The Law and ethics of
Post Viability Abortion
By Dr. Andrew Fergusson and Ann Furedi
What follows is a transcript of papers given at a seminar
held at Kent University Law School in the Autumn Term 1997.
The seminar was organised by Ellie Lee, a student at Kent
University and Co-Ordinator of Pro-Choice Forum, to give
staff and students the opportunity to discuss issues surrounding
fertility, ethics and the law.
Dr. Andrew Fergusson:
To begin with I would like to say something about myself
to explain why have an interest in this subject. I qualified
in medicine at St. Thomas's Hospital in London in 1975 and
I worked in hospital medicine in both acute and intensive
care with adults and in chronic geriatric medicine for four
years. I spent 10 years as a GP in a roughish area in south-east
London and I had particular interests personally in the
elderly and in young people with chronic physical disabilities.
In the course of that ten years I probably sat with around
about 100 women requesting abortion, (roughly one a month)
for ten years, and I have signed the green forms for abortion
(that is the colour they were then). For the last eight
or nine years I have been working full-time with an organisation
called the Christian Medical Fellowship. 4 500 British doctors
all over the United Kingdom, in general practice and in
all sorts of different specialities, are members. I also
write, teach and broadcast about ethics. I am not an expert
on abortion and it may well be there are details in the
legal situation that I am not up to speed with, but I think
that my contribution tonight should be on the 'big picture'.
Since I work for Christian Medical Fellowship I am a traditional
'Bible believing Christian'. We have to recognise without
tension that our own particular view is what makes the world
'tick' and what makes human beings tick are going to colour
our discussion for this evening.
The law and ethics of post viability abortion is our subject.
In this introduction I thought that I would run through
the legal indications for abortion in the UK since the law
was changed in 1990. I am going to use the terminology which
is actually on the certificates which the doctors sign.
There is a form called certificate A, which has five clauses,
(a)-(e), and there is certificate B for emergency treatment
which has got two clauses, (f) and (g). With certificate
A, clause (a) says it is lawful for termination of pregnancy
to be performed if two doctors forming their opinion in
good faith before the surgical procedure is done, and looking
at the circumstances of that particular case only, believe
that the continuance of the pregnancy would involve risk
to the life of the pregnant woman greater than if the pregnancy
Under clause (b) the termination is necessary to prevent
grave permanent injury to the physical or mental health
of the pregnant woman. So we are talking about health risks
to the woman.
Clause (c) says that the pregnancy has not exceeded 24 weeks
and that 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.
So we are not talking about grave permanent injury, we are
talking about injury to the physical or mental health of
the pregnant woman but the pregnancy has not exceeded its
Clause (d) says that the pregnancy again has not exceeded
its 24th week and that the continuance of the pregnancy
would involve risk greater than if the pregnancy were terminated
of injury to the physical or mental health of any existing
child or children of the family of the pregnant woman. Again,
there is that 24 week limit there in the Act. It is this
next clause of Certificate A that is really our subject
now, because we do not here see the 24 week limit.
Under Clause (e) abortion can be performed legally if there
is substantial risk that if the child were born it would
suffer from such physical or mental abnormalities as to
be seriously handicapped. There is no reference to 24 weeks
and in law this clause operates to term of the pregnancy.
For the sake of completeness there is the other certificate,
certificate B for emergency treatment only. This says termination
is immediately necessary under clause (f), to save the life
of the pregnant woman and under clause (g) to prevent grave
permanent injury to the physical or mental health of the
There are then seven clauses in total, two of them are restricted
to the first 24 weeks, five of them operate to term. In
1990 the law was changed to bring the upper limit for termination
in two of those categories down to 24 weeks of gestation.
Why pick on 24 weeks? There was an understanding before
1990 that 28 weeks was the viability point. This came from
the Infant Life Preservation Act. There was no specific
limit set in the 1967 Abortion Act but a previous piece
of legislation led to a concept that you could do abortions
up to 28 weeks. So why the reduction to 24 weeks?
