Sat, Dec 06, 2003 - Page 9 News List

UK high court to decide whether a cleft palate justifies abortion

By Rebecca Allison  /  THE GUARDIAN , London

Two of the UK's leading judges have paved the way for a high court test case to examine the criteria necessary for an abortion to go ahead.

In a decision which focuses on the human rights of fetuses and could undermine a law which supporters insist has served women well for 35 years, Lord Justice Rose and Justice Jackson on Monday gave a Church of England curate permission to challenge a decision by police not to prosecute doctors who carried out an abortion on a fetus which had a cleft lip and palate.

Medical ethicists have warned that the case could have wider implications if as a result Parliament decides against setting new rules in other areas of medicine because it feels doctors cannot be trusted to follow them properly.

"It was quite clear in the 1990 parliamentary debate on amending the Abortion Act that the clause on late abortion must not be used for such trivial things as a cleft palate. If it [parliament] decides that doctors cannot be trusted to keep to the rules it is setting in areas such as this, then it may in future decide not to set new rules at all," Richard Nicholson, editor of the Bulletin of Medical Ethics, said.

The Reverend Joanna Jepson, curate of St Michael's church in Chester, believes the procedure at the center of the controversy, which was carried out late in the pregnancy, was "unlawful killing" and in breach of the abortion law. She has said her legal action is partly an attack on the cult of perfection, and she claims that the case raises the "increasingly worrying concern of eugenics in our society."

The termination was carried out after the normal 24-week time limit, which is only allowed in circumstances where the pregnancy is likely to result in the baby being born with severe physical or mental disability. What constitutes a "severe abnormality" is not fully defined by the law and allows doctors to exercise clinical judgment as well as taking the mother's wishes into consideration.

Jepson, who was born with a congenital jaw defect that was not corrected until her late teens, says a cleft palate is not a serious handicap and the law should not allow abortions for "trivial reasons."

The Cleft Lip and Palate Association backed her case, saying it would never condone a termination at 24 weeks if a foetus was diagnosed with a cleft palate and had no other medical complications.

The Society for the Protection of the Unborn Child also endorsed the young cleric's campaign, which it suggested could be expanded to include all disabilities.

"We would like to stress that we don't regard the right to life as dependent on any degree of handicap," the society's general secretary, Paul Tully, said.

But Jepson's critics are concerned that the case could wind up undermining the 1967 Abortion Act.

"We are flabbergasted that someone with absolutely no connection to this case can be allowed to bring an action like this. It is absolutely no business of hers," a spokesman for Marie Stopes International said.

"Two doctors in consultation with this particular woman reached a conclusion that it did constitute a serious handicap. It should not be for a disgruntled member of the public to question what should be a very private decision between a woman and her doctors. We too would like to see a change in the law, but one which would allow abortion on request, thus removing this whole questioning of women about their motives," the spokesman said.

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