Review of Abortion Law in Scotland Expert Group: report

7. Offences

7.1 Review of the Current Law

The remit provided by the Scottish Government was to consider abortion as a healthcare matter. In order achieve this and to align abortion with other healthcare procedures, the Group believes that criminal sanctions against abortion should be removed unless they are deemed necessary and proportionate to achieve the goals of good healthcare regulation, which include ensuring safety, high standards of care, and respect for the rights of the patient. Decriminalisation does not mean deregulating abortion care nor removing all criminal offences that might apply to it. The Group explored the wider framework of legal and professional sanctions that relate to abortion to provide the Scottish Government with a full view of the landscape.

This topic includes consideration of offences that may be committed by women acting in relation to their own pregnancies, healthcare professionals who act outside regulatory frameworks or clinical guidelines, and unqualified providers. It also concerns criminal offences for individuals who end a woman’s pregnancy through the use of fear, force, or fraud.

It is important to note that common law in Scotland has long held that the fetus is treated as a part of the woman’s body, and not a separate legal person. Offences are therefore viewed through the prism of potential harm caused to the woman, rather than to the fetus or pregnancy itself. The Group does not recommend any alteration to this long-standing principle.

7.1.1 Abortion-specific law

Despite the 1967 Act providing a legal route for accessing abortion services, abortion remains potentially a common law crime in Scotland if performed outwith its provisions, posing potential legal risks for patients and providers. The Group notes that over the past 25 years, there have been investigations and prosecutions for abortion in Scotland.

Other common law or statutory offences may apply to third parties who end a pregnancy without the pregnant woman’s consent, or in a way which causes her harm. The most recent example of this is from July 2025 where a man was sentenced to ten years and six months imprisonment for assault to injury, sexual assault and procuring an abortion.^[172] The abortion offence in this case involved administering abortion medication without the woman’s knowledge or consent.

The Abortion (Scotland) Regulations 1991, as amended in 2021, impose additional obligations on practitioners, including mandatory notification to the Chief Medical Officer for each abortion. If practitioners fail to comply with these regulations, they could face professional sanctions. In addition, under section 2(3)^[173] of the 1967 Act, failure to comply with the notification requirements can result in a fine.

7.1.2 Regulation of healthcare providers

Abortion care is also subject to a far wider range of regulations governing healthcare professionals and medical practice, which stems from both common law and statute and includes sanctions for non-consensual or negligent procedures. Healthcare professionals involved in abortion services are also overseen by regulatory bodies such as the General Medical Council (GMC) and the Nursing and Midwifery Council (NMC). Breaches of legal or ethical standards can lead to disciplinary actions, including suspension or removal from the professional register.

In Scotland, abortion providers are also regulated by Healthcare Improvement Scotland. Clinical guidance and standards for doctors are provided by the GMC as the statutory regulator of doctors’ practice.^[174],[175]

Professional bodies, such as the Royal College of Obstetricians and Gynaecologists (RCOG), also issue best practice guidance for healthcare professionals.^[176] These respond to evolving circumstances, as with the recent RCOG guidelines regarding police involvement following abortion or pregnancy loss.^[177] Guidance from NICE and the Scottish Abortion Care Providers network is also used by abortion care providers in Scotland.

7.1.3 The Concealment of Birth (Scotland) Act 1809

The Concealment of Birth (Scotland) Act 1809^[178] succeeded a law enacted in 1690,^[179] which was concerned with the abandonment of ‘illegitimate’ children and cases where infanticide was suspected but could not be proven.^[180],[181]

The 1809 Act rules that concealing a birth is punishable with imprisonment. Section 2 of the Act provides that:

“And if, from and after the passing of this Act, any woman in Scotland shall conceal her being with child during the whole period of her pregnancy, and shall not call for and make use of help or assistance in the birth, and if the child be found dead or be amissing, the mother, being lawfully convicted thereof, shall be imprisoned for a period not exceeding two years in such common gaol or prison as the court before which she is tried shall direct and appoint.”^[182]

7.1.4 Medicines Act 1968 and the Human Medicines Regulations 2012

Under the Medicines Act 1968^[183] and the Human Medicines Regulations 2012^[184] mifepristone and misoprostol (the two medicines used to induce abortion) are classified as “prescription-only medicines” (POMs). POMs can only be dispensed with a valid prescription from a registered healthcare professional (e.g. doctor, dentist, or nurse) and administered as per the practitioner’s instructions.

