Abortion Laws In Scotland: Understanding The Legal Landscape

Abortion law in Scotland is a complex area, with a mix of civil and criminal legislation governing the matter. The Abortion Act of 1967 sets out the criteria for lawful abortion, but it did not decriminalise the procedure. Instead, it established conditions under which a patient could not be prosecuted. These include having two doctors' signatures confirming that continuing the pregnancy would cause severe physical or mental harm to the pregnant person. However, abortion remains a criminal offence under the Offences Against the Person Act of 1861, which can be punishable by life imprisonment. While abortion is permitted up to 23 weeks and 6 days of pregnancy in England, Scotland, and Wales, the specific criteria outlined in the Abortion Act must be met.

The Abortion Act 1967

The Act amended and clarified the law relating to the termination of pregnancy by registered medical practitioners. It states that a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith, 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.

The Act also outlines the conditions under which a pregnancy can be terminated, including if there is a substantial risk to the life of the pregnant woman, a risk of grave permanent injury to the physical or mental health of the pregnant woman, or a substantial risk that the child would suffer from physical or mental abnormalities if born.

Since 1967, members of Parliament have introduced several private member's bills to change the abortion law, but none have been successful.

The Offences Against the Person Act 1861

The Act consolidated provisions related to offences against the person (an expression which, in particular, includes offences of violence) from a number of earlier statutes into a single Act. It created two offences in relation to abortion:

Section 58: Administering drugs or using instruments to procure abortion

Section 58 of the Act makes it a felony for any woman, "being with child", to unlawfully administer to herself any poison or other noxious thing, or to unlawfully use any instrument or other means with the intent to procure her own miscarriage. It also makes it a felony for any person to unlawfully administer or cause to be taken by a woman any poison or other noxious thing, or to unlawfully use any instrument or other means with the intent to procure the miscarriage of any woman, whether she is or is not with child. The penalty for an offence under this section is imprisonment for life or any shorter term.

Section 59: Procuring drugs, etc. to cause abortion

Section 59 of the Act makes it a misdemeanour for any person to unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with the intent to procure the miscarriage of any woman, whether she is or is not with child. The penalty for an offence under this section is imprisonment for a term not exceeding five years.

In Scotland, abortion became an offence with the passing of the Abortion Act 1967, which refers to "any rule of law relating to the procurement of abortion". Prior to 1967, there was no offence of abortion in Scotland per se; however, if harm occurred consequent to an abortion, various offences could have applied with abortion forming part of the description of the elements forming the offence on the petition or indictment presented to a court.

The Scotland Act 1998

The 1967 Act also makes provision for the approval of places where terminations of pregnancies may lawfully be carried out and for the making of regulations to require certification and notification of doctors' opinions before a termination is carried out.

While the Scottish Parliament can now legislate to modify provisions of Scots private law that affect abortion, it cannot legislate to alter the criminal law relating to abortion in Scotland or provisions in the 1967 Act.

The Infant Life (Preservation) Act 1929

The Act amended Section 58 of the Offences against the Person Act 1861, stating that abortions and child destruction carried out in good faith for the sole purpose of preserving the life of the mother were no longer an offence. The Act also notes that abortions performed under the terms of the 1967 Abortion Act are not offences under the 1929 Act.

The Act states that evidence that a woman had been pregnant for 28 weeks or more shall be prima facie proof that she was pregnant with a child capable of being born alive. This presumption can be rebutted if it is proven that the act that caused the death of the child was done in good faith for the purpose of preserving the life of the mother.

The Act makes it a felony, punishable by life imprisonment, to destroy the life of a child capable of being born alive. The Act also provides for the prosecution of offences, including murder, manslaughter, infanticide, and the administration of drugs or use of instruments to procure abortion.

The Act was the subject of a debate in the House of Lords in 1987, where it was proposed to amend the Act to reduce the gestational age after which a fetus is considered viable from 28 to 24 weeks. The amendment was ultimately defeated, with the government at the time opting to continue enforcing the existing law through administrative measures rather than legislative changes.

The Human Fertilisation and Embryology Act 1990

The Act stipulates legal definitions for a variety of natural language terms, including "embryo", "gamete", "mother", and "father", to clarify matters of legal and social standing and inheritance. For example, an embryo is defined as "a live human embryo where fertilisation is complete, and (b) references to an embryo include an egg in the process of fertilisation, and for this purpose, fertilisation is not complete until the appearance of a two-cell zygote".

The Act also deals with the concept of consent in Schedule 3 for all participants in assisted reproductive technologies.

The Human Fertilisation and Embryology Act amended the Abortion Act of 1967. It introduced new grounds for abortion, including:

• Risk to the life of the pregnant woman;
• Preventing grave permanent injury to her physical or mental health;
• Risk of injury to the physical or mental health of the pregnant woman or any existing children of her family (up to a term limit of 24 weeks of gestation); or
• Substantial risk that, if the child were born, they would "suffer from such physical or mental abnormalities as to be seriously handicapped".

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