Sunday Herald - 02 November 2003
Law review after abortion for harelip
By Sarah-Kate Templeton, Health Editor
ABORTION laws could be tightened when the High Court considers whether doctors broke the law when they terminated a pregnancy at six months because the woman did not want to give birth to a baby with a cleft lip and palate.
Abortion beyond 24 weeks was made illegal in 1990 unless doctors believe there is a substantial risk that the child would be born “seriously handicapped”. The High Court in London will now be asked to decide whether a cleft lip and palate can be considered a “serious handicap”.
The case was launched after a Cambridge student, who herself underwent corrective surgery for a congenital jaw abnormality, was concerned when she learned that an abortion had taken place after 24 weeks for the sole defect of cleft lip and palate.
Joanna Jepson wants to force the courts to clarify what constitutes a “serious handicap.” She is training to join the Anglican clergy.
Abortions after 24 weeks are controversial because the foetus has a reasonable chance of surviving outside the womb. A late termination for cleft lip and palate is particularly contentious because surgery for the condition, also known as harelip, has improved in recent years and it is rare to see obvious deformity after treatment.
The Sunday Herald has seen parliamentary records showing that, when the 1990 extension to the Abortion Act was debated, politicians and the secretary of the Royal College of Obstetricians and Gynaecologists, dismissed as scaremongering claims that the law would lead to late terminations for cleft lip.
Hansard, the official record of proceedings in parliament, shows that on June 21, 1990, Aberdeen MP Frank Doran told parliament that opponents of the Bill were scaremongering by suggesting that doctors would carry out abortions after 24 weeks for a cleft lip.
“To make their job that much more difficult by suggesting that the medical profession would willy-nilly ignore those strict provisions in the Bill is unacceptable and a smear on the medical profession. For example, it is suggested that some doctors will interpret the onerous conditions that apply to them as including a harelip or a cleft palate. That is pure scaremongering, which is appaling.”
Doran went on to read to Parliament a letter from Professor Allan Templeton, honorary secretary of the Royal College of Obstetricians and Gynaecologists. Templeton’s letter said: “It is not a case of abortions being performed for trivial reasons- and the suggestion that they have occurred because of the risk of cleft palates or hare lips is intended to trivialise the medical decision.”
Paul Conrathe, lawyer for Jepson, will refer to these comments when he argues in the High Court that abortion after 24 weeks for a cleft palate is a misinterpretation of what Parliament intended by “serious handicap.”
Initially, Jepson asked police to investigate the doctor who performed the abortion on allegations of unlawful killing. West Mercia Police, in Hereford, decided not to instigate proceedings, however. Jepson then asked for a judicial review. The first call for a judicial review of the police decision, which involved the submission of papers, failed but the legal team is trying again with a court hearing. It will then be up to the High Court to decide whether to take the case any further.
Conrathe said: “We’ve commenced proceedings in the High Court. We have been turned down at the first hurdle for a judicial review but we will get a hearing and I think the case will be taken forward. The court will interpret the act and, hopefully, set a very important precedent.
“The decision of whether or not there is a serious handicap is a matter of law. It is not for the parents or the doctors to decide. There needs to be a legal benchmark on which we can make a clinical decision.”
As part of the evidence Conrathe will refer to a letter from the Royal College of Obstetricians and Gynaecologists which admits that the term “serious handicap” is unclear.
The letter says: “There is no precise definition of ‘serious handicap’ and the decision is therefore one for the practitioner to make in consultation with the parents and other interested parties.”
This weekend Templeton told the Sunday Herald that the Royal College of Obstetricians is aware of two cases of abortion for cleft palate after 24 weeks. He conceded that the cases caused the College concern but does not believe that a clarification of the law is necessary.
Ann Furedi, chief executive of the British Pregnancy Advisory Service, said: “The law allows for abortion after 24 weeks when there is a substantial risk of serious abnormalities. When the law was passed it deliberately left this vague for the decision to be made between the woman and her doctors. We feel that that is appropriate.
“Clearly it is the case that what some people will regard as extremely serious, and a condition they really feel they could not live with in a child, others would feel differently about.”