It is an offence to sell or supply prescription-only medicines within the UK without a valid prescription. Therefore, anyone sending/giving mifepristone or misoprostol to any patient without a valid prescription may be committing an offence regardless of the Abortion Act 1967 or the common law relating to abortion.

7.1.5 Reproductive coercion

An important additional area of concern that was raised in many submissions by stakeholders concerned coercion. The Group notes that reproductive coercion encompasses both coerced pregnancies and coerced abortion. Those experiencing reproductive coercion often experience wider coercive, controlling or abusive behaviour.

A 2022 Freedom of Information response from the Scottish Government confirmed that while there is no specific offence of coercion to have an abortion, various existing offences can be used to prosecute coercive behaviour depending on the facts of the case.^[185] Below is a summary of the existing legislation that is relevant to the consideration of coercion.

7.1.6 Domestic Abuse (Scotland) Act 2018

This Act introduced a specific offence of abusive behaviour towards a partner or ex-partner. Section 1 criminalises a course of behaviour that is abusive and likely to cause the victim physical or psychological harm.

Section 2 provides a non-exhaustive definition of abusive behaviour to include behaviour that is likely to have the effect of:

• Making the victim dependent or subordinate.
• Isolating the victim from friends, family, or support.
• Controlling, regulating, or monitoring the victim’s day-to-day activities.
• Frightening, humiliating, degrading, or punishing the victim.

Any offending behaviour under this Act would need to have formed part of a course of conduct that is abusive to the perpetrator’s partner or ex-partner and the course of conduct as a whole would have to be such that it would be likely to cause the victim to suffer physical or psychological harm (defined as including fear, alarm or distress) and the accused must be at least reckless as to whether their behaviour would likely to have this effect.

The Act sets out three conditions, all of which must be proven for a conviction:

• the accused engaged in a course of behaviour which was abusive of the accused’s partner or ex-partner.
• a reasonable person would consider the course of behaviour to be likely to cause the partner/ex-partner to suffer physical or psychological harm.
• the accused either intended the course of behaviour to cause such harm or was reckless as to whether it would.

If a partner or ex-partner pressures or forces someone to terminate a pregnancy as part of a pattern of controlling or abusive behaviour, this could fall within the scope of the Act.^[186]

7.1.7 Criminal Justice and Licensing (Scotland) Act 2010

Section 38 of this Act creates an offence of threatening or abusive behaviour likely to cause a reasonable person to suffer fear or alarm. This is a broad provision and can apply to a wide range of conduct, including threats or intimidation related to abortion decisions. If someone uses threatening or abusive behaviour to coerce a person into having an abortion, this could be prosecuted under this section.^[187]

7.1.8 Abusive Behaviour and Sexual Harm (Scotland) Act 2016

Section 1 (2) of this Act defines an existing offence as aggravated when a partner or ex-partner commits an offence and:

(a) the person intends to cause the partner or ex-partner to suffer physical or psychological harm, or

(b) in the case only of an offence committed against the partner or ex-partner, the person is reckless as to causing the partner or ex-partner to suffer physical or psychological harm.

This Act contributes to the broader legal context of protecting individuals from abuse and harm.

7.1.9 Common Law and Other Offences

In addition to statutory provisions, common law offences such as assault or threats may be relevant. For example, if physical force or threats are used to compel someone to undergo an abortion, or if abortion medication is administered without consent, this could constitute assault or threats under common law to the woman involved.^[188]

Given the nature of the ending of a pregnancy through fear, force, or fraud – and the likely impact this will have on the woman – decisions on sentencing would likely be reflective of the significant level of harm involved, and in some circumstances, may involve aggravating factors.

7.2 Review of International Examples

The Group’s review of offences for women seeking abortion and providers of abortion services was supported by consideration of several other jurisdictions, which are laid out in further detail in Annex B. In line with the Group’s remit, particular attention was paid to jurisdictions that had moved to treat abortion as an issue of healthcare, along with other examples suggested by stakeholders. The international examples demonstrated some variation in how criminal law interacts with abortion care but displayed a notable trend towards reducing the use of criminal sanctions against women who have acted with regard to their own pregnancies.

The examples considered also show a shift away from the criminalisation of abortion as a general offence and toward a model where the criminal law is reserved for specific instances where abortion may be harmful to women: unqualified provision, coercion or breaches of clinical safeguards. While most jurisdictions maintained some criminal offences linked to abortion, these are typically narrow and proportionate, often do not include imprisonment as a penalty, and – importantly - do not focus on punishing providers or women acting in good faith, but on preventing unqualified providers or non-consensual procedures.

