1410

(and, in my view, surprisingly) not under the Abortion Act1967. The opinion of doctors undertaking selectivereduction is that there is no abortion or miscarriage and thatno termination of pregnancy is intended or occurs. If thisview is correct, then a fetus in a multiple pregnancy is

apparently unprotected by law and can be selectivelyterminated at the will of the doctor and mother without

fulfilling the procedures laid down by the Abortion Act of1967-simply because it shares the womb with others.

Although selective reduction was not contemplated whenlegislation was passed in 1861, 1929, and even 1967, it doesin my view amount to an abortion or miscarriage of thedestroyed fetus (or at least a partial abortion or miscarriage),which would arguably fall within section 58 of the 1861Offences Against the Person Act. Much turns, however, onthe word "miscarriage", which is interchangeably used with"abortion", and perhaps on whether a partial miscarriage isautomatically included within a whole.

Section 58 of the Offences Against the Person Act of 1861states:

"Every woman being with child who, with intent to procure herown miscarriage, shall unlawfully administer to herself any poisonor other noxious thing, or shall unlawfully use any instrument orother means whatsoever with like intent, and whosoever, with intentto procure a miscarriage of any woman, whether she be or be notwith child, shall unlawfully administer to her or cause to be taken byher any poison or noxious thing, or shall unlawfully use anyinstrument or other means whatsoever with the like intent shall be

guilty of an offence... "

In 1967 the law relating to abortion was greatly modifiedand the grounds are much more liberal than formerly undercommon law. The 1967 Act lays down specific procedureswhich must be complied with, save in an emergency.Section 6 provides that "the law relating to abortion" meanssections 58 and 59 of the Offences Against the Person Act1861 and any rule of law relating to the procurement ofabortion. Therefore, although the 1967 Act refers to

"medical termination of pregnancy", this must be definedby reference to section 58, bearing in mind that the terms"abortion" and "miscarriage" appear to be used

interchangeably in the legislation. The all-importantquestion is whether it can be said that selective reduction ofpregnancy amounts to the procuring of "a miscarriage"within section 58. A partial miscarriage would, it seems, besufficient to qualify, since the aim of the statute was toprevent the killing of any fetus in the womb. The techniquesof selective reduction certainly employ a "noxious thing" oran "instrument" as provided by section 58.

Since the aim and effect of selective reduction is to kill andthen expel (either immediately or eventually) one or morefetuses before they are viable, it does amount to an abortionor at least to a partial abortion, which would satisfy therequirements of section 58. It is notable that there is no limit’on the time which may pass between the insertion of thenoxious thing or instrument and the expulsion of the fetus,which may be months later, so the method used seemsimmaterial.The effect of section 5 of the 1967 Act is that, save for

emergencies (such as an ectopic pregnancy), the process maybe lawfully carried out only as laid down in the 1967 Act. Ifthe fetus is viable, however, and it is selectively destroyed,that will amount to child destruction under the Infant LifePreservation Act of 1929, unless it can be shown that thiswas medically necessary to save the life of the mother.

If selective reduction would have satisfied the

requirements of the 1967 Act, the breaches of the law are,

strictly speaking, technical. The question of whetherselective reduction of pregnancy comes within section 58 ofthe 1861 Act has not been tested in the courts. There is

undoubtedly scope for a different view-namely, that anabortion or miscarriage can occur only when the products ofconception are prematurely expelled from the uterus withthe result that the patient is no longer pregnant.

Anxious about the legal position, Professor Craft referredto an NHS hospital the first patient for whom selectivereduction was judged advisable. There the view was takenthat such a procedure did not fall within the abortion laws.He then brought the possible future need for selectivereduction to the attention of the DHSS and sought advicefrom his defence society. The legal advice he receivedsuggested that the procedure was outside the abortionlegislation of 1861 and 1967; and the defence society advisedthat he should act in the best interests of his patient.Professor Craft and a consultant colleague gave an opinionon each patient; and the approval of the chairman of theethics committee was obtained. Since then the ethicscommittee has recommended that the second opinionshould come from outside the hospital. Accordingly, sincethere has clearly been no intent to avoid the legal provisionson abortion, criminal proceedings would be entirelyinappropriate.

In future, however, until this matter is resolved by way ofan amendment to the 1861 Act, by a statement from theAttorney-General, or by a court decision, prudent doctorsmay wish to use the procedures laid down in the 1967 Act.Obviously, if selective reduction is performed on grounds ofpreferred sex, the procedure becomes open to increasedcensure.

DIANA BRAHAMS,Barrister-at-law

International Diary

1988

Seminar on Diagnostic Radiology: Ixtapa, Mexico, Jan 18-22

(Radiology Postgraduate Education, Room C 324, University of California,San Francisco, California 94143, USA).

Symposium on Therapy of Arteriosclerosis and Thrombosis-1988and Beyond: San Diego, California, Feb 6: (Verda Belyeu, Director,Continuing Medical Education Office, Grossmont Hospital, PO Box 158, LaMesa, CA 92041, USA).

Course on Current Concepts of Anatomic Pathology; San Francisco,CA, May 26-27 (Extended Programs in Medical Education, University ofCalifornia, Room U-569, San Francisco, California 94143).

Greek/Australian medical and legal conference on Bridging TwoCultures in Law and Medicine: Athens, Greece, May 29-June 3(Secretariat, First Greek/Australian International Medical and LegalConference, PO Box 29, Parkville, Victoria, Australia 3052).

4th international conference on AIDS: Stockholm, Sweden, June 12-16(IV International Conference on AIDS, c/o Stockholm Convention Bureau,PO Box 6911, S-102 39 Stockholm).

12th congress of the European Rhinologic Society: Utrecht,Netherlands, June 19-22 (Prof E. H. Huizing, Department of

Otorhinolaryngology, University Hospital Utrecht, PO Box 16250,3500 CGUtrecht).

VIle conference intema[ionale des Maladies Rhumatismales: Aix-les-

Bains, France, June 22-2’5 (VIle Conference Internationale des MaladiesRhumatismales, BP 234, 73102 Aix-les-Bains).