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Abortion is treated by the Abortion Act 1967 as a purely medical matter between a woman and her doctors.  Fathers have no right in law either to insist on the abortion of children they do not want, or to prevent the abortion of children they do want.

Prior to 1967 the law against abortion was embodied in the Offences against the Person Act 1861, section 58 of which criminalised a woman and section 59 anyone else who sought to procure a miscarriage, regardless of whether or not the woman was actually with child.

The Infant Life (Preservation) Act 1929 had criminalised the killing of a child capable of being born alive, which closed a loophole in the law permitting a child to be killed during the moment of birth, although the first prosecution was not until 2007.  In 1938 the defence to abortion was extended to include ‘mental and physical wreck’ to allow, for example, abortion following rape.

Liberal MP David Steel’s Private Member’s Bill was intended to clarify the existing law and was triggered, in part, by the 1957-61 thalidomide catastrophe.  The 1967 Act permitted:

· Abortion up to 28 weeks to avoid injury to the physical or mental health of the woman or of her children; and

· Abortion up to full term to save the woman's life, to prevent grave permanent injury to her physical or mental health, or if the child was likely to be severely physically or mentally handicapped.

Such a termination was made lawful if conducted by a medical practitioner and if two medical practitioners were of the opinion that the abortion was justified.  The Infant Life (Preservation) Act 1929, however, continued to apply, preventing the abortion of a child ‘capable of being born alive’, a definition which depended on judges’ interpretation of current medical science.

In 1990 the Human Fertilisation and Embryology Act 1990 reduced the time limit from 28 weeks to 24 to take into account changes in medical technology; the Act also decoupled the 1929 Act from the 1967 Act allowing abortion to be carried out up to full term to save the mother’s life, prevent grave permanent injury to her physical or mental health or if the child was likely to be severely physically or mentally handicapped.

The unintended effect of this change was foreseen too late and an attempt to overturn it was unsuccessful; the law now permitted a child born, for example, with a hare lip to be destroyed during birth.

In 2004 West Mercia police chose not to prosecute two doctors who had approved the abortion at 28 weeks of a foetus suffering from a cleft palate.  The Reverend Joanna Jepson, who had herself been born with a much more severe facial deformity, obtained leave to challenge the decision by judicial review.  Jepson disputed that a cleft palate constituted a ‘serious handicap’ under Section 1(d) of the Act – the law does not define the term – and wanted the abortion declared an ‘unlawful killing’.  Her challenge was unsuccessful: the doctors had acted ‘in good faith’.

The legalisation of abortion does not place an obligation on a doctor to abort a handicapped child, and a child born handicapped cannot sue the doctor (McKay v Essex [1982] HA).

Only medically procured abortion is lawful.  A woman who attempts unlawfully to procure her own miscarriage, or anyone who assists her, is guilty of an offence under the Offences against the Person Act 1861.  This has been interpreted to mean that anyone who does so lawfully is not guilty of a felony.  Anyone who causes the death of an unborn child commits an offence under the Infant Life (Preservation) Act 1929.  A threat to kill an unborn child, however, is not a threat to kill a third party (R v Tait [1990] CA).

There are three relevant precedents which all involve fathers trying to prevent the abortion of their children; in the first, Paton v BPS [1978] 2 All ER 987, a father, William Paton, argued that he had a right to a say in what happened to his child, and that the mother was seeking the abortion out of vindictiveness and spite in the context of a failing marriage.  The Court disagreed: the law is quite clear: a foetus has no human right to life before it is born; a father has no legal right to prevent its abortion.  The father took the case to the European Court of Human Rights – Paton v UK [1980] EHRR 408 – and again the court rejected the idea that a father has the right to be consulted.

In the second case, C v S [1987] 2 WLR 1108, 1 All ER 1230, brought by Robert Carver, president of the Oxford University Pro-Life group, the father failed to persuade the judges that abortion would be a crime under s.1(b) of the Infant Life (Preservation) Act 1929 given that the foetus was at a stage where it could survive outside the womb: such a prosecution had to be brought by the Director of Public Prosecutions and not by the father.  Nevertheless, the pressure of the ensuing publicity forced the mother to abandon the termination and Carver raised his daughter himself.

More recently, in 2001, Stephen Hone went to the High Court in a bid to stop his former partner, Claire Hansell, aborting their child.  He argued that only one doctor had been consulted instead of the two required by law and claimed a ‘partial victory’ in court when the clinic said it would perform further medical checks before carrying out the termination, but Hansell’s solicitors reported she had already aborted the child.

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