Prenatal diagnosis: what is the law?
The Law surrounding termination for fetal abnormalities
The UK laws on abortion developed, essentially, to protect doctors from prosecution under the Offences Against The Person Act 1861 and the Infant Life (Preservation) Act 1929. In the UK, it is legal to terminate a pregnancy provided that one of 4 conditions has been met:
that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.1
Terminations carried out following prenatal diagnosis for genetic conditions would therefore fall under section 1(4), and as such have no time limit. The words ‘substantial’ and ‘serious’ are noteworthy; two practitioners should have formed the ‘good faith’ opinion that this is the case. However, it is conceivable that abnormalities (or, indeed, a particular sex) which are less serious might be considered as a reason for termination under ground (2).
The Law surrounding Preimplantation Genetic Diagnosis (PGD)
In the UK, PGD is regulated by a regulatory body called the Human Fertilisation and Embryology Authority (HFEA).
Since 2009, the HFEA has authorised PGD on a condition-by-condition basis; once a condition is on the approved list, any clinic licensed to carry out embryo testing can provide it to suitable patients. Where a license is sought to carry out PGD for a new (non-approved) condition, the HFEA reviews the evidence and decides, on the basis of statutory guidelines, whether to approve it.
The legal test for whether PGD for a specific disorder meets the statutory requirements is: ‘that there is a significant risk that a person with the abnormality will have or develop a serious physical or mental disability, a serious illness or any other serious medical condition’.2 While ‘seriousness’ is at the heart of the issue this does not necessarily mean ‘untreatable’. For example, PGD is approved for BRCA1/2.
PGD is only permitted for sex-selection, where there is a sex-linked disorder.3
PGD is approved for tissue typing of so-called saviour siblings, where no other donor exists. Such cases are approved on a case-by-case basis.4
This is the law in the UK, but is the law different elsewhere in the world? What is the law surrounding termination for fetal abnormalities in your country?
1 Abortion Act 1967 as amended by the Human Fertilisation and Embryology Act 1990, s1
2 Human Fertilisation and Embryology Act 2008 c.22 1ZA (2)(1)(b)
3 Human Fertilisation and Embryology Act 2008 c.22 1ZA(1)(c)
4 Human Fertilisation and Embryology Act 2008 c.22 1ZA(1)(d)
© St George’s, University of London