Review of Abortion Law in Scotland Expert Group: report

5. Gestational Limits and Grounds

The Expert Group made an early decision that the complex and sensitive topics of upper gestational limits and grounds for abortion could not be considered in isolation from each other, and several meetings were subsequently devoted to considering them together.

The Group began by considering the current law and evaluating the extent to which it aligned with their overarching principles, relevant human rights standards, and robust international evidence regarding safety and best clinical practice. In addition to the views and evidence provided by the Advisory Group of reproductive rights, women’s and equalities groups, the Group received 22 submissions on these topics, each of which was considered carefully. It was clear from these submissions that the issues of time limits and grounds were of great significance for many stakeholders. Further evidence was provided by Group members with experience of providing abortion and undertaking research in Scotland, offering insights into patient and provider perspectives, including the lived experience of people requesting abortion.

The Group considered several models for reform that had been implemented internationally. These were selected on the basis of deliberation within the Group, drawing on its own expertise, the advice of the Advisory Group, and suggestions in submissions made by stakeholders. The Group agreed to focus in particular on New Zealand and several Australian states – where laws have recently been modernised to, broadly speaking, reframe abortion as an issue of healthcare rather than criminal law. These jurisdictions recently moved away from provisions originally modelled closely on UK laws following a process of detailed consideration and consultation, with extensive relevant review documentation thus available. As the only UK country recently to have modernised its law, Northern Ireland was also considered in detail. Some European countries were also considered on the basis of stakeholder recommendations, which are provided in further detail within Annex B of this report.

5.1 Review of the Current Law

Section 1(1)(a) of the Act permits two doctors to authorise the termination of a pregnancy if it has not exceeded its 24^th week (23 weeks and 6 days)^[49] and if the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or her existing children. Since 1967, there has been a general trend towards a more liberal interpretation of Ground C and D^[50] and the overwhelming majority of abortions in Scotland (more than 98%) are authorised on these grounds. While Ground C and D abortions are subject to a 24-week limit, most take place far earlier in pregnancy. In 2024, over 93% of abortions in Scotland were performed below 12 weeks’ gestation, and over 99% took place before 20 weeks.^[51] The rollout of EMAH has facilitated very early abortion, with 18% performed before 6 weeks in 2024. A far smaller number of abortions are undertaken on the basis of Grounds A, B, E, F and G, where no upper gestational age limit applies. The majority of these are authorised under Ground E, with 280 cases in 2024 (Ground E refers to abortions performed because of fetal abnormality at any gestation). In Scotland in 2024, only 14 abortions occurred after 24 weeks (0.1% of the total), all 14 of these on the basis of Ground E.

The clinicians on the Group offered some insight into their experience of the Ground C and D patients who seek to access care at later gestations. The Group noted that there are very few abortions between 20-24 weeks gestation, with these patients tending to be particularly vulnerable with complex needs and having very strong indications that continuing the pregnancy would seriously impact their current or future mental health. The British Pregnancy Advisory Service (BPAS), Back Off Scotland, and Antenatal Results and Choices (ARC) supplied case studies of women requiring abortion care between 20 and 24 weeks. These included girls under the age of 16, young people in honour-based abuse situations and women with incapacity. BPAS provided case studies of some recent women treated over 20 weeks gestation, which include:

• A 16-year-old girl who found out she was pregnant at 23 weeks. Her family were anti-abortion so she had to ask her boyfriend’s mother to take her to London for treatment at a BPAS clinic. She says that the ‘fear and shame’ she suffered at that time made her contemplate suicide to escape the situation.
• A woman with addiction issues found out she was pregnant beyond 20 weeks. She was experiencing very poor mental health, complex addiction issues, and was struggling to leave her home. The woman had no support available from family or friends, and her ex-partner was on remand awaiting trial at the time of appointment.
• A woman who had recently received a long-term prison sentence made the decision not to continue her pregnancy which was over 20 weeks’ at the time.

Drawing on experience and expertise within the Group and the input of the Advisory Group, the Group also discussed a range of problems regarding the implementation of current law. It was noted that meeting the formal requirements of the law, particularly the requirement for two doctors to sign-off an abortion, can contribute to delay with barriers to access likely to be experienced particularly by those living in rural communities.

A further concern was noted regarding those who present over the current legal limit for abortion, as there is currently no established pathway for them to access Ground A or ground B abortions where continuing the pregnancy poses a significant risk of grave permanent injury to their health, or to their life. Although these are primarily provision failings rather than legal concerns, the Group considered that the current wording of Ground A and B within the law may not be fit for purpose, and that that any law must account not only for abortions currently provided in Scotland, but for the full breadth of need for abortion care in Scotland in line with the law, even where those women are currently treated further afield.

The current law was also widely felt to be out of line with the developments in clinical practice that had occurred since the late 1960s, when it was introduced.^[52] It was also considered out of line with public opinion, with 76% of British adults believing that abortion should be allowed if a woman decides on her own she does not wish to have a child.^[53],[54] Internationally, 51 countries and 33 further jurisdictions permit abortion on a woman’s request with no requirement for justification.^[55] The grounds-based approach means that pregnant women need to justify their decision to access abortion care, in a way that patients do not need to do in other areas of medical practice. This is highly anomalous in light of the respect for patient autonomy that is a guiding principle in modern clinical practice,^[56] which is widely recognised in clinical guidance. In the landmark Supreme Court decision in Montgomery (itself a Scottish case involving a pregnant woman’s rights to make medical treatment decisions), Lords Kerr and Reed described a movement away ‘‘from a model of the relationship between the doctor and the patient based upon medical paternalism” towards an approach that:

“treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.”^[57]

It is difficult to reconcile current abortion law with this more general approach to healthcare law.

