SEX-SELECTIVE ABORTION AMENDMENT TO THE SERIOUS CRIME BILL
Briefing for MPs
By Jeena International, Karma Nirvana and the Sharan Project, Muslim Women’s Network-UK.
TEXT OF AMENDMENT
New Clause 1
Termination of Pregnancy on the grounds of the sex of the unborn child.
“Nothing in section 1 of the Abortion Act 1967 can be interpreted as allowing a pregnancy to be terminated on the grounds of the sex of the unborn child.”
BACKGROUND
Jeena International, Karma Nirvana, the Muslim Women’s Network-UK, the Sikh Women’s Alliance and The Sharan Project have extensive experience of sex selective abortion and the prejudices against women that give rise to it. We are working together in support of the above amendment which we believe to be an important first step to addressing the problem.
Is sex-selective abortion an issue in the UK?
Yes, but on a very minor scale when compared with China or the Indian subcontinent.
In 2012, the Telegraph ran investigations proving that it was possible to get doctors to refer for a gender abortion in the UK1. Researchers from Oxford and Imperial College have found that sex selective abortion could be deduced from birth and census data2. In May 2014, the Department of Health produced an in-depth breakdown of birth data statistics, showing that there was no statistically significant gender ratio imbalance in the UK across ethnicities3. However, there is a growing body of research comprising the experiences of a number of women have spoken about their experiences of UK residents having sex-selective abortions in the UK as well as abroad4. We know from experience that women are having sex-selective abortions in the UK, and we feel their experiences – which reflect a much wider problem – should be taken seriously before the situation worsens.
Purpose
The amendment has two aims.
1. To clarify in statute beyond all doubt that sex-selective abortion is impermissible in UK law.
2. To provide the Government with an opportunity to bring regulation and guidance targeted at addressing this problem.
Why does the law need clarification?
While the Prime Minister and Department of Health are clear that ‘abortion on the grounds of gender alone is illegal’ 5, they are contradicted by the British Medical Association6 and the British Pregnancy Advisory Service7, and many others8 who between them represent those who vast majority of the sector. This is despite numerous clear ministerial statements and new Government guidance reiterating the illegality of the practice. As a result, mixed messages are getting through to communities. Unfortunately, the Government’s view – though correct – is an interpretation of the law with no legal force. They cannot oblige stakeholders to comply. The ‘Sex-Selection’ amendment clarifies – but does not change – existing abortion law in line with the Government’s interpretation.
How could this amendment provide an opportunity for regulation?
Clause 79(2) of the Serious Crime Bill provides that “the Secretary of State may by regulations make provision that is consequential on any provision of this Act”. are one option to consider and would be an opportunity for the Government to consult with us on an appropriate way forward.
GENUINE CONCERNS
We recognise that there have been a number of concerns raised about the amendment by groups who fear that this amendment will negatively impact women. We do not seek to dismiss these out of hand and recognise that they are motivated in most cases by a desire to help women. Unfortunately, many of those concerns are founded upon misunderstandings about the scope, intention and effect of the amendment. We would like to address them.
Does this amendment criminalise women?
No. Regrettably, this mistake has been repeated frequently. It is completely false for two reasons. First, we are clear that sex-selective abortion is implicitly unlawful, and therefore is already subject to criminal sanctions. It cannot therefore be criminalised, because it is already criminal. Only abortions which fall within the grounds set out in section 1 of the Abortion Act 1967 are invulnerable to prosecution. Fetal sex is not one of those grounds.
Second, the amendment applies only to doctors. The Abortion Act 1967 permits only doctors to interpret and apply the grounds of the Act. The amendment clearly only pertains to those who interpret the law. It therefore only applies to doctors and does not affect the standing of women in law at all.
Would this stop abortions for sex-linked disabilities?
No. Abortions performed for this reason fall under s1(1)(d) of the Abortion Act 1967 ‘substantial risk of serious handicap’. The ‘Sex-Selection’ amendment does not change this. The amendment was carefully drafted to avoid affecting abortion on other grounds. There is nothing in the amendment to prevent a doctor from using the sex of the fetus to establish the presence of the ground as detailed in s1(1)(d). An expert legal opinion on this subject is available on request.