There are two reasons and the main one is that of neo-natal
care. This is about the ability of doctors, nurses and other
health professionals to look after very small babies who
were born naturally but early. The ability of doctors to
preserve life in those situations developed rapidly as the
technology came along. If you spend enough money, if you
have got paediatric intensive care neo-natal beds, you can
get children born at 26, 25 and 24 weeks surviving, leaving
hospital a long time after with a good medical outcome in
terms of physical and mental abilities later. So now we
have got down to 24 weeks in terms of what is called viability,
hence our topic heading, the law and ethics of post viability
The other issue which is important is the issue of sentience
and awareness. Over the last year or so and particularly
in the last couple of weeks that there has been discussion
about at what point a fetus feels pain. The Royal College
of Obstetricians and Gynaecologists tell us that it is 26
weeks. However because we cannot be sure about gestational
age we ought to allow a couple of weeks earlier and use
particular kinds of anaesthetics.
These two if you like technical developments, that is the
ability to provide care to small neo-nates and the awareness
of sentience, led to a feeling that 28 weeks was too high
a limit. Without recapitulating all the Parliamentary legislation
process of 1988 to 1990, there was an outlawing of post
viability abortion accept in situations where the life of
the pregnant woman was threatened, and where there was grave
permanent injury to the physical or mental health of the
The subject tonight I think is likely to be around the other
category where post viability abortion is legal, that is
abortion for abnormality. To be precise, the wording of
clause (e) of certificate A says that abortion up to term
is legal if: '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'.
There is a review at a level and where we are at the moment.
What about ethics? Let me run fairly rapidly through some
International Oaths and Codes. In 400BC (although you might
say that is a fairly dated reference), Hypocrates or the
School of Hypocrates led to the Hypocratic Oath. I have
chosen two different translations, they are both widely
accepted English translations but we need to recognise that
we are looking at rather old Greek documents here. One of
them says: 'I will give no deadly medicine to anyone if
asked, nor suggest such counsel and in like manner I will
not give to a woman a pessary to produce abortion.' Arguably,
here we have the euthanasia and the abortion debates in
that paragraph. A mid 1930s translation: 'I will neither
give a deadly drug to anybody if asked for it, nor will
I make a suggestion to this effect, similarly I will not
give to a woman an abortive remedy'. Perhaps the second
translation was looking a little wider than pessaries.
I am now going to jump forward 2,500 years to the Declaration
of Geneva 1948.We need to set this in historical context
because of course, this was in response to various atrocities
performed by the Nazi medical profession between 1933 and
1945. The Declaration of Geneva 1948 was adopted by the
General Assembly of the World Medical Association. The context
is the post-Holocaust situation and it uses this expression:
'I will maintain the utmost respect for a human life from
the time of conception even against threat'. A little later
on, the International Code of Medical Ethics adopted by
the Third World Medical Assembly in 1949 states: 'A doctor
must always bear in mind the importance of preserving human
life from the time of conception until death'.
48 years ago in 1949 the International Code of Medical Ethics
adopted the last Code. To give a further couple of quotes:
'everyone has the right to life' is enshrined in the United
Nations Declaration of Human Rights and Freedoms of 1948.
Here we have the same historical context of the aftermath
of the Nazi experience. 'Legal protection before as well
as after birth' is mentioned in the United Nations Declaration
of the Rights of the Child 1959 talks (and clearly this
is a short quote from a long document) referring to the
importance of legal protection before and as well as after
I imagine that most of are aware that it is about this point
in history that more liberal abortion policies came along.
Russia was first, followed by the Scandinavian countries.
Britain was the first Western European non-Scandinavian
country to bring in liberal abortion legislation in 1967.
There was therefore a big gap between what codes of ethics
for doctors were saying and what doctors in some countries
were doing. There were two choices. They could stop what
they were doing and go back to what the codes of ethics
were saying, or they could change the codes of ethics. Indeed
it was this latter category that was followed. As a result
we get to another yardstick or milestone in the Declaration
of Oslo, 1970 adopted by the 24th World Medical Assembly.
