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With advances in embryo research, it's time to bring abortion law out of the Victorian age

31 May 2016
By Professor Sally Sheldon
Kent Law School, Kent University, Canterbury
Appeared in BioNews 853

News that scientists in the US and UK have managed to keep alive embryos beyond the point at which they would normally implant in the womb (1,2), has led to calls for the 14-day limit on embryo research to be extended (3). It also highlights a fundamental problem in the regulation of abortion.

Under current abortion law, the offence of 'unlawful procurement of miscarriage' can be committed at any point after the embryo has embedded in a woman's uterus (4), some 6–12 days after fertilisation (5). This crime attracts a potential sentence of life imprisonment.

The ability to sustain an embryo in vitro beyond the point where it would normally implant has rightly been heralded as an important scientific advance. However, it should be noted that the subsequent destruction of such an embryo would potentially be a serious criminal offence, were it carried out by a woman seeking to control her own fertility rather than by a researcher in a laboratory.

Of course, no offence is committed where an abortion is performed until far later in pregnancy, provided that the strict medical controls introduced by the Abortion Act (1967) are met. However, a doctor who safely and effectively performs menstrual regulation shortly after implantation, without complying with the authorisation, certification and other requirements laid down in the Act, may be guilty of the criminal offence (6). So too may a woman who sources abortion pills on the internet and uses them to end even a very early pregnancy. Further, the law is a serious impediment to the development and future introduction of new methods of fertility control that operate around, or shortly after, the moment of implantation (7).

Prosecutions of women and healthcare professionals for 'unlawful procurement of miscarriage' have been rare in all parts of the UK in recent years. And it is probably fair to say that the retention of this archaic law says more about a reluctance to open the morally sensitive issue of abortion for debate than it does about any ongoing desire to lock up women or doctors. Yet the result is the same: the retention of criminal prohibitions that date from a world – which 'in matters sexual was almost unimaginably different from ours' (8) – passed by an all-male Parliament, sitting many decades before women achieved the right to vote.

The intractability of debates regarding both abortion and embryo research reflects the fact that, as a matter of biology, the development of human life is not characterised by bright lines. As the eminent lawyer Glanville Williams once put it, 'abstract human life does not 'begin'; it just keeps going' (9). A seamless continuum exists through the production of sperm and egg, their joining together in a process of fertilisation, the gradual development of the new entity thus created throughout pregnancy, birth, subsequent growth, eventual death and ensuing decay of the body. Defining what happens along the way as a 'pre-embryo', 'embryo', 'fetus', 'person', 'child', 'adult' or a 'corpse' requires an attempt to draw lines on the basis of criteria selected as holding significance for legal or other purposes.

Most of us believe that there is an important moral difference between how we may treat a newly formed embryo and how we may treat a newly born child. However, it is challenging to know precisely at what point, and on what basis, to draw a line  between the two.

In a context where moral consensus on the status of the embryo will inevitably remain elusive, we should be able to agree both that lines are necessary and, further, that the process by which they are drawn must be capable of robust defence. This has rightly been recognised as essential in any consideration of extending the 14-day limit on embryo research. However, in the voluminous literature on the moral status of the embryo and fetus, it is difficult to find a single account that argues for the moral significance of implantation. Yet, until that moment, we allow women to regulate their fertility with over-the-counter medicines and, after it, we threaten them with incarceration.

If society is able to have a mature and reasoned discussion regarding appropriate, proportionate and effective regulation of embryo research, the same should be true for abortion. For the former, the government has twice carved out significant parliamentary time for such debate, resulting in statutory reforms in 1990 and 2008. For the latter, partial liberalisation of the law came almost 50 years ago as a result of a Private Member's Bill. The only serious possibility since that time for Parliament to debate liberalisation of abortion law was blocked at the last minute by the Brown Government (10).

This suggests scant regard for the need for the same democratic debate that has been accepted in the context of human fertilisation and embryology. The retention of a punitive, mid-Victorian, criminal framework for the regulation of abortion also does a serious disservice both to women seeking control of their own fertility and to the professionals who care for them.

10) Sheldon S. A Missed Opportunity to Reform an Outdated Piece of Legislation
Clinical Ethics 4:3-5 |  2009
1) Self-organization of the human embryo in the absence of maternal tissues
Nature Cell Biology |  4 May 2016
2) Self-organization of the in vitro attached human embryo
Nature |  4 May 2016
3) S.3, Human Fertilisation and Embryology Act
(1990, as amended) |  19 January 2022
4) S.58, Offences Against the Person Act (1861)
This applies in England, Wales and Northern Ireland. In Scotland, abortion is a common law offence. |  19 January 2022
5) R (Smeaton) v SS Health and others
EWHC 610 (Admin) |  2002
6) Tunkel V. Abortion: how early, how late, and how legal?
British Medical Journal 6184: 253-6 |  1979
7) Sheldon S. The Regulatory Cliff Edge between Contraception and Abortion: the Legal and Moral Significance of Implantation
Journal of Medical Ethics 41: 762-5 |  17 June 2015
8) Smeaton
para [332] |  19 January 2022
9) Williams G. The fetus and the "right to life"
Cambridge Law Journal 53(1):71–80 |  1994
25 July 2016 - by Wendy Suffield 
Should the current 14-day limit for growing human embryos in the lab be extended in light of recent breakthroughs? This was the question posed in the Guardian's Science Weekly podcast following news that embryos have been successfully developed for 13 days...
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