Canada represents the most fully decriminalised model, with no abortion-specific offences and care being regulated entirely through health law and professional standards. At the other end of the spectrum, Germany retains a detailed criminal code - abortions that are provided outside of prescribed conditions may lead to penalties for providers, and in some cases individuals who have acted with regard to their own pregnancies, though exemptions do apply. France maintains criminal offences for non-consensual abortions and procedures carried out beyond the legal gestational limit, or by unqualified providers.

Many recently revised legislative frameworks, including those in New Zealand, South Australia, Northern Ireland and Western Australia, explicitly protect women from any criminal liability and instead include offences targeted towards ensuring that only qualified health professionals provide abortion care. In South Australia, for example, unqualified provision of abortion is punishable by up to seven years’ imprisonment.

With regard to coerced or non-consensual procedures, a number of jurisdictions include specific criminal offences. For example, in France, performing an abortion without the pregnant person’s consent is punishable by up to five years’ imprisonment and a substantial fine. Both Northern Ireland and New Zealand have offences designed to criminalise actions taken to cause the death of a fetus without the pregnant person’s consent. New Zealand criminalises ‘causing the death of a child who has not yet become a “human being” under the law’ with a maximum sentence of 14 years, and Northern Ireland’s “child destruction” offence carries a life sentence. In both cases, it is explicit that the woman would be exempt from any criminal offence.

It is clear from the examples reviewed that decriminalisation of abortion – especially for patients – does not lead to deregulation. Even in Canada, where there are no abortion specific offences, other healthcare regulation applies in certain circumstances, reflecting a system that does not exceptionalise abortion care but aims to protect patient safety in the same way as other healthcare services.

It is important to note that the Group focused predominately on abortion specific offences and therefore may not have considered, in depth, other healthcare law in international models that may interact with abortion care. In Scotland, there are a number of other pieces of relevant legislation or common law offences that have been considered alongside specific abortion legislation before forming recommendations on any specific offences within the Scottish legal context.

7.3 Stakeholder and evidence review

The Group heard various claims regarding public opinion on this issue. On the one hand, it was told that opinion is opposed to decriminalisation, with some of those making this claim referencing a poll conducted by Pro-Life groups via Whitestone Insight in 2024.^[189] This poll found that 55 per cent of adults agree that it should remain illegal for a woman to abort a healthy baby after the current 24 week time limit. Only 16 per cent, fewer than one in six agreed that abortion should be fully decriminalised while 29 per cent said they preferred not to say or did not know. It is important to note that the full findings of this poll were never published, including the specific questions asked.

On the other hand, the Group reviewed other polling data,^[190] which found that, in response to the question ’In events where women have had abortions outside the set rules (for example, by having an abortion without the consent of a doctor, or beyond the legal time limits), do you think they should or should not face criminal prosecution?' 52 per cent of those polled agreed that women should not face prosecution, with 21 per cent disagreeing.

The Group notes the prevalence of push polling in this area, meaning that individual poll results needing to be treated with caution. Gray and Wellings (2020) explain that polling is an inexact science, and questions tend to have an ‘acquiescence bias’, a tendency on the part of respondents to agree with a statement on which they are asked to express a view (Lavrakas, 2008).^[191] Nonetheless, the Group notes that the most authoritative survey of public opinion, the British Social Attitudes survey has found a strong and consistent trend towards a liberalisation of opinion regarding abortion.^[192]

7.3.1 Criminal offences for women acting with regard to their own pregnancies

A recent amendment to remove women from the criminal law related to abortion in England and Wales was passed by the House of Commons in June 2025 with 379 votes in favour and 137 against. This brings the law in England and Wales into line with that of Northern Ireland on this issue, leaving Scotland as the only part of the UK where women remain liable to prosecution for ending their own pregnancies.

Views provided to the Group on the topic of criminal offences for the woman varied. Some stakeholders want to see women entirely removed from the criminal law relating to abortion, while others raised concerns about even this limited measure of decriminalisation.

As mentioned earlier in this report, all relevant major professional health bodies in the UK support decriminalisation of abortion, including the British Medical Association (BMA),^[193] the Royal College of General Practitioners (RCGP),^[194] the Royal College of Obstetricians and Gynaecologists (RCOG),^[195] the Royal College of Nursing (RCN),^[196] the Royal College of Midwives (RCM),^[197] the Royal College of Psychiatrists (RCPsych), the Royal College of Anaesthetists (RCoA), the College of Sexual and Reproductive Healthcare (CoSRH),^[198] the Faculty of Public Health, the British Society of Abortion Care Providers (BSACP), the British Maternal and Fetal Medicine Society (BMFMS),^[199] the British Association of Sexual Health and HIV (BASHH), the Faculty of Forensic and Legal Medicine (FFLM)^[200] and the International Federation of Gynaecologists and Obstetricians (FIGO). FIGO represents medical professionals in 132 countries and territories around the world.