It uses this sort of language: 'Where the vital interest
of the mother conflict with those of the unborn child, [therapeutic]
termination of pregnancy is admissible according to a doctors
individual conviction and conscience'. This was approved
as the case provided that the law and the local medical
association allow it.
I think that if you can follow the essence of those codes,
there is a pretty major shift by Oslo 1970. Then we get
to the 35th World Medical Assembly in Venice in 1983. They
looked at the words of the Geneva Convention and that talks
about 'from the time of conception'. This was amended to
'from its beginning', which obviously begs the question:
When does life begin? At the same meeting the words 'from
the time of conception until death' were just deleted from
the International Code of Medical Ethics. So there was Oslo
in 1970 and Venice in 1983 when some pretty major shifts
in ethical codes took place.
I now want to come up to date with the British Medical Association
(BMA) draft revision of the Hypocratic Oath, which was published
earlier this year. It was not popular when its was presented
to the BMA's AGM, mainly because people felt unhappy with
the language. The relevant paragraph for the issue of abortion
says: 'I recognise the special value of human life but I
also know that the prolongation of human life is not the
only aim of health care'.
I think this touches on the balance of responsibility in
euthanasia, just as Hypocrates touched on euthanasia before
abortion. The BMA document goes on to say: 'Where abortion
has been permitted, I agree it should only take place within
an ethical and legal framework'. I do not know what the
final version of this document will say, but the words 'only
within an ethical and legal framework' bring us to the issue
I think we need to keep the question of post viability abortion
in some sort of numerical framework. There were 177 225
abortions in England and Wales in 1996, up by 8.3 per cent
compared to the previous year. This increase has been attributed
to the poorly handled pill scare at the end of 1995. One
in five pregnancies in England and Wales now ends in abortion.
Out of those 177 225 abortions, 653 were performed at 23
or 24 weeks gestation, and only 92 at 25 weeks or over.
It important that we bear these statistics in mind to have
a proper perspective.
What problems does this raise for medical services? A colleague
of mine, John Wyatt sets out some of the issues in a booklet
titled Survival of the Weakest. He sketches the issues we
have to consider when we relate to new born babies, but
by implication also the pre-term baby. He refers to the
Greeko-Roman tradition where babies which looked weak were
left out of doors overnight and if they were still alive
the next day they would be adopted into the family. If they
were not then the problem was solved anyway. He contrasts
this approach with the Judeo-Christian tradition where there
was special care for the most vulnerable and disadvantaged.
There is a lot of extra documentation about the people who
looked after pre-term babies.
John Wyatt compares this with the present, and considers
the scenario where it is possible to have one operating
theatre in a hospital where highly complicated technical
procedures is being performed on a fetus in the womb in
order to correct abnormality, whilst in an adjacent theatre,
there is a post-24 week abortion being performed because
of substantial risk of serious abnormality. It is the juxtaposition
of those two operating theatres that makes John ask questions.
There was a Panorama programme recently when a doctor, sitting
in the shadows, talked about having performed an abortion
at around 35 weeks gestation because there was a missing
forearm. It was interesting to hear that doctor reflecting
on the feelings that he had.
We need to keep the numbers in perspective, and there are
not many abortions at this late stage. There are still issues
however, raised by the following kind of story. There was
an article in the Independent newspaper from May 1996, called
'Aborted baby lived 45 minutes'. It says: 'A women who agreed
to have an abortion after being told that the fetus was
severely handicapped gave birth to a normal baby who lived
some 45 minutes after the termination. Jacqueline James
consented to the abortion at 27 weeks of pregnancy after
doctors told her that her routine ultrasound scan had revealed
that her baby had severe physical abnormalities.'
