The High Court has thrown out a landmark challenge to the law that permits abortion up to birth of disabled children.
The case was brought by Heidi Crowter, 26, who has Down’s syndrome, and Máire Lea-Wilson, 33, the mother of a toddler with the condition.
They argued that the 1967 Abortion Act was discriminatory because there is an upper limit of 24 weeks for the abortions of able-bodied or neurotypical children.
They said the clause contravened the European Convention on Human Rights and took the Department of Health to court in July with the objective of changing the Act.
But two judges sitting in the High Court have ruled that Section 1(1)(d) of the Act was not unlawful.
Lord Justice Singh and Mrs Justice Lieven said that although some parents would “positively wish to have a child” even knowing it would be born with disabilities not all would, adding that the ability to provide for such children would “vary significantly”.
They said that amending the Act was a matter for Parliament “which can take account of different interests and viewpoints, rather than in litigation”.
Miss Crowter, from Coventry, said afterwards that she would seek permission to take the case to the Court of Appeal.
“I am really upset not to win but the fight is not over,” she said.
“The judges might not think it discriminates against me, the government might not think it discriminates against me but I am telling you that I do feel discriminated against,” she continued, “and the verdict doesn’t change how I and thousands in the Down’s syndrome community feel.”
She said: “We face discrimination every day in schools, in the work place and in society. And now thanks to this verdict the judges have upheld discrimination in the womb too. This is a very sad day but I will keep fighting.”
Miss Lea-Wilson, from London said she felt “incredibly sad and disappointed that the court has chosen not to recognise the value and worth of people with Down syndrome”, like her two-year-old son Aidan.
“This ruling condones discrimination, by cementing the belief in society that their lives are not as valuable as the lives of people without disabilities,” she added.
She continued: “I am surprised and disappointed to see that the ruling gave very little consideration to the feelings of people with Down’s syndrome and how section 1(1)(d) of the Abortion Act has a very real and painful impact on their self-worth and mental health.
“The judgement also gives very little consideration to the fact that many women, like myself, are pressured to abort much wanted pregnancies at such a late stage in the context of fear and misinformation which is given to them.
“I do not regret bringing this case, because I believe it has helped raise awareness around the wonderful lives people with Down’s syndrome and their families lead, and helped dispel some of the negative, outdated and prejudicial attitudes that are prevalent in society and the medical profession.
“As Aidan’s mother, I will continue to fight for his rights, and look to appeal this judgement, because equality should be for everyone regardless of the number of chromosomes they have.”
The claimants, who are supported by the group Don’t Screen Us Out, crowdfunded more than £100,000 to fight the case.
There were 3,083 abortions on the basis of disability recorded in England and Wales in 2020, 693 of them following a prenatal diagnosis of Down’s, an increase from 656 in 2019.
The UN Committee on the Rights of Persons with Disabilities has consistently criticised countries that provide for abortion on the basis of disability.
The Committee on the Rights of Persons with Disabilities’ concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland made a key recommendation that the UK change its abortion law so that it does not single out babies with disabilities. The Government has ignored the recommendation.
The Disability Rights Commission (now the Equality and Human Rights Commission) has also said that this aspect of the Abortion Act “is offensive to many people; it reinforces negative stereotypes of disability…[and] is incompatible with valuing disability and non-disability equally”.
Paul Conrathe, solicitor at Sinclairslaw, who is representing the two women, said: “This is a disappointing judgement that is out of step with modern attitudes to disability. As long ago as 2001, the Disability Rights Commission stated that the abortion legislation ‘is offensive to many people; it reinforces negative stereotypes of disability’.
“The judgement fails to recognise the damaging impact UK abortion legislation has upon the mental health and wellbeing of people with Down’s syndrome.
“By allowing babies with Down’s Syndrome to be aborted up to birth, unlike neurotypical babies, the law sends a powerful message that the lives of people with Down’s Syndrome are of lesser value.
“My clients will be seeking permission to appeal to the Court of Appeal.”
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