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Reforming Termination of Pregnancy : Two Models within the British Islands.
by
Peter W Edge, LLB, PhD (Cantab)*
Senior Lecturer in Law, University of Central Lancashire, Preston.< p.w.edge@uclan.ac.uk>
Copyright © 1995 Peter Edge.
First Published in the Web Journal of Current Legal Issues in association with the Blackstone Press
Ltd..
*My thanks to Brenda Hodgkinson for her comments on an earlier draft of this note.
Summary
This note considers current proposals for reform of the law governing termination of pregnancy in the Isle of Man and Jersey, and suggests the possible value of these developments for the English jurisdiction.
Web JCLI | [1995] 3 Web JCLI | Download this file
Contents
- Introduction
- The Law in the Isle of Man
- The Law in Jersey
- The Movement for Reform
- The Proposed Reforms
- Comment
- The Law in the Isle of Man
Introduction
The smaller jurisdictions of the British Islands are not generally obliged to adopt all legal reforms made to English law, and on occasion develop their own approach to particular legal issues. This brief note considers the current proposals for reform of the law governing terminations in the Isle of Man and Jersey, and suggests the possible value of these developments to the English jurisdiction.
The Law in the Isle of Man.
The Manx law concerning termination, while distinctive, is not the product of an unique insular jurisprudence. Rather, statutory provisions taken from English models have been retained after the English statutes have been superseded by later developments. Since 1872, there have been a number of statutory offences of procuring an abortion, attempting to procure an abortion, and child destruction (Criminal Code 1872 s.71,72 [Act of Tynwald]; Infanticide and Infant Life Preservation Act 1938 s. 3 [Act of Tynwald]; Kneale (1883, Unreported, Manx Law Society Library); Allen (1883, Unreported, Manx Law Society Library); Criminal Law Act 1981 s.29 [Act of Tynwald]). These offences are based upon the Acts of Parliament which, before the Abortion Act 1967 and Human Fertilisation and Embryology Act 1990, governed the situation in English law (Offences Against the Person Act 1861 s.58,59; Infant Life (Preservation) Act 1929 s.1 [Acts of Parliament]; see further Brookes, 1988).
Although the Isle of Man has not accepted any statutory defences to the charge of abortion, it seems probable that the defence in R v Bourne [1939] 1 KB 687 applies to the Manx jurisdiction (CM, 1993 para 3; see Edge, 1993-4). In Bourne, Macnaghten J. found that the word 'unlawfully' within the English legislation, upon which the Manx statute is based, incorporated a defence similar to the statutory defence to child destruction where the act done was done in good faith for the purpose only of preserving the life of the mother. He also found that preservation of the mothers life meant more than simply saving her from immediate death - it could include preventing her becoming a mental or physical wreck.
Thus, in the Isle of Man, termination is lawful only within the confines of the Bourne defence which, however broadly it may have been defined by Macnaghten J., remains narrower than the current English law, resulting in Manx residents travelling to England to obtain terminations lawful under English law, but not Manx (CM, 1993, Appendix 1A).
The Law in Jersey.
The Jersey law regulating termination is very different in form, if not substance. According to Phillipe le Geyt (Tome III, 1670) "[i]n divine law, the procuration of an termination constitutes a capital crime, if the child has taken lift. Civil laws are the same". Customary law treats the foetus as a human being, both before and after quickening, as the appropriate charge for an termination in Jersey is murder or manslaughter, irrespective of the period of gestation (PHC, 1994 para 4; PHC, 1993 para 19).
Despite this key difference from English and Manx law, the Attorney General has stated "that the case of Bourne is an accurate representation of Jersey law on this issue" (PHC, 1993, para 8). Certainly this belief is being acted on within the jurisdiction, with between ten and twenty terminations being carried out under the Bourne exception each year (PHC, 1993, para 30). It must be open to question whether Bourne is as applicable to the Jersey customary law, defining termination as homicide, as it is to the Manx statute, defining termination as a specific offence in terms identical to the statute being considered in Bourne.
Even with the Bourne exception operating in the jurisdiction, many Jersey residents seek terminations in England (PHC, 1993, para 3).
The Movement for Reform.
In both Islands, it was decided to review the existing law. In the Isle of Man, review began in 1983, with a Private Member's Bill intended to address the concerns of the Isle of Man Medical Society that their counselling of pregnant women might be unlawful. Although this Bill was discontinued, the worries remained, and were added to by a report in May 1991 by the Liverpool University Health Planning Consortium, which, inter alia, recommended some extension of the scope of lawful termination. Following the report, the Council of Ministers asked the Social Issues Committee of the Council to consider reforms to the law. The background to the Jersey movement is less clear, but in 1989 the Public Health Committee of the States of Jersey decided to review the Jersey law in this area.
