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Degree of discretion

February 2004 | by Jonathan Skinner

Last December, Joanna Jepson, a 26-year-old Church of England curate, won the right to a judicial review of a case where a foetus with a cleft palate was aborted late in pregnancy.

The judicial review, which will take place this year, will allow her to challenge the decision of West Mercia Police not to prosecute doctors who performed an abortion after the 24th week of pregnancy – which would normally be illegal.

However, in cases where a ‘severe disability’ is detected in the foetus, the law gives the mother the option to terminate well beyond this date. The dispute surrounds the definition of what constitutes a ‘severe abnormality’, as this is not defined in the Act.

Because of this, doctors can apply a degree of discretion when taking the mother’s wishes into consideration.

Public concern

Lord Justice Rose and Mr Justice Jackson said that the abortion, carried out on a foetus diagnosed with a cleft lip and palate, raised issues of public concern that should be examined at a judicial hearing.

Lawyers believe the challenge could lead to a reform of abortion legislation – if Miss Jepson succeeds in showing that the Abortion Act (1967) is incompatible with the Human Rights Act (2000).

Miss Jepson’s barrister will argue in the forthcoming judicial review that the foetus’ medical condition fell outside the definition of ‘serious handicap’ defined by the Abortion Act.

Miss Jepson’s case is that a cleft palate is not a ‘serious handicap’ that would justify termination under the Act.

Bizarre?

A cleft palate happens when, during foetal development, the cells making up the structures of palate, lips and face fail to fuse together. Until recently, doctors had no way of detecting this problem in the foetus. The degree of disability varies widely from case to case. Sometimes the cleft can go all the way up the face, sometimes there is far less malformation. However, operations are carried out to correct the condition at a relatively young age. In severe cases, operations may have to continue until the person is over 20, but a successful surgical remedy is always available.

Ann Furedi, from the British Pregnancy Advisory Service, said she had been told the severity of the condition varied greatly and that ‘in this case we just don’t know – we have to trust the doctors involved’.

She also said, ‘I think it is absolutely bizarre that [Miss Jepson] feels – knowing absolutely nothing about the individual circumstances of this woman – that she can go on to take legal action’.

Positive and fulfilling lives

When Miss Jepson (who says she is not an active anti-abortion campaigner) originally heard of the case, she made a complaint to West Mercia Police, asking them to investigate. The police say they took the advice of a senior member of the Royal College of Obstetricians and Gynaecologists before making the decision not to take the matter further.

She commented: ‘My teenage years were difficult due to a facial abnormality. I also have a brother with Down’s syndrome. We both live positive and fulfilling lives. The baby in this case did not have this opportunity, despite the availability of excellent and routine medical help’.

Miss Jepson, from Chester, added: ‘I hope we shall recognise again the value and dignity of our common humanity, disabled or able-bodied, no matter what we look like’.

She believes the decision to terminate on the grounds of a cleft palate amounts to ‘eugenics’, and feels that ‘this law needs to be tightened – it isn’t right that babies lose their lives for trivial reasons’.

Worst case scenario

Figures suggest that last year in England and Wales there were 110 abortions carried out after 24 weeks. In total, 185,000 abortions were carried out in England and Wales in 2002.

When the Abortion Act was brought in, its proponents argued from worst case scenarios, where the results of not terminating would lead to severe suffering and danger. But in practice the law has come to mean ‘abortion on demand’ and is even used to justify what is effectively ‘late contraception’.

As the years have passed, the rights of the mother to ‘choose’ have increasingly diminished any remaining rights of the unborn child to live.

The worrying trend here is that laws originally passed with stringent safeguards in place are applied with growing laxity as time progresses. MPs need to bear this tendency in mind when considering future legislation, most notably any legalisation of euthanasia.

Something sinister

Something very sinister is occurring here – the rights and values of one sector of humanity are superseded and overridden by those of another. Thus with ‘abortion on demand’, the rights of the mother cancel out the rights of the child.

Ironically (in the case of euthanasia) we could get to the point where the ‘rights’ of the adult children cancel out the rights of their elderly parents to survive!

Many genuinely care about the suffering of the terminally ill, and promote the argument for euthanasia out of compassion. Nevertheless, as with abortions, the trend is always towards increasing laxity, with safeguards being circumvented.

After all, who would have dreamt, when the Abortion Act was originally passed, that it would one day allow a twenty-four-week baby to be terminated? Babies born at this point can survive – and anyone taking their life after birth would be guilty of murder.

The irony is that, in our modern society, the protection of the womb affords little more than a licence to kill.