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Heidi Crowter and Máire Lea-Wilson have lost their landmark case against the UK Government over the current law that allows abortion up to birth for Down’s syndrome.
Heidi, a 26-year-old woman from Coventry who has Down’s syndrome, and Máire from Brentford, West London, whose two-year-old son Aidan has Down’s syndrome, challenged the UK Government over a disability clause in the current law.
Their case argued that the current law, which sets a 24-week time limit for abortion except if the baby has a disability, was discriminatory and stigmatised disabled people.
They are now seeking permission for the case to be taken onto the Court of Appeal, after the High Court announced they have rejected the legal challenge.
Heidi said: “I am really upset not to win but the fight is not over. 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….and the verdict doesn’t change how I and thousands in the Down’s syndrome community feel.
“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.”
The case was dismissed by Lord Justice Singh and Mrs Justice Lieven, who ruled that the legislation is not unlawful and aims to strike a balance between the rights of the unborn child and of women.
The judges said the issue was better debated in parliament than dealt with in litigation.
They added: “The issues which have given rise to this claim are highly sensitive and sometimes controversial. They generate strong feelings, on all sides of the debate, including sincere differences of view about ethical and religious matters. This court cannot enter into those controversies; it must decide the case only in accordance with the law.”
Under current legislation for England, Wales and Scotland, there is a 24-week time limit for abortion, unless “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 ruling stated: “There is powerful evidence before this court of families which provide a loving environment to children who are born with serious disabilities but we do not know what would happen, in a counterfactual world, in which some women have been compelled by the fear of the criminal law to give birth to children who will not be loved or wanted.”
There were 3,083 disability-selective abortions in 2020. 693 of these abortions were due to babies with Down’s syndrome, an increase of 5.64% from 656 in 2019.
It is thought that the actual figures are likely to be much higher – a 2013 review showed 886 fetuses were aborted for Down’s syndrome in England and Wales in 2010 but only 482 were reported in Department of Health records. The underreporting was confirmed by a 2014 Department of Health review.
The Disability Rights Commission (now the Equality and Human Rights Commission) has 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”.
Heidi and her legal team set up a CrowdJustice crowdfunding page to help raise funds for legal proceedings, pay for legal advice and prepare for the case.
Máire, who was placed under pressure to have an abortion when a 34-week scan revealed her son had Down’s syndrome, said: “I am a mother, and I love and value my two boys equally. Today’s High Court judgement effectively says that my two sons are not viewed as equals in the eyes of the law and I am incredibly sad and disappointed that the court has chosen not to recognise the value and worth of people with Down syndrome, like my son Aidan.
“People with Down syndrome face discrimination in all aspects of life, with the covid pandemic really shining a light on the dangerous and deadly consequences this can have. 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 that she was disappointed to see that the ruling gave very little consideration to the feelings of people with Down syndrome and how section 11d of the abortion act has a very real and painful impact on their self worth and mental health.
It also gave very little consideration to the fact that many women are pressured to abort much wanted pregnancies at such a late stage in the context of fear and misinformation which is given to them.