In R (Crowter) v Secretary of State for Health and Social Care, the Divisional Court (Singh LJ and Lieven J) has dismissed a challenge by three claimants who argued that the current law on abortion breaches the human rights of those with Down’s syndrome.
Section 1(1)(d) of the Abortion Act 1967 permits abortion where “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. Two registered medical practitioners have to come to this opinion in good faith. Importantly, there is no time limit on the application of this provision, meaning that it can be invoked throughout a woman’s pregnancy.
The claimants (two of whom have Down’s syndrome and one of whom is a mother of a child with Down’s syndrome) argued that this provision is incompatible with Article 2 (right to life), Article 3 (right to be free from torture, and inhuman and degrading treatment), Article 8 (right to respect for private and family life) and 14 (prohibition of discrimination) insofar as it permits anytime after 24 weeks’ gestation abortion of fetuses, particularly those with Down’s syndrome, many of whom would otherwise go on to live happy and fulfilled lives.
The Court found that: (a) the European Court of Human Rights had never found that fetuses are the bearers of ECHR rights and it would not be appropriate for the Court to go further than the ECtHR on this issue; (b) the legislation did not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities; (c) it was far from obvious that the UN Convention on the Rights of Persons with Disabilities protected fetuses and, in any event, it had not been incorporated into domestic law; and, (d) this is a field where it is particularly important to give Parliament a wide margin of judgement given the rights of women involved.
The judgment can be found here.
News reports of the case can be seen on BBC News, ITV and in the Guardian.
Julia Smyth and Yaaser Vanderman were instructed on behalf of the Secretary of State for Health and Social Care.