The BMA notes that abortion is a safe procedure where major complications and mortality are rare at any gestation.^[201] They point out that now most abortions are carried out in the first trimester using medicines, but when the 1967 Act was passed, abortion carried significant risks. As such they believe the law imposes restrictions which do not reflect the current evidence-base. The BMA also believe the law is not in line with the emphasis on patient autonomy found in other areas of medicine, where clinical decisions are made jointly between the patient and healthcare professional. Decisions made by patients and healthcare professionals are guided by regulations, professional standards and clinical guidelines which promote good practice. The BMA encourage access to lawful, regulated services, but acknowledge for a range of reasons that patients are not always able to access these services and that criminalisation does not stop some individuals accessing abortion through unregulated routes.

The BMA supports the WHO view that criminalisation of abortion does not reduce the incidence of abortion and is more often associated with increased maternal mortality and morbidity, meaning women accessing abortion through unregulated channels is exposing them to serious harm.^[202] Best practice guidance from the WHO is clear that regulation of abortion should be removed from the criminal law, recommending full decriminalisation of abortion.^[203]

In their submission to the Group, the Royal Pharmaceutical Society of Scotland (RPharmS) suggested that a balanced approach is necessary when considering criminal offences for women regarding controlled medicines. RPharmS argued that it is crucial to address the risk of medicines being used safely and appropriately, while ensuring these medicines do not fall into the wrong hands and then misused – in a similar way to concerns about all prescription medications. RPharmS also advised that there could be consequences of introducing new offences that would deter individuals from seeking necessary medical support.

Members of the Advisory Group raised the concern that abortion is vital and routine healthcare and that keeping criminal offences for the woman would legitimise policing of individual reproductive decision making. Engender say that the legal framework stigmatises those who seek abortion^[204],[205] by requiring them to meet outdated and excessive procedural thresholds which unnecessarily infringe on their privacy when accessing routine healthcare.

The Advisory Group also noted international evidence that suggests the decriminalisation of those seeking abortion in law does not directly increase the incidence of abortion, gestational age at the time of abortion, sex selective abortion or compromise the safety of abortion.^{[206], [207]}

In Australia, both in Victoria and South Australia, the incidence of abortion has been on a steady downward trend, unaffected by decriminalisation. In 2008, when Victoria decriminalised abortion, the incidence of abortion was 16.8 per 1,000 women aged 15-44. In 2017, this dropped to 12.2 per 1,000 women aged 15-44.^[208]

The Roman Catholic Bishops’ Conference of Scotland (BCOS) raised concerns that if abortion is removed from the criminal law, this could lead to an increase in abortions at later gestations, when a fetus could be born alive. The evidence from countries that have recently reformed their abortion laws does not support this concern. Evidence from Victoria, Australia suggests a downward trend in the number of abortions happening for ‘maternal psychosocial reasons’ above 20 weeks since decriminalisation. It is noted that a reason for this trend could be down to availability of services and the willingness of providers to provide abortions after 20 weeks, but that decriminalisation did not directly increase the incidence of abortion.^[209]

The RCOG reports that most women make a decision and access abortion services quickly after finding out about a pregnancy that is unwanted. In 2024, 98.8% of abortions in Scotland were carried out below 18 weeks' gestation.^[210] In 2020 and 2021 when non-urgent sexual and reproductive health services were seriously reduced due to the Covid pandemic allowing faster access to abortion care, 28.8% (in 2020^[211]) and 32.2% (in 2021^[212]) of abortions in Scotland were done before 6 weeks gestation. In 2023 and 2024 this percentage had fallen to 16.9% and 18.1% respectively as waiting times for abortion care rose.^[213] In line with the Group’s earlier conclusions, it believes that abortion should be available as early as possible - something which is likely to be supported by an improved legal framework - but also as late as necessary.

7.3.2 Concealment of Birth

Significant evidence was received from legal academics Mary Neal and Jonathan Brown, who laid out the issues with the Concealment of Birth (Scotland) Act 1809 which makes it an offence for a woman to “conceal” her pregnancy if she does not request help during childbirth and the child dies.