Given the relatively restrictive law of the Insular jurisdictions, a number of terminations were being carried out upon Island residents, lawfully, within England. Both jurisdictions were resigned to this happening so long as Insular law was more restrictive than the law of England (for Jersey, see PHC, 1993, para 38) , and the Manx Committee viewed this situation in a wider context :
"Women from many countries have often had to travel to other countries to obtain terminations to circumvent restrictions their own society has placed on their personal choice as in the case of women from the Isle of Man who have travelled to England and who will no doubt continue to do so." (See CM, 1993, para 13.1.)
Nonetheless, reform of the law in this area may have drawn some impetus from a desire to match the law in the books with the law in practice. Certainly, this aim is visible in other areas of Manx lawmaking, for instance, the abolition of capital punishment. But there is good evidence that more practical considerations were affecting the Island authorities.
An obvious problem with the status quo was that, by "exporting a tragic social problem" (PHC, 1994, para 5), the Islands forced "women in distress to leave the Island to obtain terminations elsewhere" (PHC, 1994, para 32). Thus, local women may not have had the opportunity for prior counselling (PHC, 1994, para 36; CM, 1993, para 5.8(b)), and, after the termination, would return to their Island without any long-term support structures. It might also be expected that the need to travel to another jurisdiction to gain an termination would lead to later terminations, with the consequent increased risks. The Manx research indicates that this was the case (CM, 1993, Appendix 1A, para 5.9), but do suggest that very young women may have found it harder to obtain a speedy termination (CM, 1993, Appendix 1A, para 5.10). Additionally, by requiring Island residents to travel to England the law
"[was] likely... to deter less well off women and thereby discriminate against them in their ability to control their fertility" (CM, 1993, Appendix 1A, para 5.8. ; Tribe, 1988 at 243).
As well as these features, which may have influenced both jurisdictions, the Manx lawmakers were especially concerned with the impact of existing law on doctors in the Isle of Man. In particular, there was concern that doctors counselling pregnant woman could, if the normal options in England would include termination, be committing an offence by aiding and abetting an unlawful termination. Additionally, with increasing availability of techniques for diagnosing foetal abnormalities, doctors were concerned they might be in a position where they could advise the woman of the abnormality of her foetus, but not offer termination if she desired it (CM, 1993, 4.3, 4.5-4.9).
Having decided to review the law, the Insular authorities then considered the approach taken in a number of jurisdictions. This shows a welcome independence from the, occasionally slavish, adoption of English models which has certainly been a problem in the Manx jurisdiction. The Manx Committee considered the law in thirty European and non-European jurisdictions, albeit briefly; while the Jersey committee considered the law in Eire, Germany, and, especially, France. Both jurisdictions extensively considered the existing English law.
The Proposed Reforms.
The proposals for reform are most fully developed in the Isle of Man, a Bill having passed the last serious legislative step on 22 May 1995 , but it is worth briefly touching on the current proposals of the Public Health Committee of the States of Jersey, which have not yet been put forward as possible legislation.
The Committee recommended "the introduction of an Termination law modelled on the French laws...but adapted and modified to suit the circumstances in the Island" (PHC, 1994, para 59). The current proposal is for termination on request up to ten weeks gestation, after medical consultations, and counselling (PHC, 1994, para 63). It is worth stressing that consultation does not entail a medical judgement by the doctor. Rather, it empowers the woman, by requiring only that "the pregnant woman is of the view that her condition causes her distress" (PHC, 1994, para 66; consider Petchesky, 1986 129, 131.). In cases where, in the views of two relevant specialists, there is a substantial risk that the foetus will suffer from a grave abnormality, termination may take place up to twenty four weeks gestation (PHC, 1994, para 64). Termination may take place without time limit where necessary to protect the woman's life or health (PHC, 1994, para 66).
Turning to the Isle of Man, when the Termination of Pregnancy (Medical Defences) Bill 1994 entered the House of Keys, it contained three statutory defences allowing lawful termination. The first, contained in clause 1, was where the medical experts are "of the opinion, formed in good faith, that the termination of the pregnancy is necessary to preserve the life of the pregnant woman". The second, contained in clause 3, allows termination at any time where there is a substantial risk that the child, if born, would suffer from such physical or mental abnormalities as to be unlikely to survive birth, or be incapable of maintaining vital functions after birth, or be seriously handicapped. The third, contained in the current clause 5 of the Bill, was where the pregnancy may have been the result of a sexual offence. Clauses 1 and 5 merit fuller discussion.
