The first claimant was a 25-year-old woman with Down’s Syndrome (“DS”) who had campaigned to change attitudes towards people with DS and in particular for the removal of what she believed were the discriminatory provisions of the Abortion Act 1967. The second claimant was the mother of the third claimant, aged two, with DS. She complained that when she was 35 weeks pregnant with him, and he was identified as very likely to have DS, the pressure she was put under and, amongst other things, negativity about DS including the fear engendered about having a child with DS all conveyed the message to her that a life with DS was of no value. Abortion was a criminal offence under section 58 of the Offences Against the Person Act 1861, which made it a criminal offence to administer drugs or use instruments to procure an abortion; and section 59 which made it a criminal offence to supply or procure drugs or any instrument for the purpose of procuring an abortion. By section 1(1) of the 1967 Act, a person was not guilty of an offence under the law relating to abortion when a pregnancy was terminated by a registered medical practitioner if two registered medical practitioners were of the opinion, formed in good faith—(d) that there was a substantial risk that if the child was born it would suffer from such physical or mental abnormalities as to be seriously handicapped. The claimants sought judicial review and a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”) in respect of section 1(1)(d) of the 1967 Act, contending that section 1(1)(d) was incompatible with articles 2 (right to life), 3 (right not to be subjected to torture or to inhuman or degrading treatment or punishment), 8 (right to respect for private and family life) and 14 (right to enjoy the convention rights (as set out in Schedule 1 to the HRA) without discrimination) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. They also sought related declarations.
The claimants argued that it was impermissible to differentiate, as the 1967 Act did, between pregnancies where there was a substantial risk that, if born, a child would be “seriously handicapped” and those where it would not. They contended that section 1(1)(d) of the 1967 Act was incompatible with article 2, in that it placed in danger the life of a disabled unborn child, such as the third claimant, at a time when it was both viable and sentient, by permitting abortion in circumstances where, and at a time at which, it would not be permitted in the case of a non-disabled child. An unborn child immediately prior to full-term birth which would be capable of living outside the womb was protected from death by other domestic legislation. The Strasbourg institutions had never been asked to consider the position of an unborn child after the point of viability and the cases to date had all concerned abortions which had taken place before the third trimester and thus before viability. An unborn child fell within the meaning of “everyone” to whom convention rights should be afforded in circumstances where it was capable of life outside the womb and, in particular, in the period immediately before birth (at 36 weeks in the case of the third claimant). Domestic law recognised the existence of human life worthy of protection equivalent to the law of murder from the point of viability. Parliament had created an offence (child destruction) which was the equivalent of murder. The Congenital Disabilities (Civil Liability) Act 1976, and the common law which preceded it, recognised that duties were owed to an unborn child (and correlative rights in the unborn child), which were expressly or impliedly based upon the foetus having human life or at least the potential for human life. In respect of article 3, the third claimant contended that as a termination immediately before birth at 36 weeks would have caused him intense suffering at a time when he was fully developed and sentient, it would have been a breach of his rights under article 3. The serious risk of being exposed to death, along with the absence of any protection against the concomitant pain and suffering, constituted a violation of the article 3 rights of a disabled unborn child up to the time immediately before birth. Abortions performed upon a viable unborn child which was capable of feeling pain or liable to a degree of suffering, was a violation of human dignity, and incompatible with article 3. Section 1(1)(d) of the 1967 Act was in breach of article 8 and even if it did not do so directly, it fell within the “ambit” of article 8 so as to bring into play the equality provision in article 14. The decision to become or not to become a parent, and the regulation of abortion, fell within the sphere of private life. The rights to identity and personal development, to establish and develop relationships with other human beings and the outside world, and to dignity and autonomy, which were inherent within the concept of “private life” in article 8, were threatened by negative stereotyping.
On the claim—
Held, claim dismissed. (1) In respect of article 2, the fundamental difficulty facing the claimants’ arguments was that the European Court had never decided that a foetus, even one post-viability, was the bearer of convention rights, including article 2. To the contrary, it had been content to leave that controversial and difficult issue of when life begins to the margin of appreciation of contracting states. The fact that both domestic legislation and courts, and the European Court itself, had recognised that there might be circumstances in which the foetus had interests which the state was entitled to protect did not lead to the proposition that it enjoyed rights under article 2. The fact that the domestic law of murder did not protect the life of the unborn child was itself telling. The law of murder did not apply to a human foetus before the moment of birth. To be the victim of a murder, a baby had to have been born alive and to have an existence independent of its mother. It was a matter for Parliament to decide to change the law in that respect. The “Ullah” principle, that the domestic courts should normally follow the clear and constant jurisprudence of the Strasbourg Court, applied (paras 62, 63, 64, 71, 156).