The Act was passed when there was a concern that pregnancies were being concealed in order to prevent it being discovered that a woman had become pregnant outside of marriage. In 1663, the courts in Scotland introduced an evidentiary presumption that ‘where a woman had concealed her pregnancy and gave birth in secret, she had murdered the child born of that secret pregnancy’.^[214] As a result, the Crown did not have to prove murder, of even that the child had been born alive – simply that the woman had been pregnant and concealed the birth.

That stigma (and therefore the concern which lay behind the Act) is an anachronism in modern Scotland. The Act however still criminalises women who may be in vulnerable situations and unable to disclose to their family or their partner they are pregnant because of, for example, domestic abuse, honour-based abuse, or where a woman, particularly a younger woman or girl, is genuinely unaware she is pregnant. Non-disclosure of a known pregnancy may be an active act or a form of denial, sometimes arising from mental health conditions or from a learning disability. Similarly, under the 1809 Act, a woman who chooses to give birth without medical care (known as “free birthing”) may be criminalised, which prevents women from making decisions about their own bodies and their own care while pregnant.

Dr Neal and Dr Brown also raised an important concern that this law is inequitable in applying only to women. This creates a unique situation for women whereby the normal presumption of innocence has been apparently suspended, in that an inability to prove a different and more serious crime (murder of a child) has led to the creation of an offence (concealment of birth) that avoids the same evidentiary burden. Dr Neal and Dr Brown’s submission referred to archival research they had undertaken which indicates that between 1809 and 1900, there were more than 300 prosecutions of this statutory offence.^[215]

It should be noted that this offence is distinct from that of failing to register a birth (an offence under s53 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965, as well as any offence related to actions taken to end or contribute to ending the life of a living child, including homicide, culpable homicide, or neglect.

7.3.3 Offences for providers

Unlike other health services, abortion is commonly regulated to varying degrees through the criminal law in addition to regulation under general provisions of healthcare law. This has an impact on the rights of women and can have a chilling effect (e.g. suppression of actions due to fear of reprisals or penalties) on the provision of quality care. For this reason, the Group agreed that clear, accessible and rights-based law and policy must be part of ensuring a safe, accessible environment for the provision of abortion services. This is consistent with advice from the WHO, which recommends full decriminalisation of abortion, including for providers in their 2022 Abortion Care guidelines, stating that criminal penalties for abortion create barriers to safe care, violating human rights.^[216]

Dr Neal and Dr Brown note that the prosecution of doctors is rare and limited to cases where they have acted outwith professional norms, more like a ‘backstreet’ provider. The majority of the examples cited are unreported, pre-date the 1967 Act, and frequently involve cases where the woman has died or been injured, insufficient consideration was given to patient safety, or where providers acted secretly or colluded in crime. One example was given from 1968, a year after the Act was introduced, where the doctor acted outwith the provisions of the Act. Conversely, it was explained that where physicians acted with a therapeutic motive, which could include ‘social’ considerations, if they were prosecuted for ‘procuring abortion’ they were acquitted if the evidence showed they had acted professionally and without a ‘mercenary motive’.

However, while prosecutions may be rare, the Advisory Group reported views from clinicians from across the UK, including in Scotland, who suggest increased public awareness of legal restrictions has led to a ‘climate of fear’ regarding processes within abortion care services and that prosecutions are contributing to these fears.^[217] This was confirmed by the BMA, which suggested that criminal law may deter healthcare professionals from providing lawful abortion services, based on the current legal framework, and that this restricts services for women who require them.

A very different view was offered by Christian Action, Research and Education (CARE) for Scotland, who argued that any person involved in an abortion that is not lawful, should be considered as committing an offence, including healthcare professionals. They also suggested that in any future law on abortion, criminal proceedings should be brought only with the agreement of the Lord Advocate.

Other stakeholders made specific points regarding the need for robust regulation regarding abortion medication. The Royal Pharmaceutical Society (RPharmS) explained that it was important that providers have robust policies and procedures in place to ensure the safe and secure handling of all of the many medicines classified as hospital-only and prescription-only medicines (POM). Further to this the RPharmS believe the illegal distribution of these medicines can pose a significant risk to public health and undermine the healthcare system.

RPharmS added that professional standards for hospitals and approved places are within the remit of Healthcare Improvement Scotland (HIS) and pharmacists and pharmacy technicians employed in approved establishments and hospitals that are involved in the provision of abortion services are regulated by the General Pharmaceutical Council. RPharmS state that it is essential for these professional standards to be at the highest level to maintain safety and integrity of services.