However, some clinicians in the Group described finding value in a statutory ground in those rare cases where abortion care is sought at gestations beyond the 24 week limit, explaining that they can provide a useful template to support discussion with a patient and encourage uniformity in service provision over 24 weeks, contributing to equality of abortion access across Scotland.

5.2 Gestational Limits

5.2.1 International examples

The Group’s review of the upper gestational time limit for abortion was aided by close consideration of a number of other jurisdictions (see Annex B). It noted wide variation on this issue, ranging from a small number of jurisdictions that have no time limits for abortion (including Canada, the Australian Capital Territory, and several US states), a 24 week upper limit in the Netherlands, 23 weeks in South Australia and Western Australia, 20 weeks in New Zealand, 18 weeks in Sweden, 16 weeks in France, 12 weeks in the Republic of Ireland, Germany and Italy, and a mixed model using both 12 and 24 week limits in Northern Ireland. The Group noted that it can be misleading to consider gestational limits in the abstract and that the laws in these countries vary significantly in many respects. All make some provision for abortion, in more or less restricted circumstances, after the stated limit, and in all cases access to abortion is impacted by a range of other factors.

The Group also benefited from the input from a number of experts who brought experience of other jurisdictions. One common theme was that removing legal barriers to abortion care can help to facilitate access to services but is not enough on its own to deliver accessible, high-quality services. For example, the Australian Capital Territory has no gestational limits for legal abortion, however access to abortion services above 13 weeks gestation is limited. A further important example is provided by Canada, where abortion has been legal since 1988, when the Supreme Court decided in R. v. Morgentaler that a law that criminalised abortion in certain circumstances was unconstitutional.^[58] This left Canada with no specific statutory framework for abortion, with abortion services subject to the same provincial healthcare regulatory rules and guidelines for physicians as other health procedures. This means that there are no specific grounds for abortion at any gestation, with decision making left to the patient and provider. However, almost four decades on, no province offers abortion on request beyond 24 weeks, some provinces only provide services up to 12 weeks, and medication for Early Medical Abortion was not approved until 2015.

5.2.2 Stakeholder views and evidence

While stakeholder submissions presented a wide range of perspectives on the appropriateness of the current 24-week gestational limit for abortion in Scotland, their views fell into three broad categories: those arguing that there was no need for an upper gestational limit, those arguing for a lower gestational limit (typically either 22, 20 or 12 weeks), and those arguing to retain the existing 24 week limit.

No gestational limit

Some stakeholders questioned the need for any upper gestational limit. Members of the Advisory Group of women’s and reproductive health groups pointed to international examples of jurisdictions with no upper gestational limit. They further noted that:

• Gestational limits may create barriers to services that impact on the most vulnerable women, including disabled women, migrant women and young women, who may be deterred from accessing necessary healthcare. For example, disabled or young women may not realise they are pregnant until later or have less capacity for earlier decision making.
• Gestational age limits remove control over women’s health and fertility from the woman and her medical team and place it in the hands of political decision-makers who are not best-placed to determine an individual woman’s needs
• The WHO recommends against laws and other regulations that prohibit abortion based on gestational age limits
• The need for access to abortion at later gestations remains for small numbers of women, regardless of the law.
• Full decriminalisation of abortion and removal of time limits does not amount to deregulation. Abortion can be effectively regulated in other ways that ensure high standards of safe, high-quality care, which is better aligned with the goal of treating abortion as a matter of healthcare.
• There are other jurisdictions where no upper time limit exists and where abortion is provided safely and effectively, with no evidence of an increase in abortions or later abortions. While the abortion rate is not a concern for the Expert Group, as something that is impacted by numerous social and economic factors, it is a point of interest that speaks to concerns from some stakeholders. Canada, discussed further below, was cited as a particularly important international example here.

A submission from seven women’s equality organisations^[59] in Scotland emphasised the WHO position, which they suggested in line with the Group’s remit to make abortion a healthcare matter and to empower women to make decisions for themselves. The WHO advocate against gestational time limits on grounds that they are associated with poor health outcomes, can cause delays to accessing abortion, have disproportionate impacts for learning disabled women, younger women, those in rural areas, women facing financial hardship and those with lower educational attainment, and are incompatible with requirements in international human rights law ”to make abortion available when carrying a pregnancy to term would cause the woman substantial pain or suffering, regardless of pregnancy viability”.^[60]

It was also suggested that time limits for abortion contribute to abortion stigma and women’s health inequalities. The statutory thresholds for gestational time limits ensure that ideological debates over women’s bodies, the morality of abortion, and what is politically permissible are cyclically aired in parliament and the media.

Violence against women organisations argued that legal restrictions on time limits can have devastating impacts for women being coerced into keeping an unwanted pregnancy or prevented from accessing a timely abortion by an abusive partner. Survivors of sexual violence may not be aware of their pregnancy, experience clinical denial, or be unable to access abortion within the current gestational framework due to trauma. This may be particularly relevant for younger women, disabled women, women from certain cultural and faith backgrounds, LGBT people and women in rural or island areas.