(2) In respect of article 3, there was no positive decision of the European Court of Human Rights (or even the former Commission) which decided that a foetus was protected by the convention rights, including in particular article 3. In accordance with the Ullah principle, the domestic courts should follow the clear and constant jurisprudence in Strasbourg but, in the present context, the clear and constant jurisprudence was not in favour of the claimant’s arguments. The consistent case law of the European Court of Human Rights was that the issue of whether a foetus was the bearer of convention rights was left to the member states. There was no decision in Strasbourg which supported the claimant’s submissions (paras 80, 81, 82, 83).
(3) The decision whether or not to become a parent or to continue with a pregnancy fell within the scope of article 8, but that was to do with the rights of the pregnant woman, and said nothing about the rights of others, including those like the first claimant and the third claimant who had been born. Section 1(1)(d) did not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities. There was no causal connection between that legislative provision, focused on the rights of pregnant women and their medical treatment, and any discrimination that continued to be suffered by those with DS despite the extensive legislative provisions aimed at preventing such discrimination, in particular in the Equality Act 2010. Therefore section 1(1)(d) did not interfere with the claimants’ article 8 rights to respect for private and family life nor did it fall within the ambit of article 8 for the purposes of article 14. In respect of the claimant’s arguments that any interference with article 8 rights was not “in accordance with the law”; and not proportionate or justified under article 8(2), the concepts of criteria of “substantial risk” and “serious handicap” used in section 1(1)(d) of the 1967 Act were not too vague to constitute law, the Strasbourg jurisprudence adopted “a realistic and pragmatic approach” and acknowledged that there were some contexts in which it was impracticable to define with precision how a discretionary power would or might be exercised. With regard to justification, whatever the number of states that permitted abortion on grounds of foetal abnormality, there was no international consensus in the Council of Europe on that sensitive issue. Accordingly, it was clear that the European Court gave a wide margin of appreciation in that context. Secondly, in the domestic constitutional context, it was a field where it was particularly important to give Parliament a wide margin of judgement. That margin was not unlimited and the courts had an important role to play under section 4 of the HRA, which Parliament itself had given to them. Where difficult issues about balancing various interests arose, Parliament should be given a great deal of respect. Parliament gave a choice to women; it did not impose its will upon them. Some families would positively wish to have a child, even knowing that it would be born with severe disabilities, but other families might react differently and the ability of families to provide a disabled child with a nurturing and supportive environment would vary significantly. There were still conditions which would only be identified late in a pregnancy, after 24 weeks and also circumstances where a woman only became aware of her pregnancy very late on in that pregnancy. Parliament had been entitled to conclude that it would not be feasible or desirable to set out an exhaustive list of foetal abnormalities rather than having the broader terminology used in section 1(1)(d). The issue fell within the margin of judgment afforded to Parliament. For all those reasons there was no breach of article 8 (paras 100, 102, 111–112, 123–127, 134, 135).
(4) In respect of article 14, there had been no breach of the convention rights and neither did the issues fall within the “ambit” of one of the substantive articles in the Convention. If they did, the “very weighty reasons” required to justify a difference in treatment on a particular ground did not necessarily exclude the possibility that a relatively wide margin of appreciation, and a correspondingly less intense standard of review, might nevertheless be appropriate. Those considerations were particularly apt in the present context, where a very difficult balance had to be struck by Parliament between the interests of the foetus and the rights of women. The judgment which Parliament had reached, in enacting section 1(1)(d) of the 1967 Act, fell within the margin afforded to Parliament. For all those reasons the claim would be dismissed (paras 137, 143–144, 147).
Jason Coppel QC and Emma McIlveen (instructed by Sinclairs) for the claimants.
Sir James Eadie QC, Julia Smyth and Yaaser Vanderman (instructed by the Treasury Solicitor) for the Secretary of State.