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ABORTION AND REPRODUCTIVE MEDICINE
Herring Chapter 6 - Contraception, Abortion and Pregnancy
- Few topics arouse greater passion than those surrounding abortion and the regulation of pregnancy
The reason is that, for those on either side of the debate, the stakes are extremely high
- On one hand, there are those who regard abortion as murder of the most innocent and vulnerable human beings
OTOH, there are those who claim that access to abortion is a crucial part of the battle towards women's equality and is a fundamental right
For them, abortion and fertility decisions should be made by the woman alone, and should not be interfered with by the State
Even the questions you start with and the framing of the question can reflect a particular approach
- The law seeks to strike a somewhat uneasy balance between recognising that the foetus has some interests, reinforcing medical control over pregnancy and birth control, and protecting the rights of the pregnant woman
Cannot be forgotten that these issues affect millions of women in the UK
o By the time they are aged 45, a third of all women in the UK will have had an abortion
2. Contraception: its use and function
- Some argue the wide availability of effective contraception has done more to emancipate women than any other social development
2015 UN Report: worldwide 64% of women of reproductive age use contraception
81% in UK
- Most common forms of contraception:
o Injectable contraceptives
Female contraceptive pill
- There are serious disadvantages to all these forms of contraception
In a survey covering seven countries, a substantial majority of women were dissatisfied with all of the available methods of contraception.
o Two leading clinical experts working in the UK have stated: '[T]here is a real need for new methods of contraception to be developed that are more effective, easier to use,
and safer than existing methods.
- A major problem with all forms of contraception is reliability
One practical consequence of these failure rates is that, in about three -quarters of pregnancies ended by abortion, the woman was using some form of contraception at the time of conception.
o The National Institute for Health and Clinical Excellence (NICE) has recommended that wider use be made of reversible long-acting contraception
Despite a widespread perception of sexual promiscuity, a major government survey found that, of those aged 16-69,75 per cent of men had had only one sexual partner in the year prior to the interview and 11 per cent had had no sexual partners.
o For women, the corresponding statistics were 78 per cent and 13 per cent. It is notable that, of those seeking advice from National Health Service (NHS)
contraceptive clinics, 89 per cent were women.
o Sadly, contraception still seems to be regarded as largely a 'woman's responsibility
3. The availability of contraception
- Lord Denning, in Bravery v Bravery, suggested that a sterilization that is done 'so as to enable a man to have the pleasure of sexual intercourse, without shouldering the public interest attaching to it' was contrary to public policy and degrading to the man.
o But the judges gradually moved with the times and, in Gillick v West Norfolk and
Wisbech Area Health Authority, Lord Scarman held that contraceptive medical treatment is 'recognized as a legitimate and beneficial treatment in cases where it is medically indicated'.
o Most would agree with the statement by Mumby J in R (Smeaton) v The Secretary of
State for Health: It is, as it seems to me, for individual men and woman, acting in what they believe to be good conscience, applying those standards which they think appropriate, and in consultation with appropriate professional (and, if they wish,
spiritual) advisers, to decide whether or not to use IUDs, the pill, the mini-pill and the morning-after pill. It is no business of government, judges or the law.
- In fact, the law does regard contraception as part of the state's business.
o Contraceptives are medical products that must be licensed by the Medicines and
Healthcare products Regulatory Agency (MHRA) ofthe European Medicines Agency
(EMA) before use
Also, the National Health Service Act 2006, Schedule 1, paragraph 8, places a duty upon the Secretary of State, who:
o must arrange, to such extent as he considers necessary to meet all reasonable requirements, for (a) the giving of advice on contraception,
(b) the medical examination of persons seeking advice on contraception,
(c) the treatment of such persons, and
(d) the supply of contraceptive substances and appliances.
o In effect, it means that anyone should be able to access contraception.
- It must not, however, be thought that there are no barriers to accessing contraceptive treatment.
- 1) First, the oral contraceptive pill is available only under prescription or from pharmacists.
o This is because, for people with certain medical conditions, it can carry serious side effects, and it is thought that the pill should be used only under medical supervision.
o However, condoms and, significantly, post-coital contraception is available over the counter at a pharmacy.