A reduced gestational limit

A number of submissions – coming particularly from faith-based and Pro-Life groups – argued that the current 24-week time limit should be reduced. These submissions frequently raised ethical concerns about the morality of abortion and the moral status of the fetus, sometimes equating later abortion with infanticide. While the moral status of the fetus fell outwith the scope of the review, these submissions also voiced a number of opinions that fell within its terms of reference.

• Several submissions presented data showing that the risk of complications, including maternal mortality, increases significantly with gestational age. On this basis, they argued that high gestational limits can incentivise later abortions and thus expose women to greater health risks.
• The 24-week threshold, which is based on viability, was argued to have been overtaken by improvements in perinatal medicine and neonatal intensive care, with the result that some very premature babies born before 24 weeks gestation now survive. Some stakeholders cited the British Association of Perinatal Medicine (BAPM) Framework on Extreme Preterm Birth (2019)^[61] reports that, with intensive medical treatment, survival rates of the babies that are well enough to receive treatment are approximately 30% at 22 weeks, 40% at 23 weeks, and 80% at 26 weeks. On this basis, a reduction in the upper time limit to 20 or 22 weeks was argued to be overdue. It should be noted, however, that on seeking evidence from the British Association of Perinatal Medicine, the Group was provided with information based on their latest cohort study which highlighted that these figures were skewed towards those babies already most likely to survive. Their data found that for women who went into labour between 22+0 and 22+6 weeks, only 5% of babies survived to discharge from neonatal care.^[62]
• Recent advances in neuroscience and fetal imaging were cited in support of the claim that fetuses may be capable of experiencing pain from as early as 12 weeks’ gestation. It was claimed that this supported a more radical reduction in the upper time limit to 12 weeks.^[63] It should be noted, however, that the most recent review of evidence around fetal awareness from the Royal College of Obstetricians and Gynaecologists found that “the possibility of pain perception before 28 weeks is unlikely”.^[64]
• It was also suggested that a 12-week limit would better align Scotland with some other European countries, which have this legal limit.

Several stakeholders also raised arguments regarding the perceived inequity of allowing termination beyond 24 on the basis of a prenatal diagnosis of fetal anomaly, these arguments are considered below within the section on Grounds.

Retention of a 24-week limit

Finally, some submissions argued in favour of retaining the current 24-week upper gestational limit for most abortions. These submissions suggested that:

• The 24-week limit reflects a long-established and workable balance between competing interests, which is well embedded in existing clinical practice. Later abortions are very rare and typically involve extremely complex or distressing cases, including serious fetal anomalies or significant changes in maternal health or dire social circumstances.
• The 24-week limit continues to reflect the best available scientific evidence on viability. While survival at 22 weeks is possible, it remains rare and is often accompanied by very severe, life-restricting impairments.
• Diagnostic procedures including detailed anomaly scans and genetic testing often cannot be completed until the second trimester, and results may not be available until close to the 24-week mark. Reducing the limit would disproportionately affect women facing these challenges and could result in rushed decision-making before all test results are available.
• The Group received a submission from Antenatal Results and Choices (ARC), a group with significant experience of supporting patients grappling with the results of prenatal tests. ARC advised that “many structural issues will be detected at the 18- 20⁺⁶ scan and will result in referrals for follow up testing. Results from genetic testing can take more than two weeks to be reported which means many will be close to the current 24-week deadline for most abortions. While Ground E currently allows for terminations to extend into the third trimester, doctors vary in their interpretation of the criteria of the ground and become much more cautious after 24 weeks. This means 24 weeks can act as a ‘line in the sand’ in many circumstances where what has been diagnosed is survivable or of uncertain prognosis… Any encroachment on the existing time limit will have a detrimental effect within the context of prenatal diagnosis. Therefore, if the recommendation is to retain time limits, ARC would strongly support retaining 24 weeks.”^[65]
• Reducing the upper gestational limit would also disproportionately affect vulnerable women, including those experiencing domestic abuse, mental health crises, or late recognition of pregnancy.

The introduction of a 24-week gestation limit onto the face of the Abortion Act had been motivated in part by a Royal College of Obstetricians and Gynaecologists (RCOG) working party report on neonatal survival rates^[66]. While arguments for the reduction of the 24-week limit frequently cite further advances in neonatal care, this is not well supported by the clinical data. A very large US study has recently reported on the short-term survival outcomes of 124,345 infants born at or below 24 weeks gestation in the USA.^[67] It found that survival rates for infants born before 24 weeks (47,295) and having completed 24 weeks (77,050) were 15.4% and 71.6%. A limitation of the study is that long-term outcomes are unknown. Further data from the British Association of Perinatal Medicine (BAPM) Framework on Extreme Preterm Birth (2019), reports that with intensive medical treatment, survival rates of the babies well enough to receive treatment are approximately 30% at 22 weeks, 40% at 23 weeks, and 80% at 26 weeks. However, the Framework also cites the extremely high risk of death or severe morbidity of neonates born before 24 weeks, even with the best available care. For this reason, the British Maternal & Fetal Medicine Society (BMFMS) has opposed a reduction in the upper time limit to 22 weeks, noting that although survival rates have improved since 1990, the majority of babies born before 24 weeks either do not survive or experience major morbidity, including severe disabilities requiring life-long care.

