This article appears in the August 2003 edition of the Catholic Medical Quarterly

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The Grounds for Abortion

Peter Ellis

Having seen on the Web the Article in your November 2001 edition "Whose Rights Are They?", I though I might write to you as I was the author of the article in ALDU's News and Comments (Summer 2001, No. 90,) to which you referred.

I was, in part, stimulated to write that article by the article of Andrew Grubb (Senior Lecturer in Law, King's College, London) in The Criminal Law Review 1991, 659. At pages 661and 662 he said this.. "The maternal medical ground, either alone or in conjunction with the familial medical ground, has been the basis for the majority of terminations of pregnancy. Many of these terminations involve what has become known as social abortions performed because the pregnancy is unwanted and an inconvenience to the mother and her family. Distress and pressure generated by the unwanted pregnancy are only too readily seen as creating a risk to the mental health of the woman. Two doctors are readily able to certify that there is a greater risk to a pregnant woman's mental health if she is forced to have an unwanted child than if an abortion is performed, certainly early on in the pregnancy where the risks inherent in the abortion procedures are very low.... Ultimately the doctors must form an opinion that the ground applies to this individual and not solely on the basis of abstract statistics. It is of course, the reality of how the Act is applied in practice that has led to allegations that the Act permits abortion on demand or, more accurately, abortion on request. Two factors suggest that, in practice, nothing will change in this respect. First, under section 1(1) the certifying doctors need only form the opinion "in good faith" that the matters set out exist. The Act does not require that they objectively do exist. Honesty seems to be sufficient to satisfy the Act. Secondly, the decision to perform an abortion is, subject to the regulatory requirements under the Act, a private one between doctor and patient. No other individual has standing prospectively to challenge the legality of an abortion under English law."

It seemed to me that providing two doctors, in good faith, could say there was some risk, albeit the very slightest, of some physical or mental injury (ie impairment), albeit of the most minimal nature, to the woman or any of her existing family (more than if the abortion was performed), the requirements of the Act would be satisfied. This is hardly a particularly demanding test; presumably just some slightest risk of anxiety of the mother or sibling jealousy, for example, would be enough. Indeed, if the doctors could see no reason to dispute what the mother said in such respects, they could under the Act be bound to certify.

The apparent leaning of the authorities of the ECHR seems hitherto to be in line with the foregoing. In Paton, it seems that feeling unable to cope and of being close to a nervous breakdown and having medical treatment was the ground. In the Norwegian case it appears that it was sufficient if it was merely that "the pregnancy, birth or care of the child might place her in a difficult position of life".

Under English law, the unborn child has no legally enforceable rights, although after birth it can sue for injuries caused to it while in the womb (eg as a result of a negligent road accident). My own view is that, probably when the Convention was formulated, the actual intention was for it to be not applicable to unborn life. I believe though that the drafting documents may throw no light on this question.

The ECHR decisions have been based upon deliberate evasion of the issue of whether or not Article 2 applies to unborn life. There have been indications that it was thought that it might so do. In the Norwegian case the Commission even held that "it will not exclude that in certain circumstances this might be the case". However this has been followed by the assertion that it was not necessary to decide the point because even if it did apply, there was a discretion for states to limit the prohibition where the facts indicated some impairment of the mother's needs (even, as we have seen, of pretty trivial subjective apprehensions).

This, I suggest, is a thoroughly dishonest and shameful response. It puts the argument the wrong way round. It should rather be whether, assuming that the Article did apply to unborn human life, and that the right to life was such an extremely important convention right, it ought to be limited, potentially, to such trivial grounds as virtually merely maternal preference; in effect virtually abortion on demand and the mother's right to do absolutely as she wished with her body. But what then of those states, who in their discretion determine that the mother's right under Article 8 not to have her private life subjected to interference is not absolute and can under Article 8 be limited, under national law? This was the position in the Bruggemann case where the Commission held that such a limitation was justified where there was state legislation limiting the woman's right to have an abortion. The grounds for the decision of the majority of members (and there were dissenting opinions) seems to me to be thoroughly muddled.

If it could be adjudicated that the discretion, if it arose, required there to be a more serious risk than that allowed under UK law, and ECHR jurisprudence to date, then surely it would be necessary for it to be determined whether or not Article 2 did apply to unborn life. Incidentally, it is interesting to note that the Commission in Bruggemann held that "There can be no doubt that certain interests relating to pregnancy are legally protected, eg as shown by a survey of the legal order in 13 High Contracting Parties. This survey reveals that, without exception, certain rights are attributed to the conceived but unborn child, particularly the right to inherit. The Commission also notes that Art 6(6) of the United Nations Convention on Civil and Political Rights prohibits the execution of death sentences on pregnant women". Of course it is possible for those utterances of the Commission to be over-ruled or qualified by later decision, and I am not aware of any other cases or relevant material that there might be, since I wrote my article.

I might add that personally, and as a Catholic, I believe all abortion to be wrong. But it could be unrealistic to expect that ethical standard to be applied to all, because it depends essentially today upon a belief that God exists and that He condemns all abortion. This is hardly realistic in the context of the liberal society and constitutions of European states generally. But I do believe it to be logically indefensible for there to be a principle of limitation, but for it to apply in really the most trivial of circumstances. There should either be the principle of no restriction at all on a mother's absolute right to do what she wanted with regard to her unborn child, or if limitations there are to be, they should be significant.

As I have said, I myself suspect that Article 2 was never intended to apply to unborn life. But I believe it would be honest now to declare the position clearly and not evade it by specious arguments. There is then, of course, the important point of whether the Article ought to apply to unborn human life.

I remain of the view that it is desirable that the point should be tested by the application of an aggrieved father in a case having the appropriate facts.

Mr. R.P. Ellis is a retired barrister and member of the Association of Lawyers for the Defence of the Unborn