Changes to Abortion Law seek to modernise legislation and reflect best clinical practice

THANK you for the opportunity to respond to the open letter signed by Deputies Meerveld, McKenna, Dyke, Blin, Aldwell, Murray, Gollop and Queripel in relation to the Abortion (Guernsey) (Amendment) Law, 2021 (‘the Amendment Law’). The Law was approved by the States of Deliberation on 15th July 2021 by a significant majority (27 votes for, 11 against).

The open letter expresses concern with five areas of the Amendment Law, which the Committee for Health & Social Care wishes to respond to as follows:

1. The decriminalisation of women who procure, or attempt to procure, an abortion of their own pregnancy

Of those jurisdictions that have implemented legislation to decriminalise women, the Committee for Health & Social Care is not aware of any gestational limit associated with these provisions. The given example of New South Wales is incorrect. Section 12 of the Abortion Law Reform Act 2019 was enacted in New South Wales on 3rd October 2019. This does not specify such a time limit and states the following:

‘Despite any other Act, a person who consents to, assists in, or performs a termination on themselves does not commit an offence.’

The reasons for the recommendation to decriminalise women who procure, or attempt to procure, an abortion of their own pregnancy, was summarised in the Committee’s Policy Letter (paragraphs 5.33-5.35) (Billet d’État XIII of 2020). Proposition 1 giving effect to this change was approved by the States at this time and subsequently incorporated into the Amendment Law.

2. Abortion procedures performed under section 3(1)(d)

It is incorrect to assert that the scientific evidence that supports the change to abortion procedures performed under section 3(1)(d) of the Law is out of date.

High quality data on the outcomes of infants that die before, during or after birth is collected continually and carefully analysed by MBRRACE-UK(1) experts annually, with data from Guernsey and Jersey contributing to this large surveillance programme. While there has been some small incremental improvements in survival for the most premature infants over the last 10-20 years, there is no convincing evidence to support any change to the threshold of viability. As such, no amendments to the Abortion Act 1967 in this area have been made since 1991. The Abortion Act 1967 has force in England, Scotland and Wales.

(1) Mothers and Babies: Reducing Risk through Audits and Confidential Enquiries across the UK

3. Procedures performed in the presence of fetal anomaly

The Committee is satisfied that the provision within the Amendment Law does not affect the rights of those in the community living with a disability and notes the 2018 joint statement from the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of Persons with Disabilities (CRPD), who state that access to safe and legal abortion are essential aspects of women’s reproductive health.

Theresia Degener, chairperson of the CRPD says, ‘I am very concerned that opponents of reproductive rights and autonomy often actively and deliberately refer to disability rights in an effort to restrict or prohibit women’s access to safe abortion. This constitutes a misinterpretation of the Convention on the Rights of Persons with Disabilities. Disability rights and gender equality are two components of the same human rights standard that should not be construed as conflicting.’ (2)

(2) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23503&LangID=E

4. Healthcare staff who refuse to provide abortion care

Section 5(1) of the Abortion (Guernsey) Law, 1997 protects the right of those individuals who refuse to participate in providing abortion care and this right will remain. The Amendment Law does not repeal this provision, but instead includes an exemption to this clause which will prohibit staff members refusing to provide basic nursing care that is far removed from the abortion procedure itself. This seeks to clarify the scope of any such objection whilst ensuring that high levels of care for all service users are maintained.

The power for the Committee to make regulations may be used to further guide clinical practice according to the expectations and requirements to maintain registration with the General Medical Council or the Nursing and Midwifery Council (NMC). Both the Royal College of Nursing and Royal College of Midwifery respect the right to refuse participation in abortion care but are explicit that this only extends to direct participation in the abortion procedure itself. There is no intention for the arrangements in relation to conscientious objection to extend further than the requirements of The Code issued by the NMC.

5. Removing the requirement for two medical practitioners to certify an abortion procedure

The UK House of Commons Science and Technology Committee has deduced that certification from two doctors does not provide any meaningful safeguard or other useful purpose but actually causes unnecessary delays in access to care and therefore recommends removing this requirement. This view is shared by the World Health Organization.

Regardless of the legal requirement, the complex testing required to assist with a diagnosis and prognosis is undertaken by a team of health professionals, including midwives, sonographers, laboratory scientists, obstetricians and in the most complicated cases paediatricians, fetal medicine specialists and others.

Concluding remarks

The signatories to the open letter refer to the Committee’s proposals going ‘much further than expected and well beyond the UK law’. The Committee would comment that there is no ‘UK law,’ with the British jurisdictions having various pieces of legislation in place.

The changes which have been approved to the Abortion Law in Guernsey do not extend abortion provision beyond what can already be seen across abortion legislation in Jersey, the Isle of Man, Northern Ireland, the Republic of Ireland and England, Scotland and Wales, when considered together, and seek to modernise the legislation in a number of areas to reflect best clinical practice.

DEPUTY AL BROUARD

President

Committee for Health & Social Care

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