- 2) The second barrier is cost: although contraception provided under prescription is free, as is contraception (including condoms) provided at family planning clinics, when purchased at a supermarket, a packet of twelve condoms can cost around £10.
o Although, to many, these barriers appear small, as we shall see they are significant to some young people
Sterilizations are available on the NHS, although about one third are carried out privately. In 1999, there were 64,422 vasectomies and 41,300 tubal occlusions.
o The number of sterilizations carried out by the NHS had dramatically fallen by 2010-ll to 12,700 vasectomies for men and 9,700 tubal occlusions for women.
o This might, in part, be explained by an increase in the use of long-acting contraceptives
- McQueen: women under 30 who have no had children find it very difficult to obtain sterilisations, with MPs saying that they are too young and may regret the decision
He notes that men seem to find it easier to access sterilisation, suggesting gendered assumptions about sterilisations are playing a role
- There is also widespread use of 'emergency contraception', for which, in 2013, there were 332,660 prescriptions.
4. Teenage pregnancy rates
- For every 1000 girls under 15-17 in England and Wales, 21.0 became pregnant in 2015
This rate has been falling dramatically in recent years
In 2013, it was 24.5
- The estimated number of conceptions to women under 16 was 3,455,, compared with 4648 in 2013
Less than one third of young people under the age of 16 have sexual intercourse, but of those that do, many do not use contraception.
o One study found that 25 per cent of people did not use contraception during their first experience of sexual intercourse.
o England and Wales has the highest teenage pregnancy and teenage parenthood rates in Europe
- The BMA has acknowledged a "clear need" to improve access to contraception
Although contraception is widely available, young people find it difficult to access it
The reasons are unclear
It may be they are not aware that it is available free of charge or that they are concerned about confidentiality.
o There may even be practical difficulties getting to see a general practitioner (GP) out of school hours.
5. Abortion and contraception
- At the heart of the legal regulation of fertility is a distinction between abortion and contraception. If a technique is classified as producing an abortion or miscarriage, its regulation is entirely different from where it is classified as a contraceptive.
o As we shall see later in this chapter, there is a host of detailed regulations governing abortion.
o The following decision is now the leading authority on the distinction
- R (John Smeaton on behalf of SPUC) v The Secretary of State for Health  2 FCR 193
The Society for the Protection of the Unborn Child (SPUC) sought to challenge the legality of the Prescription Only Medicines (Human Use) Amendment (No. 3) Order 2000,53 which permitted the sale of the morning-after pill without prescription.
o The Offences Against the Person Act 1861, sections 58 and 59 (creating the offence of procuring a miscarriage), mean that substances that cause miscarriage or abortion may be administered only if two doctors certify that the conditions set out in the 1967 Abortion Act are satisfied .
o Otherwise, the use of such substances is, in principle, potentially criminal ---
o The question was whether the morning after pill was such a substance
To answer the question, Mum by J explained the 'medical facts':
o Put very simply, there are two key stages in the biological process following sexual intercourse:
o (i) The first is fertilisation. This takes place after the man's sperm and the woman's egg have met in the fallopian tube. it is a process which commences hours, or even days, after sexual intercourse. The process itself takes many hours.
o (ii) The other key stage is implantation. This takes place after the fertilised egg has moved into the womb. it involves a process by which the fertilised egg physically attaches itself to the wall of the womb. The process does not start until, at the earliest, some four days after the commencement of fertilisation. The process of implantation itself takes some days.
The SPUC argued that contraception -> preventing fertilisation and after fertilisation, any procedure that caused the loss of a fertilised egg -> abortion
The morning-after pill (and indeed the normal contraceptive pill) operate, in some cases, to prevent fertilization and in others to prevent implantation.
o However, the morning-after pill (and the normal pill) cannot work once the fertilized eggs are implanted.
The SPUC argued that the word "miscarriage" at least as understood in 1861, included preventing implantation.
o The aim of Parliament in 1861 was to prohibit all attempts to abort, from the moment of fertilization.
o Munby J rejected this for two reasons
1) As a matter of law, the decision must ultimately turn not on what the word
'miscarriage' was understood to mean in 1861 but rather on what it means today.