The Group acknowledged that the risks associated with abortion increase at later gestations. However, no evidence was found that increasing the upper gestational limit for abortion incentivises later presentation and abortion procedures. Canada – which currently has no upper gestational limit – currently has a lower abortion rate than Scotland.^[68] Further, the evidence of the roll out of EMAH suggests that the most effective way to increase the proportion of abortions that occur at earlier gestations is to remove barriers to safe, effective services in pregnancy.

The Group also carefully considered the available evidence regarding the likelihood of perception of pain before 28 weeks gestation, noting significant disagreement in the scientific literature. It noted that while reflexive responses to stimuli may be observed earlier, these do not necessarily indicate conscious awareness or the experience of pain. The development of the key neurological processes in the capacity for pain perception typically occur after 28 weeks. The recent RCOG Fetal Evidence Review (December 2022) reviewed the literature from 2010 to assess whether developments in understanding of fetal awareness and pain should impact on clinical practice. The review concluded that the possibility of pain perception before 28 weeks is unlikely and therefore there is no basis for considering administration of analgesia or anaesthesia to a fetus before termination of pregnancy in the first or second trimester to prevent fetal perception of pain.^[69]

Finally, while keen to learn from the experience of other countries, the Group did not accept consistency with the laws of other countries – for example, to align Scotland with a European or broader international norm – as an end in and of itself. Firstly, it is difficult to discern a meaningful ‘norm’ given the enormous variation that exists regarding gestational time limits in different national contexts. Secondly, the Group noted that the sensitivities of abortion have often translated into a reluctance to legislate on abortion, meaning that many abortion laws are – like those of Britain – very old. Nonetheless, Europe has been steadily following a wider international trend towards liberalisation of abortion laws, with 11 European states moving to permit abortion on request since 1994.^[70] Thirdly and most importantly, in line with its terms of reference, rather than seeking to align Scots law with those of other countries, the Group understood its remit as making recommendations that would establish Scotland as a world leader, with robust, proportionate and effective abortion laws that are capable of supporting the world-class healthcare services that women in Scotland deserve.

5.3 Grounds

5.3.1 International Examples

The Group’s review of the appropriate grounds for abortion was aided by close consideration of a range of other jurisdictions. It noted that there is wide variation on this issue, ranging from virtually no provision for legal abortion to abortion on request, often within specific time limits.^[71] In line with its terms of reference and overarching principles, the Group focused on those jurisdictions that frame abortion as an issue of healthcare rather than criminal law, allowing abortion on request at least within particular time limits. This is the case in some European countries, the Australian states, New Zealand, and in Northern Ireland. Where an upper gestational limit was retained, all of the jurisdictions considered made some provision for abortion to be permitted beyond it, and these grounds for later abortion were likewise the issue of close attention.

Northern Ireland has modernised its abortion laws in recent years, moving away from an almost complete prohibition of abortion, which had been widely criticised for violating human rights.^{[72],[73],[74]} The Abortion (Northern Ireland) (No. 2) Regulations 2020 offer a tripartite model:

• until 12 weeks, abortion is available on request;
• from 12-24 weeks, abortion is available on grounds broadly equivalent to Ground C;
• after 24 weeks, abortion is available only on grounds broadly equivalent to Grounds A, B, E, F, and G.^[75]

Other examples that set out specific grounds for abortion over a certain gestational limit were considered. For instance, in South Australia, abortions beyond 23 weeks are lawful only on grounds that likewise resemble those contained in the Abortion Act 1967.^[76]

The Group also considered with interest a different model used in other Australian states. Under Victoria’s Abortion Law Reform Act 2008, abortion is available on request until 24 weeks. After 24 weeks, it is allowed when a registered medical practitioner,

• reasonably believes that the abortion is appropriate in all the circumstances; and
• has consulted at least one other registered medical practitioner who also reasonably believes that the abortion is appropriate in all the circumstances.

In considering whether the abortion is appropriate in all the circumstances, the medical practitioner must have regard both to all relevant medical circumstances, and the individual's current and future physical, psychological and social circumstances.

Western Australia and New Zealand have each adopted similar legal models, with a slightly lower upper time limit (23 weeks in Western Australia, 20 weeks in New Zealand). The New Zealand law also requires the health practitioner to consult with another qualified health practitioner, but provides for a slightly different set of factors to be taken into account, comprising:

• all relevant legal, professional and ethical standards to which the qualified health practitioner is subject;
• the person’s physical health, mental health and overall wellbeing;
• the gestational age of the fetus.

The jurisdictions considered also made specific provision for abortions to be performed in ‘emergency’ situations, without meeting the formal requirements that might otherwise apply.

The Group benefited from the advice of experts with experience of these jurisdictions following reform. In particular, colleagues from New Zealand provided helpful insight to the Group regarding claims that there has been a significant increase in later stage abortions in New Zealand following amendments to the law on Grounds and Gestational age limits there. While there has been an increase in the number of abortions over 20 weeks, these represented less than 1% of the total number of abortions in 2023.^[77] New Zealand’s 2024 annual report on abortion notes that changes reflect the increased accessibility of in-person first-trimester abortions, as well as the availability of national and regional telehealth early medical abortion (EMA) services.^[78] Colleagues from New Zealand reflected to the Group that prior to the change in legislation, it was extremely difficult for a woman to access an abortion over 20 weeks gestation despite there being very valid reasons for such a request – and that women are now able to access the services they absolutely need. Further, increasing access to abortion at all gestations has importantly led to the average gestation at the time of an abortion going down significantly to between 7-9 weeks, and 80.4% of abortions being carried out under 9 weeks in 2023,^[79] compared to 64.5% in 2019.^[80] The annual report also highlights significant improvements for those living in deprived areas, who also now access abortions at earlier gestations.

