 12 weeks of pregnancy if the pregnant woman finds herselfin a “situation of distress and conflict.” The pregnant woman must undergo counselling by someoneother than the physician performing the abortion and wait three days until the abortion is performed,before she makes the final decision. Abortions are also available up to 22 weeks of pregnancy if the woman is in “exceptional distress” (section 218a(4) Penal Code), and at any time during pregnancy toprevent a threat to the pregnant woman’s life or a serious threat to her physical or mental health.

The Netherlands

In the Netherlands102,103 abortion can take place to save the life of the woman, to preserve physicaland mental health, for rape or incest, fetal impairment, economic or social reasons, and it is availableon request in some circumstances. The Netherlands has one of the lowest abortion rates incomparison to other countries that permit abortion. The Netherlands Ministry of Foreign Affairs statesthat the reason for this low rate “is closely related to the widespread use of contraceptives in thiscountry.”104

Under the Pregnancy Termination Act 1984 (PTA) abortion is available on request up to the point ofviability – the absolute limit being 24 weeks (although in practice it tends to be just over 21 weeks). Such abortions must be performed by a doctor in a licensed hospital or clinic. A woman seeking anabortion must discuss her decision, and possible alternatives, with her doctor, and the doctor must establish that the decision has been taken voluntarily and after careful consideration. After this

28


discussion, the woman must wait at least five days before the abortion can be performed if the abortionis taking place more than 16 days after menstruation was due.

Czech Republic

In the Czech Republic105 abortion can take place to save the life of the woman, to preserve physicaland mental health, for rape or incest, fetal impairment, economic or social reasons, and it is availableon request in some circumstances.

Under Law No. 86/1950 (the Penal Code, sections 227-229), and subsequent amendments, a womanmakes a written request to her gynaecologist for the “artificial termination of pregnancy”. The gynaecologists will then inform her of the possible consequences of the procedure and of the availablemethods of birth control. “If gestation is under 12 weeks and no health contraindications for theprocedure exist, the doctor specifies the health centre where the procedure is to be performed. Ifgestation is over 12 weeks or if there are other contraindications, the request is reviewed by a medicalcommittee. Women who have had an abortion within six months are not permitted to undergo theprocedure unless they have had two deliveries, are at least 35 years of age or the pregnancy was theresult of a rape. Beyond the first trimester, the pregnancy can be terminated only if the woman’s life orhealth is endangered or in the case of suspected fetal impairment…

“Through the years, abortion has remained the preferred method of birth control in the CzechRepublic. Part of the reason was that abortion was free but contraceptives were not, and contraceptives were also difficult to obtain. The new 1986 law attempts to reduce the use of abortionby providing contraception (excluding condoms) free of charge and discouraging abortion by charginga fee for abortions performed after eight weeks of gestation. The fee can be waived only if theabortion is medically indicated.”106 Although between 1986 and 1987 there was an increase in the number of abortions performed, this was followed by a 65% drop in the number of abortionsperformed between 1989 and 2004.

Russia

In Russia107 abortion can take place to save the life of the woman, preserve physical and mental health,for rape or incest, fetal impairment, economic or social reasons, and it is available on request up to 12weeks’ gestation. Russia is often cited as having one of the highest abortion rates in the world withan estimated 13 terminations for every 10 live births in 2003.108 Abortion is considered to be one of the main methods of fertility control, although this may be changing (see table below). Between 1988and 2001, modern contraceptive use increased in Russia by 74%, while the abortion rate declined by61%.109

020406080

100120140160180200

1988

1990

1992

1994

1996

1998

2000

2002

Percent of 1988 rate

ModerncontraceptivesAbortion

Source: Westoff C, unpublished data, 2003.

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An abortion requires the consent of the pregnant woman; it is authorised if performed by a licensedphysician in a hospital or other recognised medical institution. Abortion is available on request duringthe first 12 weeks of gestation. Thereafter, abortion between 12 and 22 weeks of pregnancy is permitted for rape, imprisonment of the pregnant woman or her husband, death or severe disability of husband, and a court ruling stripping a woman of parental rights (previously there had been 13special circumstances, including divorce, poverty and poor housing).110

Abortion rates

The United Nations summarises a selection of abortion rates as follows:

0

10

20

30

40

50

60

70

80

90Ireland *NetherlandsSpainSwitzerlandGermanyFinlandItalyFranceCroatiaNorwayEng & WalesCzech Rep.YugoslaviaRussiaRomania

* Based on the Republic of Ireland residents who obtained abortions in England.

Abortions per 1,000 women aged 15-44111

The United Nations has evaluated the policies of a number of countries comparing abortion rates withavailability and uptake of modern contraception among married women. Its findings are as follows:

“The percentage of currently married women aged 15-49 years that use modern contraception provides an indication of the actual availability of contraceptives.

