Abortion leglislation covering disability is blatantly discriminatory - Dr Calum MacKellar

A challenge to existing abortion legislation for disability, which may have consequences for Scotland, has been brought to the High Court of England and Wales by two women, Heidi Crowter who has Down syndrome and Máire Lea-Wilson who has a small son with the same condition. They both believe a clear case of discrimination exists with the updated Abortion Act 1967.

Dr. Calum MacKellar, Director of Research of the Scottish Council on Human Bioethics.

This enables a termination up until birth if the foetus has a disorder even when the procedure is not necessary to prevent grave injury to the pregnant woman, or to save her life, but restricts abortions to 24 weeks if the foetus has no disability. In other words, a non-disabled foetus is better protected in law from being terminated, meaning that it can also be seen as having more value and worth, than a foetus with a disorder.

The two women argue that the possibility to deselect, through abortions, foetuses with a congenital disability up until birth is an outward expression (a revelation) of a blatant discriminatory and ableist attitude in society. In a way, it would be similar to the situation where a female foetus could be aborted, just because of its sex, in a sexist society. Or even that a black foetus could be aborted, just because of its skin colour, because racist values in a society are not being challenged. Indeed, all such abortions would be incompatible with the absolute equality in value and worth of all human beings which is the very basis of a civilised and inclusive society. In other words, if all persons who actually exist, as well as all future possible persons, are considered to be absolutely equal in value and worth, meaning that they are all equally desirable, then there are no grounds for de-selective abortions, if no extenuating circumstances exist.

Moreover, the current abortion legislation may give a real negative message to persons with a condition, such as a disability, who already exist – the message that it would have been preferable had they not been born. For example, Ms. Crowter indicated that the current law is unfair while making her feel like she should not exist. And just stating that she is misguided or mistaken about the negative message she receives about herself in this way is simply unacceptable. The distress is very real. About ninety per cent of foetuses diagnosed with Down syndrome are terminated in the UK.

If the two women lose their legal case, and it became acceptable in law to believe that people, such as Ms. Crowter, should not be born, nor be offended by the message they receive from such a statement, this would have significant ethical consequences in society. Interestingly, Ms. Crowter could then legitimately respond by indicating that the judges in the High Court, who seemingly were born with an inability to understand her argument, should also not have existed nor be offended with the message they receive from such a statement. In fact, it would be possible for anyone in society to openly indicate that any other individual, for whatever inborn reason, should not have been brought into existence. Such an outcome, however, would seriously undermine the very fabric of civilised society.

Dr Calum MacKellar, Director of Research, Scottish Council on Human Bioethics