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Circumstances to legitimate a termination

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A 10-year-old girl is pregnant after being raped by a member of her family. The pregnancy is not discovered or diagnosed until the child is 24 weeks pregnant. What laws can be applied to this particular case?

Despite considerable political pressure on the government, the time limits set out in the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990) have not been changed. There is a time limit of 24 weeks on carrying out a termination but this time limit only applies in one of the four circumstances which the law recognises as legitimating a termination.

No offence is committed when a pregnancy is terminated by a registered medical practitioner where two registered medical practitioners are of the opinion, formed in good faith, that the pregnancy has not exceeded its
24th week and that the continuance of the pregnancy would involve risk greater than if the pregnancy were terminated of injury to the physical or mental health of the pregnant woman or any existing children of her family. These are the grounds on which the vast majority of terminations in the UK take place.

In 2005, 89% of terminations were carried out at under 13 weeks’ gestation. It can almost be seen as termination on demand, since, when it can be ended by medical means, statistically there is likely to be greater risk of continuing the pregnancy than ending it in the first few weeks.

There is no stipulation of a time limit in the following three sets of circumstances:

  • Termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;

  • Where the continuance of the pregnancy would involve risk to the life of the pregnant woman that is greater than if the pregnancy were terminated;

  • 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.

If the girl is capable of giving consent under the test set down in the Gillick case (she has sufficient understanding and intelligence to understand fully what is proposed), she could agree to a termination within 24 weeks under the first set of conditions. If she lacks the requisite mental capacity, consent could be given by her parents.

If 24 weeks have elapsed, it must be established that one of the remaining three conditions applies. There is no evidence that the baby would be seriously handicapped, so that condition would probably not apply. It is then a question of medical evidence to establish if a termination is necessary to prevent grave injury to this girl’s physical or mental health or if continuing the pregnancy would cause a greater risk to her life than ending it.

The answers would depend on the facts.

It is in cases where there has been a failure to diagnose the pregnancy, especially in young girls, that the 24-week time limit becomes significant.

Bridgit Dimond, MA, LLB, DSA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd

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