A Critical Analysis Of The Embryopathic Indication For Abortion, Section 1(1)(D) of The Abortion Act 1967, And The Extent To Which It May Constitute Disability Discrimination.
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My Name is Danielle Mitchell, and I am 22 years old. I recently graduated from Durham University with a first class honors degree in Law, and have continued my studies in Durham, currently pursing a Master of Laws.
I have developed a strong interest in medical law throughout my studies, and plan to write my masters dissertation in this field. I chose to write on the topic of abortion because it is an emotive subject that provokes ever-present debate. I chose specifically to focus on the embryopathic indication, the disability ground, as it allowed me to incorporate my interest in discrimination law into my research. This is an angle of the abortion debate that is often overlooked in media debates, but that nonetheless raises important ethical questions. My research led me to conclude that s1(1)(d) of the Abortion Act 1967 is discriminatory in nature, however due to the morally divisive nature of the topic, repeal of the ground is extremely unlikely, and consequently it will be difficult to eradicate discrimination from the Act.
Indeed, I believe that future developments in this area must aim to reach a compromise that, whilst continuing to uphold the disability ground, will strive to significantly reduce its discriminatory impact.
-Danielle Mitchell, Author
Introduction
Disability-selective abortion is distinct because it represents a choice to abort ‘a particular foetus… rather than seeking an abortion out of simple desire not to be pregnant’.1 This distinction has resulted in vast debate surrounding the existence of the embryopathic indication. This dissertation will undertake a critical analysis of s1(1)(d), determining the efficacy of various contentions within this debate. It does not seek to determine whether there ought to be a right to abortion, rather it will recognise that abortion is legal in certain circumstances, and will evaluate whether the presence of foetal abnormality ought to be one of those circumstances.
Firstly, this paper will provide a legal overview of abortion in order to situate this debate within the legal regime. It will critically analyse s1(1)(d), including an examination of the historical context in which the ground was established, the implications of the terminology used, and a consideration of the absence of a time-limit. The justifications for s1(1)(d) will then be discussed; their merits will be highlighted but it will ultimately be concluded that these arguments fail to present a solid grounding for the indication. A comprehensive evaluation of the discriminatory effects of disability-selective abortion will then be undertaken. It will be contended that s1(1)(d) is discriminatory in nature, in relation to both the foetus and those already existing with disabilities. Consequently, the ground requires reform; several reform options will be examined, considering the extent to which they may alleviate the issues highlighted.
