Durham Law School

Foetal Protection Laws: A Dangerous Future for British Women

In this briefing, Dr Milne explains the dangers of foetal protection laws, and why key pieces of British legislation must be repealed to protect foetuses and babies as well as women.

Across Great Britain, foetuses have limited legal protection. The criminal offence of child destruction makes it a crime to intentionally end the life of a “child capable of being born alive”. Durham University research indicates that two other offences – procuring a miscarriage and concealment of birth – are also being applied to cases where it is suspected that a woman has “killed” her foetus. These three offences are being used as proxies for foetal homicide laws. Application of these offences indicates a misuse of the criminal law. The result is injustices for accused women, particularly those who are vulnerable and experiencing “crisis pregnancies”.

Evidence from the United States of America, where foetal protection laws have been implemented in most states, indicates that criminalising women for conduct during pregnancy has had disastrous outcomes for foetuses and babies as well as women.

There are understandable reasons why the criminal law should protect pregnant women and their unborn babies from harm, and punish third parties who attack women, while pregnant, resulting in the stillbirth of the baby. Pregnancy is a period when violence by a male current or former partner may begin or escalate. It is not necessary to create foetal homicide offences to offer protection to pregnant women and their unborn children. Instead, the creation of a specific aggravating factor for sentencing – knowledge of a pregnancy and hostility to the victim because she is pregnant – could result in the perpetrator’s assault being considered more serious.

We recommend:

the Infant Life (Preservation) Act 1929 is repealed to remove the offence of child destruction.
sections 58 and 59 of the Offences Against the Person Act 1861 are repealed to remove abortion from the criminal law.
section 60 of the Offences Against the Person Act 1861 is repealed to remove the offence of concealment of birth from the criminal law.
introducing a new mitigating factor into the Sentencing Guidelines to recognise the further harm to women who are attacked by third parties while pregnant, resulting in the stillbirth of their babies.