Use of contraception is inversely associated with abortion at the aggregate level.

A low availability of modern contraceptives tends to be correlated with high abortion rates.

Conversely, when modern contraceptive methods are widely available and are used effectively,abortion rates tend to be relatively lower.

At the individual level, the use of contraception is positively associated with the practice ofabortion. Women that have used a contraceptive method are at some time, on average, morelikely to resort to abortion than those that have never used any contraceptive method. However,women that have had an abortion are more likely to use contraception than women that have

30


never done so. It has been suggested that contraceptive use increases after an abortion because of the provision of contraceptives and counselling in abortion clinics.” 112

Grounds for abortion

Recent estimates113 suggest that 41% of the estimated 46 million abortions that take place worldwideare performed illegally.

In the 2003 United Nations report - World Population Policies 2003,114 the following key pointsemerge:

“Abortion to save the woman’s life is permitted in nearly all developed (96 per cent) anddeveloping (99 per cent) countries.”

Other grounds for abortion are to preserve the physical health of the women (64 per cent of countries), to preserve mental health (62 per cent), in case of rape or incest (45 per cent), fetalimpairment (41 per cent), economic or social reasons (34 per cent), and on request (28 per cent).

The grounds on which abortion is permitted vary greatly among development regions (see figure below). For example, abortion is permitted upon request in 67 per cent of developed countries, but 15 per cent of developing countries, and for economic and social reasons in 77 per cent of developed countries and 19 per cent of developing countries.”

Grounds on which abortion is permitted, 2003

15On request 67

19Economic or social reasons 77

27Foetal impairment 83

32Rape or incest83

54

Abortion “on request”

In terms of abortion “on request”, the United Nations Population Division Department of Economicand Social Affairs reports several countries where abortion is “available on request” up to certaingestational limits, including Australia, Austria, Belgium, Canada, Denmark, France, Germany, Italy,Sweden and USA.115 It is reported that abortion is not available on request in countries such as NewZealand, Spain, Switzerland and the UK.

96

88

85

99

56

0 20 40 60 80 100

To save the woman's life

To preserve physical health

To preserve mental health

Percentage of countries

Less developed regionsMore developed regions

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Given the diversity in legal systems, terminology, and the gap that sometimes arises between policyand practice, it is difficult to map where and to what extent abortion is actually “available on request”in practice. The United Nations has classified countries where abortion is “available on request” as being where “…a pregnant woman seeking an abortion is not required to justify her desire to have anabortion under the law. She needs only to find a physician who is willing to perform the abortion. In a number of countries, such as Albania, Belgium and France, she may be required to state that she is in a situation of crisis or distress. This requirement, however, is purely a formality and the decision to have the abortion is still completely her own so long as she finds a physician who agrees to perform the abortion… Even in countries where abortion is allowed on request, time limits are usually set for the performance of the abortion, often within the first trimester. After this stage of pregnancy, the woman must present a valid ground for the abortion to be permitted.”

Upper time limits for abortions

Reviewing legislation on the upper time limits for abortion in a number of countries it is clear that countries adopt a variety of upper time limits and that a number of countries do not set any legal upper limits. It is also clear, however, that there is frequently a difference between what is legallypermissible and what is available in practice. Although technically legally permissible in somecountries up to certain time periods, the restrictiveness of the grounds for abortion and the cultural attitude to later abortions means that later abortions are not necessarily accepted or available inpractice.

An outline of some countries’ upper abortion limits can be found below:

no upper limit Croatia - to prevent grave permanent injury to the physical or mental health of the pregnant woman; risk to the life of the pregnant woman; rape or incest; or severe fetal abnormality.

England, Scotland and Wales – to prevent grave permanent injury to thephysical or mental health of the pregnant woman; risk to the life of the pregnant woman; or severe fetal abnormality.

France - to prevent grave permanent injury to the physical or mental health of the pregnant woman; risk to the life of the pregnant woman; or child will suffer from a particularly severe illness recognised as incurable.

Germany – to prevent a threat to the pregnant woman’s life or a serious threat to her physical or mental health.

Italy - to prevent grave permanent injury to the physical or mental health of the pregnant woman; risk to the life of the pregnant woman; or severe fetal abnormality.

Switzerland – to prevent grave permanent injury to the physical or mentalhealth of the pregnant woman; or risk to the life of the pregnant woman.

Turkey - to prevent grave permanent injury to the physical or mental healthof the pregnant woman; risk to the life of the pregnant woman; or severe fetal abnormality.

up to 24 weeks England, Scotland and Wales – if the continuance of the pregnancy wouldinvolve risk, greater than if the pregnancy were terminated, of injury to thephysical or mental health of the pregnant woman or any existing children ofher family.

