Legal case launched over Downs syndrome abortion laws

In the UK, Marie Lea-Wilson is the latest individual to join the Downright Discrimination campaign, which is launching a landmark case against the government. Along with others such as Cheryl Bilsborrow and Heidi Crowter, the campaign seeks to bring an end to late-term abortions for foetuses with a pre-natal diagnosis of a non-fatal disability.

At present, abortions are permitted beyond 24 weeks if there is a risk to the physical and mental health of the mother, or if the foetus could have severe handicaps if born.

Campaigners say that the legislation is discriminatory and “deeply offensive”. This is supported by the UN Committee on the Rights of Persons with Disabilities, which has repeatedly condemned countries which permit abortion based on the disability of a foetus.

Contesting this position, groups such as the British Pregnancy Advisory Service, have warned against placing limitations on women’s right to choose and say that ultimately, the decision lies with the woman.

What does the current legislation say?

Under the current legislation, as outlined in The Abortion Act 1967, abortions after 24 weeks are permitted if authorised by two doctors, and performed by a registered medical practitioner. This authorisation must be made on one three grounds. This includes:

• The termination of pregnancy is necessary to prevent grave permanent injury to the physical and mental health of the pregnant woman
• The risk to the pregnant woman’s life is greater than if the pregnancy were to be terminated
• There is substantial risk to a child if it were to be born, in that it would suffer from such physical or mental abnormalities as to be seriously handicapped

The abortion of foetuses with Down’s syndrome is covered under the third ground. However, Down’s syndrome screening is offered between the 10th and 14th week of pregnancy.

According statistics released by the government in 2018, in England and Wales, 3,269 abortions were performed on the basis of Ground E, due to foetal abnormalities. Congenital malformations were the principal medical condition in 49% of these abortions. Chromosomal abnormalities accounted for 33%. Down’s syndrome was the most common chromosomal abnormality, at 19%.

Currently in the UK, there are an estimated 40,000 people living with Down’s syndrome, according to the Down’s syndrome Association. A freedom of information request revealed that in the last 10 years there have been 710 late-term abortions (between 20 weeks and birth) for Down’s syndrome in England and Wales.

Law challenged due to discrimination

Marie Lea-Wilson, is the mother of a Down’s syndrome child and one of many campaigning for “equal rights” for individuals with the chromosomal abnormality. She claims that she was encouraged to abort her now 11-month-old child, Aiden, when doctors discovered that he had the syndrome.

Speaking to Sky News, she said: “The first thing that they wanted to talk about (in hospital) was whether we wanted to terminate the pregnancy, and I was 34 weeks pregnant at the time, so it was quite a difficult question to get asked.”

Reflecting on this, she added that it felt as if her second child was not of equal worth due to his diagnosis: “It is really tough to think back on that, I find it really difficult to think that Aidan’s life isn’t seen as valuable as his older brother’s, it makes me worry as to whether he’ll be seen the same or treated the same”.

Hoping to change this “discriminatory” legislation, Marie Lea-Wilson has joined forces with Heidi Crowter, a 24-year-old with the syndrome, and Cheryl Bilsborrow, another mother of a Down’s syndrome child. With the assistance of a CrowdJustice crowdfunding page, the campaigners are initiating legal proceedings seeking a judicial ruling against Section 1(1)(d) of the Abortion Act 1967.

Representing the campaigners, Paul Conrathe, a Solicitor from Sinclairslaw, said: “This case addresses a matter that is fundamentally offensive and discriminatory – that unborn babies with a disability, and in this case Down’s syndrome, should be aborted up to birth. The current law reinforces negative stereotypes and attributes lesser value and dignity to people with disability. In bringing this landmark case the claimants seek judicial ruling that the Abortion Act 1967 impermissibly violates the dignity of people with disabilities.“

Further to this, The United Nations Committee on the Rights of Persons with Disabilities recently reinforced its position on Ground E abortions. It recommended that selective abortion on “the ground of foetal deficiency” should not be legalised. The Disability Rights Commission have also pointed to the “offensive” nature of these kinds of abortions. According to the commission: “It reinforces negative stereotypes of disability…[and] is incompatible with valuing disability and non-disability equally”.

Limitations on women’s choice

While many believe that such legislation undermines the Equality Act 2010, others have argued that amending the 1967 Act to repeal Section 1(1)(d), would set a dangerous precedent.

Ann Furedi, Chief Executive of the British Pregnancy Advisory Service argues that the decision to abort an “abnormal” foetus is a complex one. Speaking about the different factors that impact such a decision, she said: “Often (women) already have young children that they are trying to look after and care for and the addition of a child that will be profoundly disabled can just push them to the stage where they think that they simply can’t continue the pregnancy”.

She added: “Often there are financial problems, often it can bring out problems within the relationship… we need to make decisions about pregnancy based on that inner sense of what we can do and our own conscience. It’s not a matter of somebody else making the decision for us and so when a woman thinks that ending the pregnancy is the right thing for her and her family, I really strongly believe that should be her decision to make”.

Speaking with the BBC, a spokesperson for the The Department of Health and Social Care agreed saying: “Any decision to terminate must rest on the judgement of the woman and her doctors”.

It has also been argued by those such as Ella Whelan, Columnist for Spiked, that the campaign group are conflating different issues. She says those such as Bilsborrow, Crowter and Lea-Wilson are transforming political and ethical arguments on freedom of choice, into “a legal battle over diversity and rights”. Subsequently, she argues that this campaign for equality is in fact an attack on women’s rights.

Clearly, this argument is complicated and multifaceted. It would be unwise, to dichotomise the Down’s syndrome campaigners into saviours of equality, while demonising pro-choice activists, when essentially they campaigning for the same issue; upholding the rights of the individual. Every experience of pregnancy is different, and the circumstances surrounding a pregnancy can be complex. Ultimately, pregnant women should be provided with sufficient and appropriate counsel concerning their pregnancy, and presented with all of their options and the consequences of these options.

Next week legal papers will be lodged with the High Court, and a judge will determine if a trial will go ahead.