Abortion time limits
A briefing paper from the BMA
Part one - Background to the debate
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.' [Go to reference 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 unhygienic conditions.
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. [Go to reference 4]. The 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. [Go to reference 5]. In the 1989 debate on the Human Fertilisation and Embryology Bill, Sir David Steel also acknowledged the inevitable lack of accurate statistics on abortion before 1967 but quoted figures obtained from the Department 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 dying as a result of abortions, for the three years from 1985 to 1987, the figure was four. [Go to reference 6]
England, Scotland and Wales
In England, Scotland and Wales the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990) permits the termination of pregnancy, by a registered medical practitioner, up to 24 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 her family'.
The 1990 amendments to the Act removed pre-existing links with the Infant Life Preservation Act 1929 which had made it illegal to “destroy the life of a child capable of being born alive” with a presumption that a child was capable of being born alive after 28 weeks’ gestation. As a result, a pregnancy 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 than if the pregnancy were terminated; or
'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 abortion takes 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 but which 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 is provided in BMA guidance. [Go to reference 7]. On the particular issue of time limits, however, the wording of the clause appears to permit doctors to opt out of some but not all abortions, where their beliefs lead them to make a distinction. [Go to reference 8]. So, for example, some doctors may be willing to participate in early abortions but 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 should nonetheless 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 miscarriage unlawfully”. Doctors in Northern Ireland must use the guidance provided from existing case law to interpret 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 Northern Ireland. In July 2003 the court rejected the FPA’s claim [Go to reference 9] but this was overturned on appeal in 2004. [Go to reference 10]. Following this successful appeal, the Health Minister of Northern Ireland is expected to produce guidance for doctors on the circumstances in which abortion is lawful although no time has been announced 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 the same 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.'