Although clause 1 appeared to be a restatement of the law as stated in Bourne, it was explained in a curious way later in the Bill. Clause 2 provided a number of "examples" of where a "termination shall, for the purposes of [clause 1], be necessary to preserve the life of the pregnant woman". Effectively, the examples in clause 2 were, by being treated constructively as threats to the life of the pregnant woman, in themselves grounds for a lawful termination. The examples were (a) where the continuance of the pregnancy would involve a substantial risk, other than the normal risks involved with pregnancy and child birth, to the life of the pregnant woman, greater than if the pregnancy is terminated; and (b) the termination is necessary to prevent grave permanent injury to the physical or mental health of the woman.
Clause 5, dealing with termination on the grounds of a sexual offence within twelve weeks, attempted to deal with some of the obvious problems with this head. Thus, the pregnant woman must produce an affidavit, or other evidence on oath, to the medical practitioners that the pregnancy may have been caused by rape, incest, or indecent assault. Additionally, she must have made a complaint to the police about the alleged offence as soon as was reasonable in the circumstances, and the medical practitioners must believe that there are no medical indications inconsistent with the allegation. This blend of medical and uncorroborated legal evidence is restricted in its use by the proviso that evidence in respect of the termination may not be admitted in criminal proceedings related to the alleged sexual offence without the leave of the court.
The House of Keys, the directly elected chamber of the Manx legislature, first debated the Bill on the 14th of February 1995. The Bill was put forward as a rationalisation of the Bourne defence, along with a compassionate recognition of the special needs of women pregnant with an abnormal foetus, or as a result of a sexual offence. It was not, in the words of Mr. May, Member of the House of Keys, intended to legalise "terminations for social purposes...[o]f the 250 women each year who leave the Island for the purpose of seeking an termination, only a very small number will have the comfort this Bill will actually bring" (Report of Proceedings of House of Keys, 14/2/1995 at K429). The clauses of the Bill were recognised as problematic, particularly clause 5, which was defended by Mr. May on the basis that any false complainant could be punished by imprisonment (ibid., K444). A number of expansions and explanations were added to the Bill, including a clause making it clear that, during termination, the medical practitioner has a limited duty to preserve the life of the child if possible; an expanded definition of seriously handicapped as one "not capable of being cured or substantially relieved by treatment and the passage of time"; and provisions for disposal of the foetus. The most significant change was a limitation on termination on grounds of serious handicap (but not inability to maintain vital functions after birth) of twenty four weeks (Clause 4(3)).
Comment.
There are a number of points of general interest from the approach of the Insular legislatures to the issue of termination. Both legislatures seem willing to depart from English models, even where they recognise that any restriction on termination not found in English law will result in residents travelling to England to take advantage of the English law (as recognised in Clause 8(3) of the Manx Bill). Interestingly, the Insular legislatures have both acted to prevent non-residents taking advantage of the reverse situation, by limiting most heads of termination to Island residents only (PHC, 1994, para 54; Termination of Pregnancy (Medical Defences) Bill 1994 cl 6(1)).
It may prove of some value to the English jurisdiction to monitor the progress of the innovations in the proposed Insular bills. In effect, if Jersey law changes in the way that seems probable at the moment, termination within the first twelve weeks will become available on request. Perhaps of more interest is the sexual offences head of the Manx Bill, which to this writer seems very problematic.
The first problem with a head of this nature is that it may be justified, at least in part, by a distinction in the Bill between the "deserving" pregnant woman, who has not consented to sexual intercourse; and the "undeserving" pregnant woman, who has consented to sexual intercourse, albeit without consenting to the resulting pregnancy. Indeed, without this distinction, this head would not necessarily require separate coverage, as the psychological injury involved could be incorporated into the grave mental injury head of termination, as was at least partly the case in Bourne itself. It must be queried whether this is a distinction modern legislation should be drawing. Leaving aside the issue of pressures on a woman to ensure she is considered in the former and not the latter category, which can be overemphasised, the dichotomy appears to enshrine a prejudice against women who consent to sexual activity. It may be that this is an over hostile view of the policy behind the clause, which does not emerge fully in the legislative debates, as it could also be argued that the clause is intended to spare the woman the additional trauma of establishing she falls within the mental injury head of the general exception; or to mark a special abhorrence for the offence. The difficulties in determining the policy are aggravated by the extension of the clause to consensual sexual activity.
