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Gender selecting doctors: should they be prosecuted?

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

Under the Abortion Act 1967, a pregnancy can be terminated in England, Scotland, or Wales during the first 24 weeks of pregnancy. In the event of an emergency, the rules concerning the duration of the pregnancy are relaxed. The Act, however, does not extend to Northern Ireland. In Northern Ireland, terminations are permitted only to save a woman’s life, or if there is a risk that she will suffer permanent and serious damage to her mental or physical health. The decision to terminate a pregnancy, however, is not an easy choice; health risks to either the mother or child, and unsuitable personal circumstances are among the many reasons why an abortion may be needed. Although patients can choose to have the abortion performed at an NHS facility, indeed in some areas the NHS provides more than 90% of local demand, many feel that there is still a vast amount of social stigma attached to the procedure. Legalised abortion has been contested and challenged across the globe, and it remains a difficult issue across the UK and in many minority groups in the UK today.  The main argument that has appeared to triumph in favour of the procedure is that women should have the right to choose what happens to their body, and what is best for their lifestyle.

Following this argument, it is not clear why a woman’s autonomy and right to choose fails to extend to include aborting a foetus purely due to its sex.

Previous birth rates between male and females among nationalities in the UK suggest that the proportion of boys has increased disproportionally. Dr Dubac, who studied ethnic birth rates in England and Wales, calculates that almost 1,500 girls are missing from the figures. She explained that the disparity probably related to selective gender abortion.

In 2012, a Daily Telegraph investigation found that selective gender abortions were being performed in the UK. According to the investigation, “clinicians admitted they were prepared to falsify paperwork” in order to arrange the procedures. The CPS, however, have decided against prosecuting the doctors involved with the investigation because “it would not be in the public interest”, although “there is enough evidence to justify bringing proceedings”. Bizarrely, the criminal law is not being enforced to prosecute criminals.

It has been argued that by the chief executive of BPAS, a company which provides more than a quarter of Britain’s abortion procedures, that sex selective abortion is not against the law. At no point in the Abortion Act 1967 does it specifically state that the sex of the foetus is to be disregarded as a reason to proceed with a termination.

Most students studying law have encountered the ideas of John Stuart Mill. At a very basic level, one of the philosophies that emerged from his writings was that only behaviour which causes harm to others should be criminalised. In relation to the case of the selective gender abortion doctors, the main argument that emerges from Mill is that, as the procedure did not harm a legal entity, it should not be an offence. From a legal perspective, a foetus has no legal rights; it is not a legal person. Per Sir George Baker P, in Paton v British Pregnancy Advisory Service Trustees (1978), legal rights are only attained when a person is born and has “a separate existence” from their mother. An abortion, therefore, at any stage of the pregnancy, does not cause harm to another because there it does not involve a legal person.

Nevertheless, many people would criticise this construction of a ‘legal person’. Different people would answer the question ‘Where does life begin?’ differently, so the law may be too simplistic. Most prospective parents place a great emphasis on being about to feel movement of the foetus, which is also known as ‘quickening’. Others, particularly religious groups, may place emphasis on the conception of the foetus as the moment where life begins. Indeed, at the moment of conception, the entire genetic make-up of the resulting baby is in place. Clearly, there is no obvious moral answer to this question. This debate is beyond the scope of this particular discussion, but it is relevant when considering whether the criminal law should be concerned with the welfare of the foetus. 

Moreover, Duff described the criminal law as a part of a 'moral conversation', where an institutional framework holds perpetrators of public wrongs responsible. Arguably, therefore, one of the most significant purposes of the criminal law is to punish those who are guilty of committing actions which conflict with society's morals. This is not a simple function; against whose morality do we construct the criminal law? Would it be fair for the majority to impose their morals on a minority of people?  The doctors who were prepared to arrange selective gender abortions wereattempting to facilitate an act that some patients do not regard as morally wrong. Although the investigation involved pregnant women who did not intend to complete the procedure, there are potential mothers, and fathers, who regard selective abortion as a wise financial or cultural choice rather than a moral wrong. In some ethnic communities, parents may even believe it is the morally correct choice not to bring a girl into the world due to gender inequality and/or female hardship. This version of morality, arguably, is stifled by the criminal law insofar as their choice to terminate is restricted with regards to sex. Hence, one cannot simply assume that the doctors involved suffer from a lack of morality; indeed, they may have been trying to give effect to the choice of parenthood, if only to a greater extent than the criminal law recognises that choice.

Conversely, selective gender abortion is controversial for several significant reasons. For feminists, the concept of selective gender abortion evidences a wider social problem of female control and suppression. Particular communities may value a male life higher than a female life. The law should not protect a mechanism of gender control because it entrenches female suppression across society. Moreover, it is not only the female foetus that suffers from selective gender abortion. From the evidence collected, it is clear that the practice is most prominent in minority cultures and communities. Due to the financial and social pressures attached to baby girls in some cultures, the mothers undergoing a gender selective termination procedure may be subject to coercion or force. If the criminal law fails to address selective abortion, women in these communities are at risk of abuse.  Ultimately, selective gender abortions ossify sexual inequality. This completely conflicts with the underlying rationale of legalised abortion; women should have the right to exercise their autonomy, and, therefore, should be able to choose what happens to or in their bodies.