Would this require singling out a particular community or racial profiling?
There is no reason to suggest that Government action would have to single out certain communities. Evidence from analogous legislative proposals suggests the contrary. Though, as with FGM and forced marriage, the problem does seem to be prevalent in some minority communities, Government action on FGM and FM cannot be said to require racial profiling. It is hoped that, in consultation with the Government should the amendment pass, a similar course of action will be pursued.
Does this amendment do anything to help women living with sex-selection abortion?
Yes. We believe that the current confusion amongst stakeholders confuses women as to their rights. We do not believe that it helps them to present contradictory interpretations of the law and that the law needs clarifying to solve this. While we are all agreed that this amendment is not sufficient to end sex-selective abortion in the UK on its own, it is very helpful, clear and straightforward first step. Any regulation or guidance can act to place a greater focus on health options available to women – awareness will contribute to a culture of greater accountability so women at risk will be easily identified and options of support presented, therefore this amendment will enable identification and greater chances of women having the confidence to report safely
Would this amendment deter women in crisis pregnancies from approaching caregivers?
This conflates two issues – domestic violence and sex-selective abortion. Not all women will be coerced or a victim of domestic violence but consciously seek sex-selective due to community and self imposed ideology.
Women living with domestic violence should be provided with access to the support they need to break free from that situation. The amendment does nothing to diminish those services, indeed, with sensitively crafted regulation, it may improve them. We do not believe that ignoring sex-selective abortion where a woman’s partner/spouse/ family is abusive and demanding such an abortion, will solve the issue of domestic abuse.
Why does the amendment use the term ‘unborn child’ instead of fetus?
‘Child’ is the legal, rather than medical, term (Abortion Act 1967). Health Ministers use ‘unborn child’ frequently in child protection policy, so its use here is appropriate.
So, where do we go from here?
In Government Regulations pursuant to this amendment, we will be campaigning for:
1. Support for educational projects/organisations working in this area.
2. Review of practitioner guidance on how to deal with the issue sensitively.
3. Possibility of including a monitoring question/check box on the abortion referral form to require the doctor to declare that he/she is satisfied that the abortion is not being sought for gender reasons. This means that any woman suffering coercion has a clear opportunity to say, and the clinical support pathways would then be opened.
Conclusion
This is a real problem. We know this through many of the women we work with and our own experiences. Please do not allow the opportunity to clarify the law and to provide help to women pass by. Please support Fiona Bruce’s amendment on Monday.
- Newell, C and Watt, H Abortion Investigation: Doctors Filmed Agreeing Illegal Abortions, No Questions Asked, Telegraph, 22nd Feb 2012.
- See https://www.spi.ox.ac.uk/fileadmin/documents/PDF/WP35__Sex-ratio_of_births_to_India-born_mothers.pdf and http://www.independent.co.uk/news/science/the-lost-girls-illegal-abortion-widely-used-by-some-uk-ethnic-groups-to-avoid-daughters-has-reduced-female-population-by-between-1500-and-4700-9059790.html
- See Department of Health Birth Ratios in England and Wales, May 2014.
- See for example Connor, S: ‘I had to terminate my pregnancies because I was carrying girls’ The Independent, 14th March 2014.
- Prime Minister, Oral Answers to Questions 19 March 2014, c780 (Official Report).
- British Medical Association Press Release ‘Abortion guidance Ignores Gender Complexity, Say BMA’ 27th May, 2014 http://bma.org.uk/news-views-analysis/news/2014/may/abortion-guidance-ignores-gender-complexity-says-bma.
- British Pregnancy Advisory (BPAS) ‘Britain’s Abortion Law’ poses the question. ‘Is abortion for reasons of fetal sex illegal under the Abortion Act?’ They answer ‘No. The law is silent on the matter’ http://www.bpasresources.org/product_info.php?ID=11244 (registration necessary).
- For example Professor Sally Sheldon’s article in BPAS journal Abortion Review ‘Abortion for reason of sex: correcting some basic misunderstandings of the law’: “…it has been repeatedly asserted that abortion for reason of sex selection is illegal. This, however, is far from clear.” http://www.abortionreview.org/index.php/site/article/1143/
