The inadequacy of our abortion laws

It may be that a woman's fear of her baby's slight deformity evaporates when her child is born

The Reverend Joanna Jepson was browsing though some national abortion statistics last October, when she noticed that a late termination had been granted because a scan had shown a foetus to have a cleft lip and palate.

Abortions after 24 weeks can only be carried out when there is "a high risk of severe abnormality". Ms Jepson considered that a cleft lip and palate, usually corrected by surgery in the first months of a baby's life, was not such a deformity.

She therefore reported the breach of the 1967 Abortion Act to West Mercia police, who declined to take matters further. Ms Jepson was far from satisfied by that, and decided to pursue the case as far as she could.

Yesterday, Ms Jepson won the right to challenge the decision of the police not to prosecute the doctors who performed what Ms Jepson contends was an illegal abortion. The 27-year-old curate has much further to go before she secures the judicial review that she seeks. But yesterday's ruling still marked an important first step.

There can be no doubt that Ms Jepson's own experience of life has coloured her views in this matter. She herself was born with a much more serious facial deformity, which was not corrected by surgery until she was a young woman. Ms Jepson feels a personal connection with the case, and suggests that: "It shows how enslaved we are to the notion that the value of our human life lies in physical perfection."

Maybe it does. Heaven knows that we do show plenty of signs of being at the whim of such enslavement. Ms Jepson herself, after a miserable childhood of bullying, jumped at the chance to correct her deformity, and admits that her life improved greatly since.

Certainly there is an immediate picture that springs to mind, so schooled are we in ideas about "designer babies", when we hear about this case. That picture is of a spoiled woman or couple, keen for their baby to be the bonniest in the world, suddenly turning against their offspring when they learn that perfection is not to be.

That picture includes a willing team of medical specialists, hardened against the sanctity of life, and only too keen to propagate the idea that it is better to start from scratch again than lumbering oneself with a child one is not completely satisfied with. Why have a child who will need some operations, when you can have another go?

That really is a grotesque and horrible scenario, one which Ms Jepson and the High Court are right to be disturbed by. Indeed, the idea that parents and medical professionals sometimes do consider something as minor as a cleft palate to be reasonable grounds for a termination is backed up by other cases in the document Ms Jepson perused. In it, nine other babies were listed as having been aborted because of a cleft palate but prior to the 24-week watershed.

In fact, the chances are that these abortions were carried out pretty close to the 24-week boundary, because cleft palate cannot be diagnosed until late in the second trimester. But in these nine cases, because of the 24-week watershed, even minor mental distress of the woman can be taken into consideration when deciding whether an abortion is necessary. Most abortions, after all, are carried out on absolutely perfect babies, because the mother, for whatever reason, does not feel herself to be in a position to have a child.

After the 24 weeks are up, such considerations are no longer supposed to count. Only "grave permanent injury to the physical or mental health of the pregnant woman" is legally permissible.

Yet the probability is that the doctors involved in this case, rather than being hardline eugenicists, were swayed too much by the mental state of the woman seeking the abortion. There is every possibility that this case showed, more than it showed "how enslaved we are to the notion that the value of our human life lies in physical perfection", that the woman who sought the abortion was deeply ambivalent about having another child for all sorts of other reasons, and reacted badly to the news that the child would not be "perfect" because of various other factors as well.

It may have showed also that her doctor was extremely worried about her attitudes to the pregnancy, and the psychological effect it was having on her, and was swayed into making a decision because of those considerations when he or she should not have been.

Possibily, after seeing the scan which showed her child's slight imperfection, the woman in question had been assailed by nightmares about deformity and paranoid worries about giving birth to a monstrous child. Many women are familiar with such anxieties, and remember finding much relief in the sight of a scan showing that their child is all right.

Others may understand that in a woman who is not psychologically robust, an unreassuring scan might unleash some really hysterical mental anguish, anguish that logical discussion of her baby's chances of complete recovery are unable to dislodge. This distress may not be demonstrably "grave permanent injury", but it could nevertheless lead to post-natal depression or an inability to form a normal bond with the baby.

In other words, while Ms Jepson is right to seek to close one loophole in the law - which fails to define just what a serious physical deformity is - she may also be exposing a problem with the law that does not give doctors enough leeway to make decisions about the mental state of patients requesting terminations when there are reasonable grounds for them not to have done so prior to the 24-week mark.

It is wrong for a cleft palate to be given as a reason for an abortion, for the reasons that Ms Jepson states, but in the event of any abortion, not just one carried out after 24 weeks. That such a piffling condition, so curable, should be considered by the medical profession to be "such physical or mental abnormalities as to be seriously handicapped" is deeply worrying.

At the same time though, I think that preparedness to abort a previously wanted baby because of such a mild deformity is a sign of mental instability in itself. If the mother is having an illogical and unwarranted reaction to such news, can it be right, if all persuasion cannot calm her, to refuse to intervene to help her?

Possibly, yes. Women are not known for being entirely logical during pregnancy, and it may be that a woman's fear of her baby's slight deformity evaporates when her child is born. Even if it doesn't, the fact that straightforward surgical procedures can cure such a deformity should be enough to gladden the heart of any parent.

But if a woman's fear of the child she is carrying is deemed great enough to be causing her severe mental anguish, even if it is not going to be "permanent", I would argue that she should not be forced to go through with the birth. In other words, while Ms Jepson is right to want the law to be clarified, and is right to be appalled that cleft palate is considered reasonable grounds for an abortion, the truth is that a woman's feelings about such facts do have to be considered as well.

The Hertfordshire woman who triggered this controversy should be clear about one thing. Her termination came about because of her own inadequacy and not the inadequacy of her unborn child. It may seem harsh, but it dishonours all "imperfect" humans, to suggest that it could be otherwise.

d.orr@ independent.co.uk