This does not suggest, however, that it is not in the public interest to prosecute the doctors involved in selective gender abortions through the criminal law. The previous discussion focuses on the purpose and the construction of the law, rather than the criminality of those who break the current law. Whether or not the doctors should be prosecuted under the criminal law is a different matter. The CPS have decided not to prosecute the individuals who were discovered through the Daily Telegraph investigation because of policy reasons; “it has never been the rule in this country that every criminal offence must automatically be prosecuted”.

So what ‘policy reasons’ are great enough to undermine a prosecution in this case?

In order to understand the rationale behind the decision not to prosecute, one must examine some of the policy reasons that underpin the criminal law and criminal convictions in general. Firstly, one of the most significant attributes of the criminal law is that it acts as a deterrent. This occurs at both a personal level, where the defendant is deterred from committing the same offence, and at a wider social level, because the public can perceive that punishment results from the particular behaviour. 

In the current case, the CPS have left the doctors in the hands of the General Medical Council. Disbarring or fining the doctors involved may produce individual deterrence, but, as previously noted, the discovery of selective gender abortion in particular communities suggests that these measures would be largely ineffective on a wider social scale.

Arguably, society may benefit from a criminal conviction in the case at hand because selective gender abortion is a social rather than merely individual, problem. Society is affected by the practice in at least two different ways; firstly, as previously mentioned, selective gender procedures can be used as a mechanism for gender control in society; and, secondly, it also presents a problem for population growth. If there are substantially fewer women than men, this could lead to “increased sex trafficking” and forced marriages. Furthermore, improving technology and healthcare has caused people across the globe to, generally, live longer than the previous generation. In many cultures, women are expected to take control of domestic life by caring for their families or their husband’s families. Shaping the gender ratio of the population in these cultures, therefore, will lead to unprecedented challenges for the State.  

On the other hand, to suggest that deterrence acts as a strong policy argument focuses on a consequential perspective of the criminal law. This does not seem fair to the individuals involved; indeed, pursuing a deterrent could lead to harsher sentences than what would ordinarily be called for, and this could undermine the pursuit of justice on the whole.

A further policy consideration that underpins the criminal law is protection. The criminal law serves to protect the public from unacceptable standards of behaviour that are, usually, harmful or offensive. Arguably, the criminal law should punish selective gender abortion because this represents a form of gender discrimination. Although there is a persuasive argument concerning the mother’s autonomy and her right to choose to have an abortion, selective gender abortion in turn entrenches masculine dominance in society. Hence, these procedures are extremely harmful to women as a social group, which demands recognition by the criminal law. Moreover, the threat of prosecution and a criminal conviction would protect women by deterring practitioners from engaging in selective gender abortions. Prosecuting the doctors in the case at hand under the criminal law would ensure that no practitioner could point to a precedent which suggests that they are “above the law” in these matters. Pregnant women who are at risk of being forced into a termination procedure by their families or communities would be better protected if the doctors involved were prosecuted by the criminal law.

Conversely, although the majority may feel that selective gender abortion is a moral wrong, some communities accept the practice. In these circumstances, the patient and doctor involved in the procedure may not necessarily view their behaviour as immoral or wrong. Criminalising the doctors in the case at hand, therefore, would not ‘protect’ the patients who want to undergo such a procedure. Arguably, the doctors were merely acting on a woman’s autonomy and right to choose. Moreover, with regards to principle of protection, it may seem disproportionate or illogical to use the criminal law to protect the moral rights of a foetus when the law does not recognise it as a legal entity.

There has been a suggestion that doctors should automatically withhold the sex of the foetus during the pregnancy in order to combat the roots of sex selective abortion. After 13 weeks, the sex organs of the foetus are clearly visible from ultrasound scans. From these, doctors can predict gender with an accuracy of more than 99 per cent. In 2011, roughly 10% of the 190,000 abortions carried out in England and Wales took place after 13 weeks of pregnancy. Withholding the sex of the foetus, therefore, could present an opportunity to counteract selective gender abortion. Critically, however, such regulations would be difficult to enforce in the privacy of a doctor’s office.

Ultimately, the selective gender abortion debate circulates around well-trodden ground; how far should we extend an individual’s autonomy and right to choose? In practice, however, the refusal of the CPS to prosecute practitioners who are known to have agreed to arrange such abortions has the potential to ignite a furious debate concerning the underlying policies and morality of the criminal law. Arguably, as distasteful as many will find it, the ability to have an abortion in the UK was propelled by female liberation and a woman’s right to exercise autonomy over her own body.

Further Reading

Ann Fuerdi, BPAS Chief Executive

BBC, UK Indian Women ‘Aborting Girls’

CPS Statement

Heather Widdows, University of Birmingham, ‘Is Sex-Selective Abortion Morally Acceptable?’

John Bingham and Claire Newell, Gender Abortions: Criminal Charges Not In ‘Public Interest’ Says CPS

Rowena Mason, The Abortion of Unwanted Girls Taking Place in the UK

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Tagged: Discrimination, Medical Law & Ethics

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