Regarding that case which occurred in 1994, Richard Blunt
the medical Director of the Dudley Group of Hospitals NHS
Trust said that: 'No attempts to resuscitate the baby had
been made despite it appearing healthy because Mrs James
was undergoing a termination'. The last paragraph of this
article says that: 'The coroner at the inquest concluded
that none of the usual verdicts were appropriate in the
circumstances and recorded death due to legal termination'.
There are factors that need to be discussed in analysing
the ethics of these situations. There is the issue of the
ethics of abortion in general. More specifically in late
term abortion we need to look at the question of sentience.
Here we are considering the question 'What does it mean
to be human?'. Then there is the issue of the ethics of
our attitudes to disability. What is the medical definition
of a healthy person. Is it a person who has not been adequately
investigated yet? If we do enough tests we can find something
wrong, and that could apply to any one of us. I say this
to flag up the question 'Which of us is not disabled?'
We are hearing in the news all the time now about the explosion
in genetic testing. The world ahead of us is one where we
will have the ability through genetic testing to predict
diseases, carrier states and probability of disease. Technology
is going to give us a growing problem here. This pertains
to the ethics of our attitude to abortion for disability.
I want to quote from a recently published book Ante Natal
Screening and Abortion for Foetal Abnormality published
by Birth Control Trust, and reviewed by Dr Stuart Derbyshire
in the British Medical Journal. In his review, Dr Derbyshire
refers to a comment in the book made by one of Britain's
leading bio-ethicists, Dr Raanan Gillon. Gillon insists:
'If embryos and fetuses are not yet people then there is
simply no logical connection between making abortion available
to prevent the creation of a disabled person and discrimination
against disabled people'. His sentence began 'if' and it
seems to me to be a big if. The ethical concept of justice
means treating like alike. Why discriminate against a fetus
on the grounds of a probability of disability.
We should not make ethical judgements according to opinion
polls, but I am as tempted as the next person to quote them
when it suits me. A recent opinion poll carried out by Gallop
for the Sunday Telegraph, carried out on October 23 and
24, 1997 asked this question: 'Now thinking of abortions
where there is a suspected abnormality at present there
is no upper time limit in the UK. Do you think that it should
remain without a limit or be changed to 24 weeks?'
The question was setting out what the law says and it was
asking several thousand people whether the law should remain
without a time limit. The answers given were 33 percent
of the women questioned thought it should remain without
a limit. 40 per cent of the men questioned thought it should
remain without a limit. 57 per cent of women and 52 per
cent of men thought it should be reduced to 24 weeks.
In conclusion, I have laid out the legal and ethical issues
around post viability abortion, and I hope indicated that
public opinion is not comfortable with the current approach
It was interesting that Andrew referred to the work of John
Wyatt, one of Britain's leading experts in fetal medicine
in Britain. Wyatt, together with others has put the discussion
about very late abortion at the centre debates on medical
ethics and clinical practice in Britain. He is a very sensitive
and caring doctor who is doing some exciting work with severely
premature babies. I have on a number of occasions discussed
these issues with him and I know that he is deeply troubled
by precisely the issues that have been raised. The fact
that he may be called upon to save the life of a very much
wanted child that has been prematurely born at 23, 24 or
25 weeks, and yet his colleagues are occasionally engaged
in the abortion of pregnancies at the same gestation does
seem to him to be ethically problematic.
However, he sometimes seems to forget that there is a very
real difference between these two situations. If you take
the focus of attention away from the fetus and instead focus
on the woman, then things are clearer. In the one instance
a woman has requested that the pregnancy is terminated because,
for whatever reason, she believes it is best if her potential
child is not born. In the other the woman is desperately
unhappy because she is fearful for the life of a child that
she very much wants.
When considering the ethics of abortion, it is crucial to
consider the circumstances in which the request for the
procedure take place. It is not an issue that is susceptible
to complete ethical and philosophical abstraction. Abortion
is not merely an idea or principle it is a practical physical
procedure the need for which is regretted by the women who
request it. Abortion is a perceived solution to a pre-existing
Late termination is invariably and inevitably distressing
for all who are involved - for the woman and the medical
team whose role it is to support her. A woman whose pregnancy
is aborted after 24 weeks will almost certainly endure a
labour in very much the same way that they would be if they
were giving birth at the end of a pregnancy that was intended
to result in the birth of a child.