The Medicines and Healthcare products Regulatory Agency (MHRA) confirmed that any person who sells or supplies a POM otherwise than in accordance with a prescription in breach of Regulation 214^[218] of the Human Medicines Regulation 2012 commits an offence under Regulation 255(1)(a).^[219] If the medicine is sold in an unlicensed generic version of a POM, then this may also constitute an offence of selling or supplying an unlicenced medicine under Regulation 46(1)^[220] of the regulations.

The MHRA confirmed that the 2012 regulations are limited to conduct that takes place in the UK. As such, if a person sent abortion medication from, for example, France into the UK, they would commit no offence under UK law, however they may commit an offence in France. Prescriptions for POMs issued by a member state of the European Economic Area (EEA) can be legally dispensed in the UK if the prescriber is from a profession which is recognised as legally entitled to issue a prescription of that kind in the country in which the prescription is issued.

Furthermore, the 2012 Regulations offer an exemption from the medicines importation prohibition in Regulation 17^[221] where a person imports a medicinal product for administration to themselves or to any other person who is a member of that person’s household. The Group recognises that the regulation of human medicines is reserved to Westminster, so did not consider this aspect of the legal landscape further.

The Group also considered existing professional sanctions that can be applied to healthcare professionals providing abortion services. The General Medical Council (GMC) regulates doctors in the UK and the Nursing and Midwifery Council (NMC) regulates nurses and midwives. The GMC^[222] and the NMC^[223] can investigate and sanction their respective professionals for misconduct, including issues related to abortion care if there is a breach of professional standards or ethical guidelines, which does not need to be a criminal offence. Both the GMC and the NMC have a range of sanctions depending on the seriousness of the action being investigated, including formal warnings, time limited restrictions to practice, suspension and removal from professional registers required to legally practice in the UK. The Group felt that it was beyond their remit to consider recommendations for changes to disciplinary sanctions and would not make any recommendation to further review or change how these sanctions operate within Scotland.

7.3.4 Procuring abortion through fear, force, or fraud

Multiple stakeholders raised concerns regarding women who may be forced into undergoing an abortion. These stakeholders asked that the Group should consider the topic of coercion, which was also discussed at some length in the counselling section under Pathways. Previous efforts in Westminster to reform the law related to the use of violence and misleading the woman as to the purpose of medication she was given were also discussed within the Group.^[224]

The Group understands that there is no specific statutory offence in Scots law against coercing someone into having (or not having) an abortion. However, such behaviour may fall within the broader legal frameworks set out above, addressing domestic abuse, threatening or abusive behaviour, and common law offences such as assault and threats, depending on the circumstances.

A number of stakeholders suggested that a specific offence of coercion would be helpful, with ARCH (abortion care and recovery helpline, a project of SPUC Education and Research Trust) Trust stating that current laws criminalising domestic abuse require a pattern of incidents, and it also suggested there is inconsistency in how the police view complaints. The submission argued that coercion to end a pregnancy can happen in otherwise ‘safe’ relationships, not being recognised as criminal by the person who is displaying coercive behaviour or the victim themselves. The submission suggested that such an offence would provide an effective deterrent, but also a means of justice if coercion is identified after the abortion procedure. It also suggests that providers should be required to have adequate and effective procedures with support options for the patient if coercion is identified.

Another view provided to the Group suggested that a specific offence be created for criminal acts related to both physical or psychological coercion or deception, using the example of someone secretly adding abortion medication into the food or drink of a pregnant person.

Concerns were raised in some submissions on the number of patients feeling pressured into having an abortion, when they would have preferred to carry on the pregnancy. Evidence provided included a BBC commissioned poll in 2022 that found 15% of women aged 18-44 had experienced pressure to terminate a wanted pregnancy (with no question asked regarding how often this pressure had influenced their ultimate decision). ^[225] The same poll also found a significant incidence of women being coerced to conceive or to continue pregnancies.

A study produced by two self-described Pro-Life research centres in the United States of America was raised in one submission that found 61% of 226 women between the age of 41-45 had experienced pressure to end a pregnancy from people or circumstances.^[226] From the sample, 38% of respondents reported pressure from male partners, 18% from other people such as friends or employers and 16% from family members. Unfortunately, it is not possible to disentangle in this study actions which would rise to the level of coercion from a broader sense of pressure. Abortion providers in the Expert Group noted that women rarely have one single reason for choosing abortion, but that wider circumstances including finances, relationships, and time of life often play a role in the choice to end a pregnancy which a woman may have, in other circumstances, opted to continue.