5.3.2 Stakeholder Views and Evidence

The British Social Attitudes survey reveals that, in 2024, 95% of British adults believed that abortion should be allowed if the woman’s health is seriously endangered by a pregnancy and 89% where there is a strong chance of the baby having a serious health condition. A high but smaller proportion (76%) believe abortion should be allowed if the woman decides on her own she does not wish to have a child.^[81] Submissions rather tended to focus on grounds C and D) and ground E. The Group carefully considered these submissions and their suggestions for reform.

Ground C (pregnancy less than 24 weeks involving greater risk of injury to physical or mental health)

Some submissions made by faith-based and Pro-Life groups expressed strong opposition to the existing grounds for abortion contained in the Abortion Act 1967. They argued that Grounds C and D are too broad and subjective, with Ground C effectively allowing abortion on request. Some submissions raised concerns about a cultural shift towards expressive individualism, whereby personal autonomy and choice are prioritised above other ethical and societal considerations. They argued that this has led to a situation where the legal framework does not reflect a balanced consideration of both maternal and fetal interests. On this basis, they called for restrictive amendment of the current Grounds C and D.

In contrast, some submissions noted that rigid or overly prescriptive criteria could lead to unjust outcomes, particularly for those facing complex medical, psychological, or social challenges. The ability to interpret the law in a way that reflects the nuances of individual cases was seen as a strength, rather than a weakness, of the current system.

Others argued that abortion should be permitted on request, and this should be explicitly stated in legislation, rather than being operationalised through broad interpretations of Ground C. They noted that current law is anachronistic and paternalistic, having failed to keep pace with broader shifts in medical practice towards shared decision-making and patient-centred care, and that it is impossible to reconcile with the emphasis on autonomy reflected in Montgomery.^[82] Further, they argued that requiring two doctors to certify that a specific ground of the Abortion Act is met creates delay and barriers to access while providing no clinical benefit.

Women’s organisations noted that the WHO “recommends against laws and other regulations that restrict abortion by grounds” due to physical and mental health risks for women; delays in accessing abortion; variable interpretation of grounds by healthcare providers; uncertainty about the law or how it should be applied; incompatibility with human rights law; particularly negative impact on women facing financial hardship and lower educational attainment; disproportionate impact on survivors of rape; the right to non-discrimination and equality in accessing sexual and reproductive health.^[83]

Sex Selective abortion

Several submissions made by faith-based and Pro-Life groups raised concerns regarding sex-selective abortion, noting that the availability of early and accurate sex determination through non-invasive prenatal testing (NIPT) increases the risk of such practices occurring. Some submissions argued that, while the existing law does not explicitly permit abortion on the basis of sex, its ambiguity and the broad interpretation given to Ground C allows for such practices to occur. They cited anecdotal evidence and media investigations suggesting that some women may be pressured into terminating pregnancies based on the sex of the fetus, particularly in cultural contexts where there is a strong preference for male children. Some submissions referenced international agreements and declarations that call on states to eliminate practices such as prenatal sex selection and female infanticide, arguing that the UK should align domestic legislation with these commitments.^[84] Some submissions pointed to legislative models in other jurisdictions, such as the Isle of Man, where abortion on the grounds of fetal sex is explicitly prohibited except in cases involving sex-linked genetic conditions. On this basis, they called for legal clarification or explicit prohibition of sex-selective abortion, or regulatory safeguards to prevent misuse of prenatal testing technologies.

A further submission on this issue came from Professor Maya Unnithan, who led a study on Pre-Natal Sex Selection among British minority ethnic South Asian families (Pakistani, Indian and Bangladeshi).^[85] In line with Government data,^[86] the study had concluded that sex-selective abortion is not widespread in the UK. It offered a rare insight into the views of the women in those communities, who overwhelmingly recommended that concerns regarding sex selection should not be used to justify restrictive abortion laws. The study rather recommended further education and funded specialist support services for women facing pressure to have male children in instances of closely spaced pregnancies, unwanted pregnancies and also cultural expectations.

Members of the Advisory Group, including Abortion Rights Scotland argued that women should have the right to make their own reproductive choices and are best placed to make pregnancy decisions based on their personal circumstances. These may include risk of violence and abuse. They also flagged the lack of evidence to suggest women seek abortion based on the sex of the fetus, that it would not be possible to police such an offence against sex selection in practice, and that arguments in favour can be prejudiced against ethnic minority communities and attempt to allocate rights to the fetus at the expense of women. Furthermore, they refuted arguments that legislating against sex selective abortion is positive for gender equality, noting that this merely punishes women for structural gender inequality and that efforts should be redirected towards tackling root causes.

Ground E (pregnancy at any gestation with substantial risk of serious ‘handicap’)

Many stakeholders – primarily faith-based and Pro-Life groups – raised particular concerns regarding the fetal anomaly ground of the Abortion Act (section 1(1)(d) or Ground E), arguing that it should be either removed altogether or made subject to the same upper gestational limit of 24 weeks as other abortions. In support, they argued that:

• The term ‘seriously handicapped’ in section 1(1)(d) of the Act is interpreted too broadly by doctors to permit abortions on the basis of conditions such as cleft lip/palate or club foot, and Down’s Syndrome.
• The wording of Ground E is outdated and insensitive, reflecting the prevailing attitudes towards disabled people of the late 1960s.
• Ground E is discriminatory in allowing abortion (without gestational limit) following prenatal diagnosis of risk of serious fetal anomaly, when the termination of a fetus without a such an anomaly would not be permitted beyond 24 weeks.

