Why Doctors Need Not Fear Prosecution for Gender-Related Abortions
| Author | Kristina Swift,Michelle Robson |
| DOI | 10.1350/jcla.2012.76.4.785 |
| Published date | 01 August 2012 |
| Date | 01 August 2012 |
| Subject Matter | Article |
Why Doctors Need Not Fear
Prosecution for Gender-related
Abortions
Kristina Swift and Michelle Robson*
Abstract This article examines whether criminal liability can arise in
respect of abortions which are said to be gender related. Recent claims of
abortions performed on the grounds of gender have raised questions
of possible criminal liability of the medical profession. This article argues
that a doctor performing an abortion would almost inevitably be able to
establish a defence to any allegation of criminal activity, by relying on both
the specific defences set out in the Abortion Act 1967 and the readiness of
the judiciary to defend a doctor’s actions where the doctor is acting
responsibly and in good faith to safeguard a patient from harm.
Keywords Abortion; Abortion Act 1967; Defences; Necessity;
Gender; Good faith
In February 2012 the Daily Telegraph claimed it had secretly filmed
doctors at a number of British abortion clinics carrying out abortions on
the grounds of gender.1Reacting to this news the Health Secretary,
Andrew Lansley, stated he would order an inquiry. It is difficult to see
what this would achieve. We may find gender-related abortions morally
repugnant, but this does not mean that a gender-related abortion cannot
‘fit’ within the grounds for abortion permitted under the Abortion Act
1967. Moreover, can we realistically envisage a successful prosecution
against a doctor for performing such an abortion?
Abortion is the termination of a pregnancy by surgical or medical
means intended to result in the death of a foetus. It is a criminal offence
punishable by a maximum penalty of life imprisonment for any woman
or any other person unlawfully and intentionally to do any act to
‘procure a miscarriage’ under s. 58 of the Offences Against the Person
Act 1861 (hereafter OAPA 1861). The Abortion Act 1967 provides a
defence to this criminal act; it makes lawful what would otherwise be
unlawful. Women therefore do not have a right to an abortion; rather,
any woman must satisfy one of the grounds in the Abortion Act 1967 (as
* Senior Lecturers in Law; University of Northumbria; e-mail: kristina.swift@
northumbria.ac.uk; michelle.robson@northumbria.ac.uk.
1 C. Newell and H. Watt, ‘Abortion investigation: doctors filmed agreeing illegal
abortions “no questions asked”’, Daily Telegraph, 22 February 2012, available at
http://www.telegraph.co.uk/health/healthnews/9099511/Abortion-investigation-doctors-
filmed-agreeing-illegal-abortions-no-questions-asked.html; H. Watt, C. Newell and
Z. Khimji, ‘Abortion investigation: Available on demand—an abortion if it’s a boy
you wanted’, Daily Telegraph, 23 February 2012, available at http:/
/www.telegraph.co.uk/health/healthnews/9099925/Abortion-investigation-Available-on-
demand-an-abortion-if-its-a-boy-you-wanted.html, both accessed 20 June 2012.
348 The Journal of Criminal Law (2012) 76 JCL 348–357
doi:10.1350/jcla.2012.76.4.785
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