To assume that women request such abortions without seriously
considering the issues involved is insulting to their intelligence
and integrity. Andrew has explained the restricted legal
circumstances in which abortions at this stage can be permitted
- they are almost always because a fetal abnormality has
been detected. The pregnancy has probably been wanted prior
to this discovery and the woman may already identify strongly
with the fetus regarding it as her 'unborn baby'. This means
that the decision is likely to be even more distressing.
There are ethical inconsistencies with the Abortion Act
as it operates at the moment. This is the case precisely
because it does allow abortions late in pregnancy for certain
reasons, but restricts them for others. From the point of
view of ethical consistency we have to consider why it is
moral, right and just to deny a woman an abortion at 24
weeks gestation in circumstances where the procedure woiuld
have been permitted at 22 weeks or 18 weeks or 12 weeks.
What is it that occurs at 24 weeks so as to necessitate
the imposition of greater restrictions on the behaviour
of women and their doctors?
It is clear that both legally and socially that we take
a different view of pregnancy at different stages of gestation
and there is absolutely no doubt that most pregnant women
regard their pregnancy very differently as it progresses.
Even women with unambiguously unwanted pregnancies sometimes
find that their views change as the pregnancy develops.
The language used by women to describe their condition often
changes as the pregnancy progresses. They start by saying
they have missed a period, they then say they are pregnant,
then that they are going to have a baby.
There is much anecdotal evidence to support the claim that
even women who are quite determined that their pregnancy
was unwanted at the beginning may find, where access to
abortion is delayed to the point when they can feel fetal
movements, that they become more ambivalent in their attitude
to abortion. This is completely understandable from the
point of view of the pregnant woman. Pregnant women are
not passive vessels containing a fetus. Even where at the
beginning a woman is oblivious to the fetus developing inside
her, her body changes in a whole number of ways and at a
certain stage, at around 16 weeks, she may begin to feel
quite vigorous movements. At this point she can become very
conscious that there is something that is 'not her but not
separate from her'. Today, no one can be ignorant of what
a fetus looks like. We are surrounded by images of fetus,
blown up, back lit, looking very cute with a thumb in the
This forces us to consider how women must feel when they
request late terminations. One is forced to speculate that
they must either be the most brutal, desensitised, amoral
monsters or alternatively they must be desperate individuals
making the most difficult decision of their lives. Perhaps
one's conclusions are shaped by how one generally regards
The law changes at 24 weeks because it assesses that at
this point the fetus is viable. It is generally accepted
that this is the time at which the baby, if born, would
have a fighting chance of survival outside the womb. This
introduces an ethical distinction between second and third
trimester abortions which is essentially fetus-centred.
The circumstances of the fetus are allowed to take priority
over the circumstances of the woman issue.
Yet the viability distinction is not something that can
be precisely defined. It is determined not only by the state
of the biological being of the fetus, but also the way society
can provide the mechanism to enable the severely premature
baby to survive. In this sense it is not that at the point
the fetus is a life, but rather that medical technology
The reason why I make this point is because I would argue
that making viability a point of great moral and ethical
significance is in some ways arbitrary and random. You could
easily point to a number of other particular points in the
progress of a pregnancy which you could load with as much
moral weight. In fact the Human Fertilisation and Embryology
Act, which governs certain procedures to do with infertility
treatment and regulates experimentation on embryos, highlights
a very much earlier point as being of great moral significance.
It draws attention to the development of the primitive streak.
This is the point at which certain cells in the embryo differentiate,
at about 14 days after conception. There are in fact a whole
number of points that could be loaded with great moral significance.
Traditional Catholics pinpoint the point of conception.