A number of national Women’s Aid organisations across the UK and wider violence against women organisations in Scotland, including Rape Crisis Scotland are opposed to a new offence on reproductive coercion. They argued that the criminal justice system lacks the gender and domestic abuse expertise to safely manage violence against women, coercion, and trauma. They consider that a new offence – however well intended – has the potential to cause harm. These organisations cited research by McKenzie et al^[227] which sets out many of the complexities for a truly trauma-informed response for both women forced to abort a pregnancy and women forced to parent. The Advisory Group of reproductive rights, women’s and equalities organisations also oppose a new offence for reproductive coercion on grounds of gender equality and intersectionality, noting that experts in domestic abuse have shown such an offence would be unworkable in practice. They argued that there is a lack of intersectional gender competence across the criminal justice institutions, as well as systemic sexism, racism, and other forms of discrimination, which would likely act as barriers to justice for women. The Centre for Reproductive Rights also advocate against new criminal offences related to abortion, including coercion, where existing law can be applied. Their concerns include the exceptionalising of abortion and the potential for new law to be used as a different means by which to ‘police’ women.

Importantly, Scottish Women’s Aid (SWA), Scotland’s national domestic abuse organisation, strongly oppose a new specific offence on abortion coercion. They are clear that the best and most trauma-informed intervention in abortion care would be a routine enquiry assessment that would be delivered by a trained healthcare professional. SWA believe that coerced abortion is already covered under Scottish legislation, such as the Domestic Abuse (Scotland) Act 2018, and correspondence between SWA and COPFS confirmed that such cases would be prosecuted in the High Court. SWA strongly believe that criminal offences would not bring justice for women, rather that, in line with existing criminal offences and the experience of abuse victims interacting with the police, the risks of further trauma far outweigh any potential benefits.

7.4 Conclusions and Recommendations

The Group heard from faith-based and anti-abortion groups that criminalisation acts as a deterrent. The evidence does not support this claim. The Group agrees with the WHO that restricting access to, or criminalising abortion does not prevent it occurring. When a pregnant woman is desperate to avoid childbearing, she will take desperate measures. Previously in this report, it was noted that abortion was commonplace before the 1967 Act, even when it carried the risk of imprisonment (and serious injury to health or death). When abortion is illegal, unsafe abortions happen and increase maternal mortality and morbidity. A US study that examined the association between state abortion policy contexts and maternal death found that states with a higher number of abortion-restricting policies had a 7% increase in total maternal mortality compared with states with more liberal policies during the years 2015-2018.^[228] Since Roe v. Wade was overturned, concern has been expressed that restricting access to abortion in many US states will result in measurable increases in maternal mortality particularly among poor women and women of colour.^[229] International data further suggests that a reduction in the incidence of abortion is more effectively achieved through improving access to effective contraception.^{[230], [231]}

The Group therefore considered a framework that is protective of women and supportive of the provision of safe abortion care, rather than one designed to pursue what it believes to be the ultimately illusory goal of using criminal law to delay, deter, or limit the ability of women to access abortion care.

One concern raised by the Group was the limitations on innovation which had been in place as a result of the Abortion Act 1967 – such as preventing the home use of abortion medication (as was the case in much of the rest of the world) until the minister specifically approved it. As noted in the pathways section above, this was not seen as necessary for the safe provision of care in new legislation. The Group discussed potential future innovation in abortion care, specifically the use of contragestive medication - a type of fertility control that can prevent gestation, either by preventing implantation of a fertilized egg or by causing the uterine lining to shed soon after implantation.^[232] The Group was keen to ensure that any offences laid out in new legislation did not restrict the innovation of care in this way.

7.4.1 Offences in relation to women having abortions

The Group discussed the position of those who act with regard to their own pregnancies. While recognising concerns expressed by some stakeholders that offences may provide some form of deterrent, there is a lack of evidence to support this position. Indeed, the WHO report that the legal status of abortion ‘has no effect on a woman’s likelihood of seeking abortion but it dramatically affects her access to safe abortion’.^[233]

The WHO and numerous human rights bodies support full decriminalisation of abortion for the woman acting in relation to her own pregnancy. Chapter 1, section 1.3.1 of the WHO Abortion care guideline sets out the rationale^[234] and Web Annex A of these guidelines lists the human rights principles and the statements that apply to abortion.