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Finland – for severe fetal abnormality.

up to 22 weeks Germany – for “exceptional distress”.

Russia - for rape, imprisonment of the pregnant woman or her husband, deathor severe disability of husband, and a court ruling stripping a woman of parental rights.

Spain – for severe fetal abnormality.

Abortion law - risks for women

In a note available on the United Nations website, the United Nations Population Fund (UNFPA)notes that:116

“Restrictive abortion laws do not prevent abortion but force women to seek illegal and usuallyunsafe abortions. In Latin America, where abortion is almost completely illegal, the rate isbetween 30 to 60 per 1,000. In the Netherlands, with Europe's most liberal abortion law, only fiveout of 1,000 women opt for abortion. The average for Western Europe is 14 abortions per 1,000women.

Some 99 per cent of the estimated 585,000 maternal deaths worldwide annually occur in poorercountries. Of these deaths, 13 per cent are a result of complications from unsafe abortions.

More women resort to abortion where family planning services and sex education are poor.

Unsafe abortions account for some 25-50 per cent of maternal deaths in refugee situations.”

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PART FOUR SOME CURRENT PROPOSALS FOR LAW REFORM

Repeal of the Abortion Act

Given the range of views on abortion within society it is not surprising that a very wide range of different proposals for law reform have been suggested, including complete repeal of the existinglegislation. The Pro-life Alliance’s manifesto, for example, states its commitment to campaigning for the repeal of the Abortion Act 1967 so that all abortion is outlawed except “when the baby’s death is brought about indirectly, for example, as a side-effect of medical treatment for the mother”.117 Othershave argued for the complete deregulation of abortion118 and for abortion to be subject to no morelegal constraints than any other clinical procedure.119

Reforming the existing legal framework

Suggestions have also been put forward for retaining the overall framework of the legislation butamending the current time limits or restrictions. Some of these proposals are briefly summarisedbelow. The BMA has long supported the extension of the Abortion Act to Northern Ireland and, in 1989 supported the 24 week limit for abortion in all but the most extreme cases but, with those exceptions, the Association has not expressed a view on these proposals for reforming the existing legal framework.

Abortion on request up to 14 weeks’ gestation

Organisations such as Voice for Choice, a coalition of groups calling for reform of the Abortion Act, have campaigned for women to be allowed to decide for themselves whether to continue an unwanted pregnancy. Among the amendments called for is abortion on request up to and including 14 weeks of pregnancy.120 Under this proposal, abortion would be seen as the same as other reproductive medicineservices available on request, with consent, and without the need for the “approval” of doctors.

Provisions to improve access to early abortions

Some women report delays in obtaining access to abortion once they have opted to terminate theirpregnancy. A number of proposals have been made to improve provision and access to earlyabortions and to make them easier and more accessible to women; some of these would requirechanges to the legislation. The FPA has suggested, for example, that waiting times could be cut by allowing nurses to perform early abortions.121 Currently only registered medical practitioners mayperform abortions although some parts of the procedure can be delegated. The FPA has also called for early abortions to be available in a wider range of settings, including GP surgeries and for women to be offered a choice of methods and procedures. 122 They, and BPAS,123 also argue that women shouldbe permitted to have early medical abortions at home if that is their choice.

Easier access to abortion up to the legal limit of 24 weeks

Among the proposals for law reform put forward by Voice for Choice is the suggestion that abortionsfrom 15 to 24 weeks should be available with the approval of only one doctor.

Reducing the upper limit

In the summer of 2004 a series of events led to public debate about whether the upper limit of 24 weeks for most abortions was still appropriate. Some suggestions were made that the scientific and

34


medical information should be reassessed to determine whether medical advances since 1990 had led to a reduction in the gestational age at which babies could be considered viable and, in the light ofthat, whether a reduction to 22 weeks might be appropriate124 (see page 15 on fetal viability). Michael Howard, the leader of the Conservative Party, has called for the limit to be reduced to 20 weeks.125

Restricting the definition of “serious handicap”

There have been calls for the legislation to be clearer about what “serious handicap” means and how itshould be interpreted in practice. It has been argued by some that this phrase has been interpreted too broadly and access to abortion on this ground needs to be restricted.126

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APPENDIX ONE

ADDITIONAL STATISTICS

England and Wales

Table 7 Number of abortions for residents of England and Wales by age of woman 1994-2003