Rather nebulously, the Committee recommended that termination be lawful up to twelve weeks where the pregnancy was the result of "rape or a sexual crime" (CM, 1993, para 14.3). It seems clear that the Committee was thinking primarily of incest within this definition (CM, 1993, para 6.1). Apart from the obvious point that incest can be committed consensually, the reference to "sexual assault" in the clause opens the door to another field. Under Manx law, persons under sixteen years are, de jure, unable to consent to sexual activity. While this inability to consent does not render their partner guilty of rape, but of the offence of intercourse with a young person (Sexual Offences Act 1992 s.4 [Act of Tynwald]), it does render them guilty of sexual assault (Sexual Offences Act 1992 s.13(2) [Act of Tynwald]). Thus, this clause actually provides an option for (i) victims of non-consensual sexual intercourse who may have conceived thereby; (ii) woman who may have conceived through consensual sexual intercourse with a prohibited relative; (iii) any woman under the age of consent when she conceived. If the clause really was intended to allow women in these categories, but not other women, to exercise a free choice over termination, it might have been better to have made it clearer. The possibility of category (iii) was raised during debate by Mr. May (Debates of Tynwald Court, 15/2/1994, T309) and it may have been thought the restriction of the clause to rape, incest, and sexual assault, rather than the broader sexual offence, dealt with this problem. The clause would, however, appear to still cover sexual intercourse with persons below the age of consent (see Waite [1892] 2 QB 600; Williams [1893] 1 QB 320; Forde [1923] 2 KB 400; Keech (1929) 21 Cr App R 125; Maughan (1934) 24 Cr App R 130).
Most crucially, the clause suffers from an attempt to include doctrines from another area of law, criminal law, within the definition of lawful medical treatment. A number of problems flow from this attempt.
First, the clause does not appear to recognise that, in Manx criminal law, a woman can be the victim of non-consensual sexual activity, while the man imposing such activity has not committed a criminal offence. In Manx, as in English, law, the actus reus must be accompanied by the relevant mens rea, and the absence of a valid excuse. In fact, the structure of the clause, by focusing on the experience of the victim, rather than the liability of the other party, avoids these problems.
Second, the clause is faced with the difficulty, given a low time limit for termination, and the relatively slow criminal justice system, of relying upon something other than a conviction for a sexual offence to establish that such a sexual offence has in fact been committed (a point raised, inter alia, by the Bishop of Sodor and Man, Debates of Tynwald Court, 15/2/1994, T311). The mechanisms which the Bill chooses to establish the existence of the offence are seriously flawed. While an affidavit by the woman that she has been the victim of a sexual offence would seem an obvious component of such proof, it must be queried whether reliance upon the threat of prosecution, and ultimately imprisonment, should the claim later be believed to be false, is a useful way forward. More problematic is the requirement that the alleged offence be reported to the police as soon as "was reasonable in all the circumstances". People react differently to violent assaults, and indeed may only decide to report an offence when they realise it is the only way to gain a termination of the pregnancy imposed by the assault. It seems inappropriate, therefore, to impose a duty to report the offence upon the victim. It can be argued with some justification, however, that such problems could be ameliorated by a sensitive determination of "reasonable".
Unfortunately, the Bill does not state who is to determine whether the report was made within a reasonable time. Clause 5(1) of the current Bill, states:
"a person shall not be guilty of an offence...when a pregnancy is terminated by a hospital surgeon if -
(a) the surgeon and an independent medical practitioner are of the opinion, formed in good faith, that the pregnancy has lasted for less than 12 weeks; and
(b) the requirements of subsection (2) have been complied with."
Subsection (2) deals with the three heads of evidence. The only meaning I can extract from the clause is that it is the duty of the medical practitioners carrying out the termination, if they wish to claim the statutory defence in the clause, to ensure that this criteria is satisfied - the clause does not simply allow the practitioners to claim the defence if they believe it has been satisfied, although such a result may follow from general application of criminal principles to any such offence. In either case, the medical practitioner is placed in the curious position of being required to determine an issue more normally left to the judiciary - what is reasonable in all the circumstances. It must be queried whether this reversal of the normal situation, whereby lawyers dabble in medical matters, is any more desirable.
All of these features indicate that this clause should be monitored closely after it becomes law. It may be that these difficulties will prove illusory, and that the model is one which should be at least considered by the larger jurisdictions of the British Islands, as extending a more compassionate understanding to the victims of serious crime. On the other hand, it may be that a better solution to this special trauma is to remove it from an express legal framework and include it under the general head of potential damage to the woman's mental health. It may even be that, given the flaws in the clause, this will occur de facto, rather than de jure, from the date the Bill becomes law.
Brookes, B (1988), Abortion in England: 1900-1967, (London: Croom Helm)
CM (Isle of Man Council of Ministers) (1993), Report into Abortion on the Isle of Man, (Douglas: By Authority).
Edge, PW (1994), "The Value of English Authority in Interpreting Acts of Tynwald, and Acts of Parliament extending to the Isle of Man", 22 Manx Law Bulletin 106.
Petchesky, R (1986), Abortion and Women's Choice, (London: Veso Press).
PHC (Public Health Committee of the States of Jersey) (1993), Abortion in Jersey : Discussion Paper, (States Greffe).
PHC (Public Health Committee of the States of Jersey) (1994), Abortion Law Reform, (States Greffe).
Tribe, L (1988), Constitutional Choices, (Cambridge: Harvard University Press).
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