2) Whatever it may or may not have meant in 1861 the word 'miscarriage'
today means the termination of an established pregnancy, and there is no established pregnancy prior to implantation.
There is no miscarriage if a fertilised egg is lost prior to implantation. Current medical understanding of what is meant by 'miscarriage' excludes results brought about by the pill, the mini-pill or the morning-after pill. That is also, I
should add, the current understanding of the word 'miscarriage' when used by lay people in its popular sense.
o Thus, the morning-after pill was considered a form of contraceptive and not abortion for the purposes of the legislative scheme
Part of Mumby J's reasoning was based on the social benefits of the availability of emergency contraception.
o He accepted the point that: 'Emergency contraception is safe, simple and effective.
o Abortion is both medically and psychologically invasive.'
o All of the evidence was that if emergency contraception were not available, the number of abortions would greatly increase, and this, he thought, would be a bad thing
Also, he pointed out that if the SPUC's arguments were accepted, then use of the contraceptive pill itself, where it operated to prevent implantation (as opposed to conception), would be criminal. The pill is used by millions of women and it could not be Parliament's intention that its use was unlawful
- The effect, then, of Mumby J's judgment in this case is that the line between contraception and abortion is not pre- and post-conception, but before and after implantation .
o Sally Sheldon: this may prove problematic as many modern forms of contraceptive drugs can operate post-implantation.
o She suggests the current distinction based on implantation is looking increasingly
Victorian and out of touch with modern forms of birth control
6. Contraception and children
- A D is permitted to provide contraceptive advice to those under the age of 16
However, the position is not straightforward
Leading case is Gillick
- Gillick v West Norfolk and Wisbech Area Health Authority  AC 112
Mrs Gillick sought to challenge the legality of a Department of Health circular that permitted doctors to provide contraceptive advice and treatment to those under the age of 16 without parental permission.
o The House of Lords held that it was lawful for a doctor to do so, provided that the child is sufficiently mature to understand the medical, social, and family issues involved, and the child can provide an effective consent.
Therefore, maturity and the ability to understand the issues determined whether a person was competent, rather than age.
o The majority emphasized that even if a child's parents do not want the child to have contraceptive advice, it was still open to a doctor to provide the advice if the child was competent to make the decision.
- Some commentators have seen a distinction between the approach of Lord Fraser and Lord
Scarman in the case.
o Lord Fraser emphasized that the doctor can treat a Gillick competent child with contraceptive treatment only if to do so would be in her best interests.
o However, Lord Scarman makes no reference to 'best interests'.
it may be that this is because Lord Scarman thought it self-evident that a doctor would act only in a way that benefited his or her patient.
An alternative interpretation is that there is a difference: Lord Scarman thought that a doctor could treat a competent child seeking treatment unless to do so would harm the child; while Lord Fraser thought that the doctor would have to be convinced that the treatment benefited the child.
- Their Lordships dealt with two other issues.
o First, it was emphasized that a doctor owes a child patient a duty of confidentiality.
The doctor should not inform the child's parents of the visit.
o Second, their Lordships responded to an argument that the provision of contraception to an underage person could be regarded as a criminal offence of assisting in the commission of a child sex offence.
o The House of Lords held that the doctor could not be guilty of an offence because he or she did not intend the child to engage in sexual intercourse. Although a controversial piece of reasoning, this issue has now been addressed by the Sexual
Offences Act 2003, and so it is not necessary to consider this aspect of their
Lordship's judgment further o
As Gillick makes clear, a doctor can provide contraceptive advice and treatment to someone under the age of 16 if the child has sufficient maturity and intelligence to understand the issues involved, and is therefore competent to give consent to the treatment provided
There may also, it appears from Lord Fraser's speech, be a requirement that any treatment provided is in the child's interests. Because the House of Lords appeared to approve of the general social policy of making contraception available to competent sexually active minors, it may be thought to complicate a GP's job unnecessarily if he or she is to consider whether or not the contraception is in the child's 'best interests'.