The Group recognised that similar concerns regarding Ground E have also been raised by some disability rights campaigners, including Heidi Carter (née Crowter) in her recent court action.^[87],[88]

Other stakeholders criticised Ground E but disagreed that the appropriate solution was further restriction of the law. For example, the Advisory Group suggested that this issue would be best addressed through the full decriminalisation of abortion without gestational limit. It noted that the UN Committee on the Rights of Persons with Disabilities (CRPD) has recommended that ‘[w]omen’s rights to reproductive and sexual autonomy should be respected without legalizing selective abortion on the ground of fetal deficiency.’^[89]

A third group of submissions supported the retention of the current grounds-based approach. In particular, ARC drew on its experience of supporting women and couples grappling with diagnoses of fetal anomaly to set out the benefits of retaining the statutory framework currently offered by ‘Ground E’. Without such a framework to guide clinical judgment, it was concerned that doctors involved in prenatal diagnostics or fetal medicine might distance themselves from discussing abortion. They also argued that individuals facing the decision to terminate a pregnancy following the diagnosis of a serious fetal anomaly can find comfort and reassurance in medical certification, which offers validation helping individuals to come to terms with a deeply distressing situation. For these individuals, ARC argued, a specific statutory framework permitting later abortion can be experienced not as a barrier, but rather as important source of support and legitimacy.

The Group noted that the applicability of discrimination arguments in this context is not straightforward given that the fetus is not recognised as a legal person capable of experiencing discrimination, under Scots law.^[90] While disabled people have a wide range of views regarding Ground E, the Group nonetheless noted that this includes many who find Ground E profoundly offensive.

The Group also considered a range of other evidence. It is the case that abortions are authorised on the basis of a prenatal diagnosis of Down’s Syndrome (there were 58 such cases in 2024 under Ground E), including a small number that take place after 24 weeks (fewer than 5 over the six years from 2019 to 2024). The Group paid close attention to a letter written by fetal medicine specialists at the Royal College of Obstetricians and Gynaecologists (RCOG), opposing a proposal to lower the gestational limit for Down’s Syndrome diagnosis to 24 weeks in English law,^[91] and the detailed evidence provided by Professor Basky Thilaganathan for the RCOG in the Heidi Crowter case.^[92]

This evidence noted that while Down’s Syndrome can be diagnosed prenatally with a high level of accuracy, the same is not true for its likely severity in a specific future child. While many people diagnosed with Down’s Syndrome enjoy a life expectancy of 50-60 years and a good quality of life, there is an increased risk of stillbirth or death in childhood and those who survive have symptoms that vary greatly in severity. A diagnosis of Down’s Syndrome includes increased risk of specific heart problems, digestive system and neurological anomalies, which can have a significantly negative impact on life-expectancy and quality of life of the individual.^[93],[94]

The Group noted that during pregnancy women have the choice to access screening tests for Down’s Syndrome at specific stages and that many (around 40%) choose not to access the test.^[95] It further noted that diagnostic pathways for fetal anomaly can take time, meaning patients may be beyond 24 weeks gestation before getting a final diagnosis. For this reason, specialists have argued that patients need time to come to terms with a diagnosis and to make an informed decision on whether or not they continue with the pregnancy; and those treating them need time to make a careful, case by case diagnosis.^[96]

The Group noted that Ground E reflected a balance between the rights of pregnant women to make decisions regarding their future parenting, and an interest in protecting the developing fetus.^[97] It recalled the comments made by the Court of Appeal in Crowter that the decision to end a pregnancy was “the right and personal responsibility of the woman, in accordance with the law”, that she was “uniquely placed to make it”.^[98] It also recognised the complex professional judgments made in these cases.

5.4 Conclusions and Recommendations

The Group agreed unanimously that current Scottish abortion law is not fit for purpose and that alternative models should be considered. In particular, it agreed that the grounds-based model was anachronistic, paternalistic and failed to reflect best modern practice in abortion care. It agreed that legal recognition should be given to the woman’s right to make their own decision regarding whether to continue or to end a pregnancy, and that abortion should become available on request, at least within gestational limits. Whilst recognising a significant shift in the formal legal position, this would serve to align Scottish abortion law with existing practice, which evidence suggests is broadly supported by the population.

5.4.1 Gestational Limits

Three options for gestational limits were identified by the Group as meriting further close discussion:

Model A: No Gestational Limit

The first model that the Group considered in detail would have no gestational limits. In practice, this would mean that abortion would be available on request throughout pregnancy, in the same way as other healthcare services. This did not mean abortion on demand at all gestations: as for other health procedures, abortion would become a matter of shared decision making between the woman and their healthcare professional with treatment not offered in circumstances where the latter believed it inappropriate. It was noted that the international evidence – including the examples of Canada and ACT – clearly suggests that removal of gestational limits would not result in a related increase in abortions or, specifically, in an increase in the incidence of later abortions. It was also noted that Scots law had not contained a statutory upper gestational limit for abortion until 1990, with no evidence of a higher incidence of later terminations before this time (or relative to England and Wales, where an upper limit had been incorporated into the law from the Infant Life (Preservation) Act 1929)^[99].

