Abortions based on sex of foetus may not be illegal, court told
Having an abortion based on the sex of the foetus may not be illegal, the Court of Protection has heard.
A woman, known only as HB for legal reasons, had her request for termination denied because clinicians thought her motive was that she did not want a girl and believed this to be against the law.
Doctors were also concerned about her mental capacity and believed she may have suffered brain damage from domestic abuse, although a psychiatrist who assessed the woman said he found no evidence of her lacking capacity.
Lawyers representing Cambridge University Hospitals NHS Foundation Trust, Cambridgeshire County Council and HB said at a hearing on Tuesday that the court should no longer have jurisdiction over the woman’s care after the psychiatrist’s “compelling” evidence attesting to her ability to decide her own course of treatment.
The court may therefore not be required to decide on the legality of having a sex-based abortion, although there was still “room for doubt” about whether it could be allowed, Eloise Power, for the NHS trust, said.
HB has reached the end of the 24-week legal limit for terminating a pregnancy and must begin a procedure on Wednesday if it is to go ahead.
Ms Power said of the law: “My simple reading is that there is a genuine area of uncertainty.
“There is legitimate and well-founded concern among the clinicians about the correct interpretation.”
Clinicians were concerned about HB’s mental health and a doctor who assessed her in November and again in February said she seemed unable to retain information and kept repeating the same statements.
Giving evidence by video link, the doctor said HB’s “inability to understand” and “repeated alleged domestic violence” led her to believe she had an “anoxic brain injury”.
She added: “My concern is that at some point in her life, somebody has strangled her.
“I have never seen a patient present like this repeatedly, who has not had some sort of event happen to them.”
HB had made domestic abuse allegations about her husband but later retracted them, the court heard.
The doctor also raised concerns about HB’s mental health if the pregnancy continued, saying she likely “could not cope” if the baby was female and “could cope” if it was male.
A psychiatrist, who assessed HB on Monday, said he was “not surprised” to hear the clinician’s concerns but found “no evidence of psychosis” and “no evidence of significant mental illness” himself.
He stressed that there was a lot of uncertainty in his conclusion because his time with her was “extremely brief and relatively superficial” but believed the majority of other such professionals would agree with him.
Also giving evidence by video link, he said: “When I first read the notes, the first thing I thought was that this sounds like bipolar and that is what I was most looking for, but there was no evidence of that.”
Mrs Justice Theis said on Monday that the court was not well-placed to determine the legality of terminating a pregnancy based on sex because of the time pressure.
She said: “This hearing has not been set up to deal with a wider interpretation.
“It would need reference to all sorts of government bodies at least.”
The hearing is expected to conclude on Tuesday.
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