Divisional Court: Singh LJ and Leiven J , [2021] EWHC 2536 (Admin), 182 BMLR 1, 23 September 2021

This was an unsuccessful challenge based on numerous human rights grounds of the fact that the Abortion Act 1967 s1(1)(d) permits abortion at a later stage of foetuses if 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”. The claimants (persons with and the mother of a person with Down’s Syndrome) argued that it was impermissible to distinguish between pregnancies where there was a substantial risk that, if born, a child would be “seriously handicapped”, and those pregnancies where the risk of such “handicap” was smaller. They sought to rely on Articles 2, 3, 8 and 14 ECHR. The first of these failed on the grounds that the ECHR had never decided that a foetus was the bearer of Convention rights and had ruled in RR v Poland (2011) 53 EHRR 1047 that the decision whether or not to continue with a pregnancy fell within the scope of Article 8. They will not be further considered here. Of more direct relevance to this blog are the Article 14 arguments which the Court considered in some detail despite having found that the discrimination in issue did not in fact fall within the scope of Article 8. Continue reading →