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Abortion Notes

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A more recent version of these Abortion notes – written by Oxford students – is available here.

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Abortion v Contraception - implantation (fertilised egg moves into & attaches itself to the womb) (R (John Smeaton) v Sec of State for Health Legal Status of Foetus

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Not a person but not nothing either o AG Ref (No3 of 1999) - D stabbed a pregnant woman, baby born but died = manslaughter; foetus not a part of mother - relationship special but one of bond and not identity. Foetus = a sui generis organism

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No interests warranting legal protection

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Can't be made a ward of court(ReF (in utero))

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No rights capable of being protected by others(e.g. father can't seek injunction to prevent abortion in his name)

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Embryo isn't a person+ has no rights under ECHR o Evans v Amicus - woman not allowed to use b/f's frozen eggs after they've divorced w/out his consent, although otherwise infertile. She had a right under Art 8 to reproduce to be balanced against b/f's right not to. HFE Authority has a reasonable approach to balancing these - not contrary to ECHR b/c legal certainty & need for public confidence in reproductive services justified it. o Vo v France - French law by not providing for offence of unintentional destruction of foetus wasn't contrary ti Art 2 ECHR (right to life) but no clear ruling on legal status of foetus Abortion Law

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A crim. offence unless Abortion Act 1967 provides a defence

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Offences (i) S58 OAPA 1861 - administering drugs/using instruments to procure abortion
? can be committed by pregnant woman/someone else w/intent to procure miscarriage (ii) s59 OAPA 1861 - supply of drugs, substances, instruments for unlawful abortion (iii) s1 Infant Life Preservation Act 1929 - any person w/intent to destroy life of child capable of being born (28 weeks, unless proven otherwise) by a wilful act causing him to die b/f he exists independent of his mother

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Defence
? Necessity - available to doc charged w/carrying out or procuring miscarriage + requires that probable consequence of pregnancy was to make woman a physical or mental wreck

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Legal Abortion - 4 Requirements (i) Done under authority of registered med practitioner (ii)In NHS hospital/approved place (iii) 2 med practitioners agree on statutory grounds in s1(1)(a) permitting abortion
? Can be 2 different grounds i. Risk to mental & physical health of the woman/her existing kids

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unless pregnancy post 24 weeks ii. Doc in good faith believes there's risk of grave permanent injury iii. Substantial risk child would suffer physical/mental abnormalities as seriously handicapped

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No time limit

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Serious handicap = assisted/dependent performance o Jepson v CC of West Mercia Police- abortion performed by doc b/c foetus suffered from left clip justified b/c no evidence that doc hadn't formed a view in good faith that child would be seriously handicapped
? Must notify relevant authorities of grounds + method used

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Emergency Abortion (s1(4)) - one doc + doesn't need to be in approved place

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Conscientious objection by doc/staff (s4)

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Injunctions by TPs to prevent abortion
? Rare - difficult to get standing, whether claiming in own right or on behalf of foetus
? Challenge brought by AG or CPS + could follow up w/JR o Paton v Trustees of BPAS - father couldn't obtain injunction to prevent abortion +
couldn't claim on behalf of foetus b/c not a legal person & had no standing

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Incompetent Ps (i) Adults If it's in P's best interests, can abort w/out court order
? Unless med opinion is divided or family strongly opposed (ii) Minors Under 16 - doc can abort w/out parents' consent if P: (a) Gillick competent (b) consented

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