Under15 15 16-19 20-24 25-29 30-34 35-39 40-44 45 and

over

1994 1,080 2,166 25,223 44,871 38,081 25,507 14,156 5,008 440

1995 946 2,324 24,945 43,394 37,254 25,759 14,352 4,868 457

1996 1,098 2,547 28,790 46,356 39,311 28,228 16,118 5,027 428

1997 1,020 2,414 29,947 44,960 40,159 28,892 16,858 5,413 482

1998 1,103 2,656 33,236 45,766 40,366 30,449 18,174 5,576 511

1999 1,066 2,537 32,807 45,004 38,492 29,139 18,341 5,755 502

2000 1,048 2,700 33,218 47,099 37,852 28,735 18,589 5,794 459

2001 1,066 2,592 33,431 48,267 36,506 28,782 19,146 6,094 456

2002 1,075 2,658 32,985 48,359 35,795 28,503 19,450 6,531 457

2003 1,171 2,796 34,247 51,124 36,018 28,749 19,868 7,032 500

Fig. 7a

0

10,000

20,000

30,000

40,000

50,000

60,000

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003

Under 15 15 16-19 20-24 25-2930-34 35-39 40-44 45 and over

36



0% 20% 40% 60% 80% 100%

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

Under 16 16-24 25-34 35-44 45 and over

Table 8 Number of abortions for residents of England and Wales by legal grounds for termination1994-2003

A alone orwith B, C or D

B alone or with C or D C alone D alone or

with CE alone or with

A, B, C or D F or G

1994 146 3,194 137,029 14,373 1,796 11995 126 2,387 136,928 13,051 1,823 01996 128 2,443 151,550 11,863 1,929 31997 117 1,981 155,164 11,026 1,853 41998 106 2,030 162,701 11,202 1,830 21999 94 1,836 159,444 10,513 1,813 12000 134 1,644 162,358 9,570 1,833 32001 61 1,572 164,306 8,703 1,722 02002 116 1,769 165,063 7,089 1,894 12003 137 2,218 171,039 6,247 1,941 0

A the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancywere terminated (no time limit)

B the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman(no time limit)

C the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to thephysical or mental health of the woman (24 weeks)

D the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to thephysical or mental health of any existing children of the family of the woman (24 weeks)

E there is a substantial risk that the child would suffer from such physical and mental abnormalities as to be seriously handicapped (no limit)

F or G in an emergency situation to save the life of the pregnant woman or to prevent grave permanent injury to her physicalor mental health.

37


Fig. 8a As percent of whole

0% 20% 40% 60% 80% 100%

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

A alone or with B, C or D B alone or with C or DC alone D alone or with CE alone or with A, B, C or D F or G

Scotland

Table 9 Number of abortions performed in Scotland, by age of woman, 1994-2003

Under 16 16-19 20-24 25-29 30-34 35-39 40+1994 293 2,312 3,486 2,431 1,648 877 3451995 312 2,169 3,399 2,438 1,609 887 3291996 323 2,362 3,571 2,603 1,801 960 3581997 289 2,431 3,444 2,651 1,854 1,093 3471998 286 2,707 3,426 2,749 1,807 1,149 3611999 251 2,635 3,354 2,554 1,810 1,180 3842000 274 2,610 3,355 2,403 1,769 1,177 4092001 276 2,722 3,462 2,322 1,818 1,127 401

2002 271 2.633 3,419 2,157 1,728 1,156 407

2003 p 313 2,772 3,654 2,223 1,712 1,107 436p = provisional

38


Fig. 9a

0

500

1000

1500

2000

2500

3000

3500

4000

1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 p

Under 16 16-19 20-24 25-29 30-34 35-39 40+


0% 20% 40% 60% 80% 100%

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003 p

Under 16 16-19 20-24 25-29 30-34 35-39 40+

39


Table 10 Number of abortions performed in Scotland, by legal grounds for termination, 1994-2003

A B C D E F G1994 6 41 10,862 538 142 0 01995 7 35 10,840 580 139 0 11996 4 38 11,713 171 166 0 01997 10 27 11,868 148 148 0 01998 7 26 12,245 165 169 0 01999 8 20 11,936 133 146 0 02000 5 70 11,671 139 154 2 02001 6 14 11,868 126 141 0 02002 3 30 11,370 240 144 0 0

2003p 4 13 11,745 293 172 0 0As some notifications record more than one Statutory Ground, the numbers of Grounds exceed the totalnumber of abortions.p Provisional

A the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancywere terminated (no time limit)

B the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman(no time limit)

C the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to thephysical or mental health of the woman (24 weeks)

D the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to thephysical or mental health of any existing children of the family of the woman (24 weeks)

E there is a substantial risk that the child would suffer from such physical and mental abnormalities as to be seriously handicapped (no limit)

F or G in an emergency situation to save the life of the pregnant woman or to prevent grave permanent injury to her physicalor mental health.

Fig. 10 As percent of total

0% 20% 40% 60% 80% 100%

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003 p

A B C D E F G

40


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