o There have been reports of children as young as 10 being given the contraceptive pill
- There is still the concern that by providing contraception, a doctor might be said to be aiding or abetting the commission of a child abuse offence.
o However, s73 SOA makes clear that if a doctor acts to protect the child's health, he will not be guilty as an accessory to a criminal offence against the child by providing contraceptive advice or treatment
7. Contraception, sterilisation, and those lacking capacity
7.1 Contraception and those lacking capacity
- The leading case on whether an adult has the capacity to consent to receive contraception is
A Local Authority v Mrs A and Mr A (discussed in Chapter 4).
o In that case, it was held that it was necessary to show only that the person understood the proximate issues relating to contraception: the reason for contraception; how contraception works and the likelihood of pregnancy if contraception is not used; the different types of contraception; their effectiveness;
their side effects; the advantages and disadvantages of each; and the ease of changing contraception.
o Bodey J rejected an argument that it was also necessary to show that the individual understood the broader issues surrounding pregnancy and the realities of bringing up a child
He explained that to require this would 'risk a move away from personal autonomy in the direction of social engineering'.
His concern was that it would become too easy to say that someone it was thought would not be a good mother did not really understand what motherhood was about.
However, that raises the issue of whether a decision about contraception that is made with no real understanding of the broader consequences is really an autonomous decision.
o Bodey J was clearly also influenced by pragmatic considerations.
He explained that to test whether a woman had properly understood what caring for a child would be like would be unrealistic in the real world. In family planning clinics or doctors' clinics, there was not enough time to assess whether a patient appreciated what it would be like to raise a child.
o Notably, in that case, although it was decided that Mrs A lacked capacity to make the decision about contraception, it was ruled not to be in her best interests to be compelled to have it
It was held to be preferable to seek to persuade her to agree to have the contraception voluntarily.
That may be contrasted with A Mental Trust v DD where receiving the contraceptive injection was so important to her best interests that the court authorized the use of force if necessary to ensure she received it
7.2 The law and sterilisation of those lacking capacity
- Is it ever appropriate to sterilize a person without his or her consent? At first, this appears a horrific suggestion, but it is a reasonably common practice.
In the not-too distant past, it was part of eugenics, whereby it was thought appropriate to sterilize 'undesirables' to prevent them producing children who would be similarly undesirable.
o This kind of thinking was revealed by the judgment of Justice Oliver Wendell Holmes in Buck v Bell (see tb)
o Also seen in Nazi regime
- Nowadays, few people openly support eugenics, but it is thought appropriate to sterilize people lacking capacity because to do so would be in their best interests.
o However, with the possibility of long-acting contraception, it is rarer for full sterilisation to be necessary
- The legal position on sterilisation is as follows:
o If a doctor wishes to sterilize a patient, the normal rules on consent apply.
o So if the patient is an adult and competent, he or she cannot be sterilized without consent
If a patient lacks capacity, and a doctor believes that a sterilization would be in the patient's best interests and is the least intrusive way of protecting the patient's interests, then the sterilization can be performed.
o Approval of the Court must be obtained first
This will now be governed by the MCA 2005
- In determining whether sterilization is in a patient's best interests under section 4, the MCA
2005 Code of Practice states that the courts should follow the approach that they have developed in the earlier case law, which was also based on ascertaining the best interests of the patient
However, the House of Lords in F v West Berkshire Health Authority emphasized that if the sterilization is for non-therapeutic reasons (that is, it is not required to treat a medical condition), then a court declaration that the sterilization would be lawful should be sought.
In the case of a child, this could be an application made under the Children
Act 1989 or under the wardship jurisdiction.
In the cases of an adult lacking capacity, the court can declare a sterilization lawful under the MCA 2005, section 15.
o There is no need to obtain court authorization if there are therapeutic reasons for the sterilization (for example to deal with excessive menstruation or to deal with cancer),
as long as the sterilization is the least intrusive way of dealing with the medical problem
- It is not quite clear what the legal position is where a doctor fails to obtain a court order authorizing sterilization that is not for therapeutic purposes.
o Technically, the court order made in this kind of case is a formal declaration that the procedure is lawful.
o In other words, it does not render a procedure lawful; it simply confirms the legal position.
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