Woman with Down's syndrome loses appeal against law allowing the abortion of babies with the condition up until birth

25 November 2022, 15:36 | Updated: 25 November 2022, 15:45

A woman with Down’s syndrome has lost a legal challenge over legislation allowing the abortion of babies with the condition up until birth.

Heidi Crowter, 27, brought legal action against the Department of Health and Social Care, hoping to remove a section of the Abortion act.

Together with Maire Lea-Wilson, whose son Aidan has Down’s syndrome, Ms Crowther sought a declaration that part of the Abortion Act 1990 is incompatible with the European Convention on Human Rights.

They lost a High Court challenge in September 2021, and today Court of Appeal judges upheld the decision.

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“The question of whether, and if so in what circumstances, it should be lawful to abort a viable foetus on the basis that it will or may be born with a serious disability is one of great sensitivity and difficulty”, said Lord Justice Underhill in the ruling.

“But it is a question which is for Parliament, and not the Courts, to decide.

“The only question for us is whether the way that it was decided in 1990 involves a breach of the Convention rights of the Appellants as people born with such a disability. For the reasons given I do not believe that it does.”

Speaking outside court, Ms Crowter, from Coventry, said she would take her case to the Supreme Court.

She said: “I am very upset not to win again, but I will keep on fighting because we have already informed and changed hearts and minds and changed people’s opinions about the law”.

“I am very upset that babies with Down’s Syndrome can be aborted up to birth.

“This tells me that I am not valued and of much less value than a person without Down’s Syndrome.

“I am angry that the judges say that my feelings don’t matter. That makes me feel that I am not as valuable as a person without Down’s Syndrome.

“When we first started this court case not many people knew about the law, but now many, many people know about the law thanks to us and your amazing support.

“We want to thank everyone who has donated their time and money to our court case.”

In England, Wales and Scotland, there is a 24-week time limit on having an abortion.

However, the law allows terminations up until birth 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” which includes Down's syndrome.

Jason Coppell KC, the barrister for Ms Crowter and Ms Lea-Wilson said the legislation “stereotype(s) life as a disabled, or seriously handicapped, person as not worth living and certainly as having less value than life as an able-bodied person, thereby impacting on the feelings of self-worth and self-confidence of disabled persons”.

They argued the law interferes with the rights of disabled people to a private and family life, which is protected under the Human Rights Act 1998.

Lord Justice Underhill said the argument is “understandable”, but pointed out that others could have a different view on the issue.

“Others draw a clear line at the moment of birth and deny that permitting the abortion of a foetus with a serious disability implies anything about the value of the lives of the living disabled”, he said.

“That point was made explicitly, and with evident sincerity, by those promoting or defending (the law) in the Parliamentary debates.”

In a published summary of their decision, the judges said: “The court recognises that many people with Down’s syndrome and other disabilities will be upset and offended by the fact that a diagnosis of serious disability during pregnancy is treated by the law as a justification for termination, and that they may regard it as implying that their own lives are of lesser value.

“But it holds that a perception that that is what the law implies is not by itself enough to give rise to an interference with Article 8 rights (to private and family life, enshrined in the European Convention on Human Rights).”