Model A would have the advantage of fully reflecting respect for autonomy, treating abortion as a healthcare matter, and removing all legal barriers that might delay access to timely care. It would also align Scots law with the WHO recommendation to remove gestational limits and grounds, meaning patients do not need to justify their reasons for seeking abortion at any stage of pregnancy. Further, it would address the concerns regarding a specific exception permitting abortion for fetal anomaly, reflecting the suggestion of the Convention on the Rights of Persons with Disabilities (CRPD) that “[w]omen’s rights to reproductive and sexual autonomy should be respected without legalizing selective abortion on the ground of fetal deficiency.”^[100] It was also felt that model A might help to reduce the stigma surrounding abortion, which the WHO has noted is a major barrier to safe abortion care. Finally, the Group noted that gestational limits disproportionately affect people with limited access to services, including rural, low-income or marginalised populations. The absence of an upper gestational limit would also support patients facing delayed diagnoses for serious fetal anomalies and avoid the pressures that might result in rushed decision making.

However, the WHO acknowledges that the architects of any legal reform must consider the sociopolitical context in which that reform takes place. Removing gestational time limits from the law would be a significant change and, as is clear from the submissions that the Group considered, later abortion raises particular concerns for many stakeholders. Further, while public opinion is broadly and consistently in favour of respecting women’s rights to make abortion decisions, there is much less support for liberalising access to abortion after 24 weeks.^[101] Regardless of the intention of the reform, removal of the upper time limit could be understood as heralding an increase in the incidence of later abortions, even if this concern is not supported by the existing international evidence.

Further, the Group noted that legal reform alone is not sufficient to address barriers to abortion care and stigma regarding abortion. Clinicians on the Group, as well as Antenatal Results and Choices, also noted that the removal of a statutory framework to guide decision making at later gestations where grounds are currently more restrictive might impact negatively on patients. This would also be the case if, for example, it resulted in an increased rate of conscientious objection.

For all these reasons, the elimination of a gestational limit is likely to face significant challenges and significant opposition, which could undermine broader reform efforts.

Model B: Retain the Existing 24 Week Limit

The second model that the Group considered would retain the 24-week gestational limit, with abortion available on request below 24 weeks and available beyond 24 weeks in more limited circumstances.

Model B was considered to represent a significant advance in respect for the autonomy of patients up to 24 weeks. It would go some way to reflecting the dramatic advances made since 1967 with regard to the safety of abortion. It would also go some way to respecting the mandate that abortion should be treated as a matter of healthcare rather than criminal law, reflecting a broader trend in medical law to respect patient autonomy.

Model B would avoid some of the challenges identified with Model A. The 24 week -gestational limit is well established in the current law, as well as in healthcare settings, and is strongly supported by public opinion.^[102] In making specific provision for abortion after 24 weeks, the new law might also retain a statutory framework to enable a healthcare-focussed, case-by-case approach in situations that are often complex and distressing, such as serious fetal anomaly or risks to the patient’s life or health. In particular, Model B would protect the time required for patients facing a fetal anomaly diagnosis to make what can be incredibly difficult decisions, as emphasised by ARC.

Model C: Reduce the 24 Week Limit

The third model that the Group considered would be to reduce the gestational limit, with particular attention given to a suggested limit of 22 weeks, permitting abortion on request below this limit but above it only in certain, limited circumstances. Model C would respond to some degree to the concerns raised by faith-based and Pro-Life groups set out above, who argued that the current limit was out of line with recent clinical advances in viability.

While considered in detail, based on the evidence reviewed, the Group unanimously agreed that the balance of evidence did not support lowering the 24-week limit. This remains the most appropriate threshold, given that the survival rates of babies born at the extremes of viability remain very low, with serious morbidity risks very high. The Group noted that Model C would also serve to reduce access and create barriers, particularly for the most vulnerable groups of women. This would contravene the Group’s terms of reference, as set by the Scottish Government, and its agreed overarching principles. It would also shorten the window for accessing services, leading to the potential for more rushed decision-making at a time of significant anxiety and distress for affected patients, who might also be denied the option of further testing. The Group also considered it likely that any restriction below that in place across the rest of the UK would likely result in some women travelling and paying privately to access care – making any such change particularly inequitable while not achieving its purported goals.

Recommendations

1. Based on all the evidence provided through stakeholder submissions to the Group, expert knowledge within the Group, and careful consideration of international examples:

2. The Group recommend that the existing 24 week limit for most abortions should be retained (model B).

3. The Group recommend that abortions after this gestational limit should be permitted under certain Grounds.

5.4.2 Grounds

Having decided to recommend that abortion be available on request before an upper gestational limit of 24 weeks, the Group then considered what provision should be made for the small number of cases where abortion is sought after this time. It noted that all of the international examples considered offered some provision for later abortion, and that no stakeholders argued for an absolute ban on abortions after a specific gestational limit, or criticised provision of abortions on Ground A, B or G (where necessary to save a pregnant woman’s life or prevent grave permanent injury to her health).

Here, the Group considered two broad options, with the precise wording – covering who might lawfully provide abortion services – discussed below as part of the Group’s deliberation on appropriate Pathways.

