Background to the Bill
The Abortion (Disability Equality) Bill is a Private Member’s Bill sponsored by Lord Shinkwin and proposes to make an amendment to the 1967 Abortion Act, which would remove section 1(1)(d), which allows for an abortion when:
Two registered medical practitioners are of the opinion that ‘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’. This is also known as a Ground E-notification.
- If the Bill were to become law, parents would no longer have the option to end a pregnancy after 24 weeks when faced with a serious antenatal diagnosis, including those cases where there is no realistic possibility of a pregnancy resulting in the baby surviving after birth.
- The Bill passed at Second Reading on 21st October 2016 and goes to Committee Stage on 27th January 2017. We urge Lords to prevent this Bill from becoming law
What would the Bill mean for pregnant women and their partners?
Very few abortions are carried out under Ground E and those taking place over 24 weeks are even less common, making up just 0.1% of total abortions in 20151. These abortions take place under incredibly difficult circumstances for the prospective parents, as women and their partners find themselves suddenly having to make life-changing decisions about what the diagnosed condition means to them and their future child. This Bill would actively harm people placed in this position.
- The Bill would limit the amount of time prospective parents have to make an informed choice. Detection of fetal abnormalities often takes place at the routine anomaly scan, from 18 to 21 weeks. If further tests are required, women and their partners will need time to seek specialist advice about the prognosis. Should Ground E be removed, the opportunity to engage with medical specialists and time to consider all options would be greatly reduced. This is likely to lead to more pregnancies being ended at 23 weeks because, beyond this point, parents would have no other option available to them. In other words, some parents would find themselves unable to wait for further tests and be forced to base their decision on incomplete information.
- The Bill would prevent access to abortion even where a pregnancy will not result in a surviving baby, violating human rights. Sub-section 1(d) of the 1967 Abortion Act, which the Bill proposes removing, is also the section under which women and their partners can access an abortion where there is little or no change that a pregnancy would result in a child able to survive. If a diagnosis of a fatal fetal abnormality is made beyond 24 weeks, a woman would be forced to continue to carry a pregnancy to term. This would be entirely inhumane and (as numerous rulings in courts2 and by UN bodies3 have shown) a violation of women’s human rights.
What would the Bill mean for equality?
It has been argued by the proponents of the Bill that the law as it stands is discriminatory to disabled people. However, as academic and disability rights advocate Dr Tom Shakespeare has said: ‘choices in pregnancy are painful and may be experienced as burdensome but they are not incompatible with disability rights.’4 It is true that the language in the Abortion Act (namely the reference to the term ‘handicap’) is outdated and offensive. It reflects the fact that the Act, written in 1967, is in many ways no longer fit for purpose and in need of modernisation. However, this does not mean that the Bill would be a positive step for equality. In fact, an extension of the argument made by Lord Shinkwin that a fetus deserves rights under the Equality Act would actively damage the rights of parents and pregnant women.
Arguing that a fetus deserves rights under the Equality Act affords it personhood. By arguing that a fetus has a right to equality, the Bill’s advocates5 are implying that a fetus enjoys some form of personhood. Such a claim would be importantly inconsistent with the fundamental principles of English law, which have recognised in every other context that personhood is only gained at the moment of birth. In countries where the rights of the ‘unborn child’ are enshrined in law (such as the Republic of Ireland), access to safe, legal abortion is denied. An extension of the Lord Shinkwin’s argument would therefore damage women’s ability to access reproductive healthcare.
Taking a pro-information position
When women and their partners make the choice to access abortion after a diagnosis, they are not devaluing people living with disabilities. It is an individual decision made on the basis of a number of complex factors, relevant to the prospective parents involved.
It is also important to acknowledge the uncertainty that parents can face in this situation. The Royal College of Obstetricians and Gynaecologists (RCOG) have noted6 that the consequences of fetal anomalies are difficult to predict. Each diagnosis must be considered on a case-by-case basis, with parents allowed time to consider all options and seek specialist advice.
As it stands the Abortion Act allows women and their partners to make a decision, with the support of medical professionals, about each specific case. Women who have received a fetal diagnosis can choose to have an abortion or access specialist care throughout antenatal care and birth. Furthermore, there is additional support and advice provided by charities such as Antenatal Results and Choices (ARC) and the Down’s Syndrome Association should women need it. The Abortion (Disability Equality) Bill threatens the woman’s right to decide for herself, and should be prevented from becoming law.
Briefing from Voice for Choice
1 Abortion Statistics for England and Wales 2015 (Department of Health, 2016)
2 Court declares abortion law in Northern Ireland Breaches European Convention on Human Rights by failing to provide exemptions to the ban (Northern Ireland Courts and Tribunal Service, 2015)
3 Mellet v Ireland (United Nations Human Rights, 2016)
4 Disability Rights and Wrongs (Dr Tom Shakespeare, 2006)