Abortion Legal If Doctor Satisfied

The abortion law in Britain is governed by the Offences Against the Person Act 1861, section 58, which includes the following extract:

"Whosoever with intent to procure the miscarriage of any woman, whether she be, or be not with child, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instruments or other means whatsoever, with the like intent, shall be guilty of felony."

No exception was expressed for therapeutic abortions, which is not surprising in view of the state of surgery in 1861.

An exception for the latter stages of pregnancy was, however, enacted under the provisions of the Infant Life (Preservation) Act 1929, which applied to a child.

A child was defined as being prima facie capable of being born alive where the mother had been pregnant for a period of 28 weeks or more; to kill such a child before its birth became, under the act, a crime punishable by life imprisonment.

The exceptions to the above provisions are contained in the proviso s.1(1) which enacts that no person is to be found guilty of an offence under the act unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.

Note that proof of the lack of good faith must therefore rest on the prosecution.

This act legalised the long-accepted medical practice of destroying the child in the womb, however near it was to birth, if the mother's life could not be saved any other way.

Similar provisions are enacted in New Zealand under s.182 of the Crimes Act. 1961.

In R v. Bergmann and Ferguson [1949] Glanville Williams quotes from the official transcript of Morris. J.'s direction to the jury.

"You are not concerned with the question as to whether Dr. Ferguson arrived at the right conclusion . . . did or did not make a mistake . . . you have to be satisfied that she expressed a dishonest opinion ... did not act in good faith, and was therefore advising something that was unlawful."

Thus the direction in R. v. Bourne and particularly in R. v. Bergmann and Ferguson makes it clear that the medical necessity of an abortion is to be determined by the honest opinion of the doctor, and not by necessity in the view of a jury, although the doctor must be prepared to justify his opinion in court so that he may show that he acted in good faith.

J.L.