This post will provide a whistle-stop tour of the development of the law around abortion in England and Wales bringing us to where we are today. The three major Acts to consider are:
- The Offences Against the Person Act 1861
- The Infant Life (Preservation) Act 1929
- The Abortion Act 1967
The first statute in English law that governed crimes against an unborn foetus was the Offences Against the Person Act 1861. The relevant provision is found at sections 58-59, which discuss the offences surrounding the procuring of an abortion. Section 58 provided a clear position that ‘any attempt at abortion’ was illegal. In other words, from the point of conception there is no circumstance in which it is acceptable for that pregnancy to be prevented from fulfilling its natural course. This suggested that the unborn foetus was classed as a ‘human’ from the moment of fertilisation because it is entitled to grow and develop as per any human. In addition the penalty for aborting a child was worthy of note: ‘Penal servitude for life’. The offence of manslaughter carried the same punishment as the offence of aborting a child. This suggests that there is an understanding that a life has been lost and the punishment for the termination of an unborn child must represent that. The punishment for assault occasioning grievous bodily harm is ‘penal servitude of three years’. This comparison highlights the fact that harming another human was not considered as fateful an act as aborting an unborn foetus. Legally, the human foetus was granted a legal right to life as there was no mechanism allowed to terminate it. The foetus had to be allowed its natural chance, there was no mechanism for abortion and the punishment reflected that of manslaughter.
The late 1920s saw the introduction of the Infant Life (Preservation) Act 1929. The Act lists the offence of ‘any person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction’. This was a nod towards the argument that if it is established that a foetus would not survive outside the womb then an abortion may be a suitable mechanism to conclude the pregnancy. One condition was provided for in the Act under which a medical practitioner could perform an abortion and that was ‘for the purpose only of preserving the life of the mother’. The punishment for child destruction under the 1929 Act remained the same is in the OAPA 1861, i.e. ‘penal servitude for life’.
Thirty-eight years later the Abortion Act 1967 was the first statute to provide legal assurance to both a mother and the doctor performing a medical termination that they are not guilty of committing a crime if the procedure is followed in good faith. Whereas in the 1929 Act there was one very strict condition under which an abortion could be performed, the 1967 Act introduced a much wider scope. ‘Continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family’. Introducing the ‘mental health’ caveat opened up all possibilities and, according to SPUC, is the legal basis for ‘97-98%’ majority of medical terminations nowadays. This is a significant shift in the status of the unborn human foetus’ legal status as the freedom to abort the pregnancy is firmly in the realm of the mother, albeit before the 24 week threshold. After the 24 week threshold the status as established under the previously examined statutes remains.
Furthermore, it is not just the health of the mother than can be cause for a medical termination. Another provision allows for the medical termination of an unborn foetus if ‘there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be considered seriously handicapped’. Here is a mechanism by which an unborn child with mental or physical abnormalities can be discarded if it can be deemed to be ‘seriously handicapped’.
No punishment as such is listed under this Act for disobeying it because it provides the guidelines for what is legal rather than what is not. Section 5(1-2) of the 1967 Act outline that the provisions within the 1929 and 1861 Acts respectively stand, when applicable, if the grounds outlined in s1 of the 1967 Act are not adhered to.
The law around abortion has evidently changed a huge amount through the 19th and 20th centuries and this, like many changes in law, was swept along by the changing views of society in general.
The 19th and 20th centuries saw major landmarks in the development of the law around abortion. From any abortion being an offence comparable to manslaughter, to allowing it for the sake of saving the life of the mother, to where we are now i.e. if the physical or mental health of the mother (or any other child in the family) may suffer as a consequence.
This is a position that the law seems to have settled upon. Whilst some may wish for the law to go further to freely allow a woman to choose without medical justification, the law as it is seems to concede enough leeway that arguably this is the case in reality.
 Offences Against the Person Act 1861 s 58.
 OAPA s 5.
 OAPA s 20.
 Infant Life (Preservation) Act s1(1).
 ILPA s1(1).
 ILPA s1(1).
 Abortion Act 1967 s 1(1)(a).
 ——, ‘UK Abortion Law’ (Society for the Protection of Unborn Children webpage, 2017)
 AA 1967 s 1(1)(d).
 AA 1967 s 5(1-2).