Grounds for abortion after 24 weeks

First, the Group considered retaining the current Grounds set out in section 1 of the Abortion Act 1967, subject to modernising the language. These grounds are well understood and embedded in clinical practice, offering a framework that clinicians use to support difficult and sensitive conversations with patients. While the statutory language of section 1(1)(d) (Ground E) was felt to be outdated and offensive, it was felt that this might be partially addressed through revising it to remove reference to ‘risk’ of ‘suffering’ a ‘handicap’ in favour of ‘possibility’ of ‘having’ an ‘impairment’. It was noted that the Northern Ireland Regulations – which avoid the word ‘handicap’ – go some way to making these changes. However, retaining a specific fetal anomaly ground – however worded – on the face of statute law would continue to treat fetal anomaly as an exception to a general rule that a pregnancy must be continued, and delays associated with diagnosis after the 20-week scan may require more time for decision-making than would be possible within a 24 week limit. This would offer only a partial resolution of the issues raised by some disability rights campaigners, and in submissions made as part of this process.

For these reasons and considering its terms of reference and agreed overarching principles, the Group agreed that keeping the previous grounds, even if updated with more sensitive language, was not its preferred approach. It recognised, however, that abolition of this ground would leave women in difficult circumstances unable to make fully informed decisions about continuing their pregnancy after an antenatal diagnosis and was clinically likely to result in some women being forced to continue a pregnancy which ultimately resulted in stillbirth or neonatal death. As a result, the Group sought to consider alternative framings which would permit the uncontroversial health and life grounds, as well as other aspects of a woman’s circumstances which could require access to later abortion.

It noted the advantages of the approach now adopted in New Zealand, and some Australian states. This retained a statutory framework for decision making for later terminations that offered both structure and flexibility, but removed a standalone ground for fetal anomaly, offering a fuller response to concerns that current law expresses a discriminatory message about the value of disabled people’s lives.

The Group also noted that the current highly restrictive framework limited access to abortion for women and girls who had been the victims of sexual assault and rape, including girls under the age of 16 who had not been aware of their pregnancy until they were beyond the legal limit. The Group understands that current law would offer a basis for authorising abortion after 24 weeks in these circumstances. However, an important lack of clarity in the framing of the current law had resulted in a lack of clinical pathways for patients in these extreme circumstances, with the threat of criminalisation, meaning that many doctors were unable or unwilling to provide care.

It noted that the adoption of a similar legal model has not resulted in any significant increase in the number of later abortions reported in Victoria, Western Australia, or New Zealand.^[103]

As a result, the Group agreed to recommend the following wording for new grounds above 24 weeks gestation:

5. An appropriately trained registered healthcare professional is authorised to provide an abortion for a person who is more than 24 weeks pregnant if –

(a) the healthcare professional decides in good faith that performing the abortion is appropriate; and

(b) the healthcare professional has agreed with one other registered healthcare professional that performing the abortion is appropriate

6. In considering whether an abortion is appropriate, a registered healthcare professional should have regard to –

(a) the gestational age of the fetus;

(b) all relevant current and reasonably foreseeable medical circumstances of the patient and the fetus;

(c) the patient’s current and reasonably foreseeable physical, psychological and social circumstances.

7. One appropriately trained registered healthcare professional may terminate a pregnancy without agreement from a second healthcare professional where they believe in good faith that an abortion is immediately necessary to save the life of the pregnant person.

8. In the case of multiple pregnancy, anything done to terminate the pregnancy as regards one particular fetus is authorised only if that ground applies in relation to that particular fetus.

Sex selective abortion

The Group agreed that it was unnecessary and potentially harmful to introduce a specific prohibition on sex selective abortion (SSA). It noted the lack of robust evidence that SSA takes place in Scotland. It believed that any prohibition would be unworkable in practice, requiring either intrusive and inappropriate questioning of all women regarding their motivation for seeking abortion, or racial profiling and additional questioning of a smaller proportion of women from ethnic communities where sex selective abortion is believed to be practiced. This would sit particularly uneasily within broader reform that recognised women’s rights to access abortion on request within specific gestational limits. It was also noted that the end result of a denial of abortion care related to such concerns would be compelling a woman to continue a pregnancy she wanted to – or was being pressured to - end, posing serious risks to her mental and physical health, and increasing the likelihood of her seeking abortion outside the formal healthcare sector in a manner which could endanger her health. Finally, it was noted that the small amount of peer-reviewed research that has given voice to women in ethnic communities where SSA has historically been practiced found that they tend to support the eradication of SSA through further education and other initiatives rather than criminal prohibition.

Specific concerns had been raised regarding coercion in SSA. The Group agreed that any form of reproductive coercion (whether in favour of ending a wanted pregnancy or continuing an unwanted one) must be taken very seriously. The group further concluded that criminalisation of SSA would involve the possibility of criminalisation of women seeking abortions on these grounds – and that under no circumstances was it appropriate to criminalise a woman who was being subjected to coercive or controlling behaviour, or any other form of domestic abuse. This is considered in more detail in Pathways and Offences, below.

Recommendations

1. No specified Grounds are required to access abortion care up to 24 weeks gestation.

2. Decisions regarding abortions over 24 weeks gestation should be made in good faith by two healthcare professionals, who must agree that the abortion is appropriate, except in cases where an abortion is immediately necessary to save the life of the pregnant woman in which case one healthcare professional may make a decision.

3. That Grounds for an abortion after 24 weeks gestation are amended in an updated abortion Act to those set out on page 56-57 of this report.

4. That no specific reference is made to sex selective abortion within any updated abortion legislation.