Tuesday, 17 October 2017

Abortion Law in Jersey: A Brief Historical Sketch

UK Statistics

Last night, BBC2 had a documentary debate on abortion, "Abortion the Trial" which still remains a controversial subject. I thought it might be helpful to piece together the changes in Jersey law regarding abortion, and set them out below.

I have no idea what happened before the abortion law was introduced in Jersey, but I suspect abortions took place off Island. The 1993 debate mentions that the law "clarify and amend the existing customary law on abortion" which suggests some kind of law was in place. A newpaper report of 1995 (The Independent) reports a Guernsey resident saying: "I had to go to Brighton for the abortion. There were three other girls from Jersey and Guernsey there at the same time.

Abortion Law in Jersey: A Brief Historical Sketch

In 1993, the President of the Public Health Committee said that:

“Members will recall that the Public Health Committee, in its Five Year Policy Report which was approved by this House on 25th August last year, stated that it intended to present to the States a discussion paper to open up public debate on the implications of introducing an abortion law in Jersey, having regard to the fact that over 300 Jersey residents obtained abortions in England each year.”

A report was presented later that year, and the first steps towards change in abortion law came in 1994, where the States voted by 36 to 14 for an Abortion Law Reform proposition. The Minutes say that:

THE STATES, adopting the proposition, as amended -

(1) agreed, in principle, to enact a Law on Abortion which would - (a) clarify and amend the existing customary law on abortion to permit the termination of pregnancy within statutorily defined circumstances by registered medical practitioners;

(b) legalise the termination of pregnancy without limit of time when two approved registered medical practitioners are of the opinion, formed in good faith, that the termination is immediately necessary to save the life, or to prevent grave permanent injury to the physical or mental health, of the pregnant woman;

(c) legalise the termination of pregnancy before the end of the 24th week of gestation when in the opinion of two approved registered medical practitioners there exists, at the time of diagnosis, a substantial risk that the foetus will suffer from a grave abnormality;

(d) legalise the termination of pregnancy before the end of the 10th week of gestation when, in the sole opinion of the pregnant woman, her condition causes her distress and she is ordinarily resident in the Island or has been continuously resident in the Island for a minimum period of three calendar months immediately preceding the date of termination of the pregnancy;

(e) make statutory provision for any person to refuse to participate in treatment authorised by either or both of sub-paragraphs (c) and (d) if that person has a conscientious objection thereto;

(f) make statutory provision for subordinate legislation to be enacted to provide for -

(i) control to be exercised over registered medical practitioners approved for the purpose of offering treatment for the termination of pregnancy;
(ii) the licensing of counsellors;
(iii) the licensing of premises wh ere treatment for the termination of pregnancy may be carried out;
(iv) control of any charges which may be authorised at or by public or licensed private establishments or approved registered medical practitioners for the provision of treatment for the termination of pregnancy;
(v) the formal notification of all pregnancy terminations without identification of the woman;

However, nothing seems to have happened until 1997, when the law was revised with the Termination of Pregnancy (Jersey) Law 1997:

This gave firm grounds for termination of a pregnancy:

1. Article 2(1) – being that the termination is immediately necessary to save the life of the women.

2. Article 2(2)(a) – being that the termination is necessary to save the life of the women or to prevent grave permanent injury to her physical or mental health.

3. Article 2(2)(c) – being that the woman’s condition causes her distress, that the woman fulfils the residency requirements in the 1997 Law, that the pregnancy has not exceeded its12th week and that the requirements for consultation in the 1997 Law have been complied with.

In that same year, Deputy Alastair John Layzell of St. Brelade asked the Connétable of St. Saviour, Jack Roche, President of the Health and Social Services Committee, citing an article in the Jersey Law Review, whether “there is effectively abortion on demand in Jersey?”

This elicited the following points in reply:

“Terminating a pregnancy is a medical procedure, and as such is subject to the same checks and controls as any other medical procedure.A doctor will only carry out a termination if, after full discussion and appropriate counselling, he considers it is in the best interests of his patient. The Law does not override the professional and ethical duties of the medical practitioner. No doctor is obliged by the Law or by my Committee to carry out a termination of pregnancy.”

“In 1995, 67 terminations of pregnancy were carried out in the General Hospital and in 1996, 90 terminations were carried out in the General Hospital.”

“If I may, sir, I would refer members to the opinion of the then Attorney General which I quoted at that time. In simple terms, an abortion was permissible if carried out in good faith to save the life of the mother or when the continuance of the pregnancy would make the woman a physical or mental wreck. I am advised the terminations that took place in 1995 and 1996 were carried out on those grounds.”

In June 2003 the Island's Ethics Committee considered a paper presented by consultant obstetrician and gynaecologist Neil MacLachlan on the subject and agreed that the law as currently drawn was "ethically unacceptable".

In 2004, in answer to a question by Deputy David Crespel, the following information was given.

"Young women under the age of 16 are given termination related advice and treatment in accordance with the Termination of Pregnancy (Jersey) Law 1997."

"There are no age restrictions, if the girl is competent and able to understand the implications of the procedure – in other words, is ‘Gillick-competent’, as outlined above. No termination has been carried out in Jersey on young women under the age of 14 years since 1997 when the Termination of Pregnancy (Jersey) Law 1997 came into force."

"(c) Article 3 of the Termination of Pregnancy (Jersey) Law 1997 states that the medical practitioner must provide written information about the counselling services available. (This is not a pre-requisite in the UK.) All women attending for termination are offered the opportunity to see a counsellor at the outpatients clinic, and are offered counselling after the (termination) surgery if they so wish. For young women under the age of 16 counselling is mandatory."

"In Jersey terminations are only available, under normal conditions, until the 12th week of pregnancy."

"In extreme cases, when continuing with the pregnancy puts the mother’s life in danger or there’s serious foetal abnormality, islanders can have the procedure up until 24 weeks."

A revision to the law in 2005 brought by Minister of Health Stuart Syvret addressed some of these deficiencies. It noted that:

“The Committee deems it reasonable for a pregnant woman and her family to wish to avoid having a child with a serious handicap. In most other jurisdictions in the developed world, the termination of pregnancy for a serious handicap is lawful. In these other jurisdictions it is the pregnant woman with her family who – with guidance and counselling – has the right to choose whether to terminate the pregnancy or not. To use the legal test of ‘an exceedingly poor quality of life’ is deemed by the Committee to be impracticable and unworkable when one has to draw the line as to what is reasonable, what is ethical, and what is lawful. “

“However, it is important to state that in articulating these matters it does not follow that people with such disabilities should not be respected nor does it follow that people with these disabilities lead lives of diminished value or worth. Some women will be content to continue with their pregnancy notwithstanding an adverse diagnosis. That is their choice. It is contended here that it is that choice – the pregnant woman’s choice – which should determine what must happen if her foetus is diagnosed as having a serious handicap.”

The position at that point was to shunt part of the problem across to the UK and Senator Syvret's amendment changed that.

“Put plainly, women who are at high risk of or are diagnosed as carrying a foetus with a serious handicap have their pregnancies terminated in other jurisdictions if they are more than 12 weeks into their pregnancy. Those who have the personal means to pay privately can, and do, travel abroad."

"Faced with the prospect of a two-tier service – in other words, a service for those who can afford to pay for their own travel and treatment, and no service for those who cannot afford to pay – the Department of Health and Social Services makes funds available to those who lack their own means to be able to travel elsewhere. This simply cannot be the right way of managing the termination of pregnancy for the women of Jersey.”

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