Curate wins legal challenge to late cleft-lip abortion

A curate has won the first round in her legal battle to stop doctors performing late abortions for what she believes are cosmetic or trivial reasons.

The High Court in London cleared the way yesterday for the Rev Joanna Jepson to challenge a decision by West Mercia Police not to prosecute doctors who performed a late-stage abortion on a foetus which had been diagnosed as having a cleft lip and palate.

Lord Justice Rose and Mr Justice Jackson said the case raised important issues of public concern that needed to be argued at a full hearing. Lawyers said the challenge could lead to a reform of abortion legislation if Ms Jepson succeeded in showing that the Abortion Act 1967 was incompatible with the Human Rights Act 2000.

Ms Jepson, 27, curate of St Michael's Church in Chester, brought her action after discovering that a mother had been granted an abortion beyond the 24-week legal limit for legal terminations. Doctors caring for the mother took the view that a cleft palate could be a "serious handicap" that permitted them to abort the pregnancy after the 24-week threshold.

Ms Jepson, who underwent restorative surgery after she was born with a bilateral cleft palate, said after the ruling that the police failure to prosecute in the case "betrays the true value of this baby's life". She added: "I hope we shall succeed at trial and recognise once again the value and dignity of our common humanity, disabled or able-bodied, no matter what we look like."

She described how she had been bullied as a teenager because of her facial disfigurement. "My teenage years were difficult due to facial abnormality," she said. "I also have a brother with Down's syndrome. We both live positive and fulfilling lives.

"The baby in this case did not have this opportunity, despite the availability of excellent and routine medical help. The benefits of this surgery would have been positive for both the child and family. However, the advice of the Royal College [of Obstetricians] and the conduct of the doctors involved denied the baby these opportunities."

"The positive response of the public as I have embarked on this litigation has been surprising and overwhelming. Each step has been taken with trepidation. I have been encouraged by the public's support." She said she noticed in October last year while browsing through national abortion statistics that nine babies had been aborted for a cleft palate before 24 weeks of pregnancy and one after 24 weeks. Under the Abortion Act 1967 doctors can only terminate beyond 24 weeks if there is a serious risk to the mother or the foetus is going to be born with a "serious handicap".

Ms Jepson's barrister, Richard Gordon QC, told the court that a cleft lip or palate was not a "serious handicap" within the meaning of the Act. He said West Mercia Police's decision to accept an interpretation of the law as stated in a letter written by the Royal College of Obstetricians and Gynaecologists was wrong.

The Royal College advised police that a decision to terminate a pregnancy on the grounds of "serious handicap" should be taken in consultation with the parents. Mr Gordon said such advice was inconsistent with the college's view that the parents' opinion was not part of the clinical evaluation. He said: "The parents' perception of seriousness is irrelevant."

If a cleft palate is not a serious handicap under the Abortion Act and the termination took place after 24 weeks, then police should have brought a prosecution, argues Ms Jepson.

Giving permission for a full hearing, Mr Justice Jackson said Ms Jepson had "substantial" legal and evidential hurdles to overcome in the next stage of her application for judicial review. But he added: "Notwithstanding that, I am persuaded, having listened to the statements of counsel, that this case does raise serious issues of law and issues of public importance which cannot be properly or fully argued in the context of a permission application."