They see this as when a human life develops in the sense
that the fertilised ovum is human, and it is alive. It is
genetically distinct and therefore in their eyes has great
In some ways it could be argued that even within the abortion
law the point of implantation is given weight, which is
usually a couple of days after conception. If you consider
the difference between abortion and contraception, it is
legally accepted that contraception is something that prevents
pregnancy before implantation. This is not seen as a matter
for legal regulation. In contrast abortion ends pregnancy
after implantation, and this is subject to regulation.
If we wanted to we could find a whole number of points that
could be seen as significant. We could say at what point
can the heart be seen on a scan?At what point does the woman
feel fetal movement? This was the time earlier in history
that was accorded moral significance. A lot of anti-abortionists
might agree that there is a difficulty to lay claim to mortal
worth at some point in pregnancy. Ultimately pregnancy is
a progression, and what we see is a continuance of life
forming and many points of development can be identified.
This could even be projected back to the point of the sperm
and the egg. It is not just the fetus that is a potential
human being, which is genetically distinct. Of course the
sperm and egg are potentially fetuses. It is therefore difficult
to draw lines.
Arguably, there are three defining moments in pregnancy.
The first is conception, which is where something genetically
distinct emerges. The second is implantation which is really
the point at which the woman becomes pregnant. It is at
this point that her body starts to change and respond to
the pregnancy. The third is the point of birth, which I
think is the one that is morally significant. This is the
case for the simple reason that at this point action can
be taken that could not before. The woman and baby are separated
and that means that society can act on that child. It can
be looked after and care for without in any way imposing
on the autonomy of the woman.
Having argued that there really is no moral or ethical distinction
between early and late abortion when the issue is considered
from the perspective of the woman rather than the perspective
of fetal development and that there is no more reason to
attach moral significance to viability than to other 'moments'
in pregnancy, I want to look at the issue from another point
of view. I would argue that one of the reasons why it is
unethical for late abortion to be restricted is because
it undermines an important principle which I think has to
be accepted in any civilised society. This is the principle
that no woman or man should be forced to undergo medical
procedures against their will. It is upheld by the idea
of bodily autonomy which means we cannot be forced to be
party to clinical procedures for the benefit of other human
beings. That is the way clinical practice in general is
organised and it is problematic that people argue that a
remain pregnant and undergo childbirth out of an obligation
to maintain the life of the fetus. It is in fact an obligation
we do not impose even in respect of born children.
It seems curious that if I was 28 weeks pregnant and presented
to my doctor saying there was no way I wanted to continue
with the pregnancy, the doctor would not be able to refer
me for termination unless I met the restrictive criteria
which have been outlined. It would be assumed I had an obligation
to the fetus because it was potentially viable and I had
passed the point of viability. I therefore would be compelled
to maintain its life and deliver the child. In contrast
I have a two year old, and if he suddenly became ill, and
needed me to donate an organ to survive, I would probably
consider myself a heniously immoral woman if I did not concede
to that demand. However there is no law in the land that
could oblige me to do so. In effect we impose greater obligation
to women to preserve the life of their fetuses than we impose
to preserve the life of their born children.
In abortion law we are therefore distinctly privileging
the life of the fetus over the wishes of the woman in a
way we do not do in any other form of medical practice.
I would therefore argue that the current abortion law is
ethically inconsistent in the way it permits abortion in
some circumstances but not in others and that it in denying
abortion it undermines the basic principle of individual
autonomy which is accepted in the rest of medical practice.
Finally I want to pick up on the point about abortion for
fetal abnormality and consider the argument that acceptance
of abortion on this ground is unethical in that it encourages
discrimination against people with disabilities. I do think
this point is fundamentally wrong. There is an absolute
distinction between in how society treats someone who is
sentient, or someone to whom society believes it has a particular
obligation, and how we should regard a fetus which is not
yet a person. It is not even aware of any sense of being
alive, let alone having any sense of rights which we should
notice or feel obligation to.
