chapter  7
20 Pages

ABORTION

Abortion means ending a pregnancy by destroying the foetus. There were 175,600 abortions performed for women resident in England and Wales in 2002. Additionally, there were 9,400 abortions for non-residents. Three quarters of the abortions were for single women. The issue of abortion raises some of the most profound questions in medical law and ethics. When does human life begin? When does a ‘person’ come into existence? Does a foetus have a right to life? Does a woman have the right to do what she wants with her own body? The debate on abortion has polarised between those who claim that the foetus has a right to life (pro-life) and those who argue that a woman has the right to do what she wants with her own body (right to choose). A deontological (duty) approach would argue that there is a duty to maintain life (sanctity of life) and would not allow abortions. The utilitarian view would consider whether the consequences of having abortions were better for the overall good of society than not having them, with no particular concern for the foetus. Many of the issues cannot be solved and the law often has to take a pragmatic line, at the risk of pleasing neither side.

Abortion was a misdemeanour at common law. Various Acts of Parliament were passed in the 19th century which made abortion a criminal offence, culminating in the Offences Against the Person Act (OAPA) 1861. Section 58 of this Act provides that it is an offence for a pregnant woman to give herself poison or to unlawfully use an instrument or other means with intent to procure a miscarriage. The section also provides that anyone else who unlawfully gives a woman poison or unlawfully uses an instrument to procure a miscarriage commits an offence. In the case of someone apart from the woman herself carrying out the act, they may be convicted, whether the woman is pregnant or not, but they must have had a belief that she was pregnant. In R v Dhingra (1991), a doctor fitted a coil (IUD) to a woman 11 days after she had intercourse. He was charged under s 58. The court held that he should be acquitted because medical evidence was given that implantation could not have taken place.