I regard abortion for fetal abnormality as a way of society
being able to address the problem of genetic illness. I
think it is important to recognise that a woman may have
a very strong feeling that she wants to have a child that
does not suffer from a genetic defect. Allowing her to make
that decision and end a pregnancy is entirely different
to suggesting we might condone the chastisement of people
already alive with the same defect. I find no inconsistency
in arguing that a woman should be allowed to have abortion
on the grounds of fetal abnormality whilst defending strongly
access to resources for people with disabilities.
I firmly support the idea of a woman being able to end a
pregnancy simply because it is unwanted. No other reason
is needed. I do not think that because of this anyone would
say I must therefore believe that a woman must be able to
kill a child because it was unwanted or kill her husband,
for that matter, because he is unwanted. We simply do not
carry that logic through with abortion in general, and we
accept we are capable of making distinctions.
I believe the overwhelming majority of people are responsible
and sensible in the judgements they make. I disagree with
the fears about genetics and new discoveries about our genetic
make-up that suggest it will end in horror. I think it ludicrous
to assume that women would put themselves through the process
of abortion on grounds that are, to them, trivial. We have
to be careful about passing judgement about what people
might do, with no evidence to sustain that judgement.
In particular we have to be careful about suggesting that
a woman's reasons for abortion are trivial. They may seem
so to us, but to her they may have a different meaning.
I listened to a very senior expert in fetal abnormality
about the distress he felt when presented with a request
for abortion on the grounds that the fetus had a cleft palate.
This expert made the point that he was horrified because
he thought this to be a rather trivial abnormality, until
he looked at the woman sitting in front of him and noticed
she had a severe cleft palate herself. What he regarded
as a quite trivial disability, this woman honestly regarded
as being so serious that she was willing to put herself
through the process of late abortion and end what she already
saw as the life of a child that she wanted.
To conclude, the discussion of ethics and abortion seems
to me to focus unreasonably on looking at the interests
of the fetus. I think the abortion debate should be resituated
to focus on the ethical treatment of the pregnant woman.
I think we should accept that women are ethical, moral beings
with conscience and the law should treat them accordingly.
The law is an inappropriate and inadequate means to regulate
abortion. Abortion should be subject to no more constraints
than any other clinical procedure. It is questionable whether
more post-viability abortions would be sought even if there
was no law to restrict them. Prior to 1990 there was a time
limit of 28 weeks on abortions in England and Wales but
no time limit in Scotland. Yet there was not a greater proportion
of late abortions in Scotland, despite the fact that they
would have been within the law.
Pregnant women do not like to seek late abortions, doctors
do not like to perform them. An abortion is not an abstract
issue for the woman who seeks it. Her pregnancy is a pressing
practical problem and seeks an abortion because she has
reasons for wishing to end it. You may not agree with that
reason and you may think it wrong for that woman to end
her pregnancy. But your agreement and approval is of no
consequence. The issue is: should you have the right to
force a woman to endure pregnancy and labour because you
disapprove of her reason.
In society at the moment there is a tolerance of abortion
in early pregnancy because we understand it to be necessary.
Contraception fails and sometimes we fail to use it effectively.
We recognise that in order for women to control their fertility
they need access to early termination. I agree that public
opinion in respect of late termination is more ambivalent
and people are uneasy about it. Perhaps one of our tasks
is to educate people about why late termination is necessary.
It struck me particularly recently when I was looking at
the abortion statistics for 1996. I looked at the gestations
of some of these late terminations and was shocked to discover
the latest termination was of a pregnancy of 37 weeks. My
own son was born at 37 weeks and he was not regarded as
a premature baby. There are two ways you can think about
the woman who had this abortion. You can see her as the
most callous, brutal woman whoever existed, or you an think
of her as the most desperate woman on earth to have requested
abortion at that stage. My view is that she would be the
most desperate woman on earth to consider that her child
would be better not born alive. I think the last thing women
need is the law dictating and restricting choice and making
judgements about their decisions. Women are the people who
have to live with the choices they make and they should
decide, regardless of the stage in pregnancy.