The Group agreed that imprisonment offers a particularly archaic and unjustifiable response to self-induced abortion, as there is no case for needing to protect the wider public from those seeking abortion. It was noted that criminal law represents the most onerous, intrusive and punitive of state powers and it is reasonable to assume that it should be invoked only where it offers a necessary and proportionate means to achieve an important objective, with the onus on those who would seek to deploy it to demonstrate that these criteria are met.^[235],^[236], ^[237]Moreover, any such demonstration should be subject to particularly robust scrutiny in the abortion context, given the significant considerations of gender equality, particularly for marginalised groups of women, autonomy, and reproductive health that point powerfully in favour of liberal access to safe, legal services.

In considering this, the Group recognised in particular that those who might try to have an abortion outwith the terms of the law were often likely to be vulnerable and/or in a desperate situation, increasing the risk that criminalisation might deter them from seeking necessary medical help following any complications and put their health at greater risk. Even though it is extremely rare for women in Scotland to be prosecuted for offences relating to abortion or under the Concealment of Birth Act, the Group recognised that it was still a possibility, and cases have been brought forward in recent years.

Further, the recent increase in prosecutions in England and Wales demonstrates the need to future-proof this area of the law. Even the potential for prosecution or the process or prospect of facing questioning and investigation by the police could be very traumatic, even if this did not ultimately lead to any charges or prosecution. This is also the case for women who are ultimately found to have undertaken no action to end their pregnancy, but where suspicion has led to police involvement with cases involving premature labour or stillbirth. The Group is concerned by the recent guidance issued by the National Police Chiefs’ Council regarding abortion and stillbirth.^[238]

Until the law on abortion is reformed in Scotland, there is potential for police investigations that are extremely distressing for women. It is unclear whether the NPCC guidance would be adopted in Scotland, but methods recommended (including seizure of technological devices, and use of private medical records) have been roundly condemned by health and human rights bodies. Cases often take many years to go to court, as well as garnering significant media interest, causing demonstrable harm to women.^[239]

The Group therefore agreed that neither imprisonment nor other legal sanctions were necessary or appropriate for individuals having an abortion under any circumstances. Given the lack of clarity under the common law, the Group believe it is necessary that any new legislation specifies this position.

Recommendations

1. There should be no offences for anyone ending their own pregnancy and any common law offences should be repealed.

7.4.2 Concealment of Birth

The Group considered the evidence received regarding concealment of birth and was particularly concerned by evidence that its existence and use is discriminatory, creating a lesser evidentiary burden that relies on a historical assumption that a woman who has concealed the birth of a child who is now dead or missing is guilty of an offence. It noted the range of other offences that may be committed by someone who conceals a birth, which appear adequate to address any public health or administrative concerns arising from concealment (including failure to register a birth). It also considered the low levels of prosecutions under the law, with only one taking place in the last 20 years itself suggesting that the offence is poorly aligned with modern values.

The Group concluded that this offence is outdated, unnecessary, and risks criminalising women – and women alone – at their most vulnerable.

The Group therefore recommends repeal of the Concealment of Birth (Scotland) Act 1809 and abolition of the crime of concealment.

Recommendations

1. The Concealment of Birth (Scotland) Act 1809 should be repealed, and the crime of concealment should be repealed.

7.4.3 Healthcare Staff

The Group had concerns that maintaining criminal sanctions for healthcare professionals could lead to the continued ‘chilling effect’, stigmatisation and exceptionalisation of abortion, which can deter staff from working in abortion services.^[240] It also noted that the general regulatory framework that governs healthcare in Scotland offers a range of other measures designed to address unsafe, inappropriate, or non-consensual practice, and that these measures are deemed sufficient to ensure patient safety and safeguarding in other areas of healthcare practice.

Clinicians on the Group emphasised that, in line with the Abortion Act 1967, staff who provide services in good faith should not face concerns about risks of prosecution. It was noted that, under the common law, staff would not be likely to be prosecuted in cases where they acted in good faith and any breach of the law was not deliberate, However, the complexity in the law could lead to uncertainty regarding the scope for prosecution among healthcare providers and among prosecutors. This in itself may have a chilling effect.

The Group agreed that in the interests of clarity, any new legislation should remove common law abortion offences, and any offences should be set out specifically within a new act, if not adequately dealt with by existing legislation.

It was noted that, regardless of any criminal offences, there could still be potential for a complaint about a healthcare professional to be considered by either the General Medical Council (GMC)^[241] or Nursing and Midwifery Council (NMC)^[242] - as there is for issues arising in the context of other healthcare interventions. Both these bodies have powers to investigate and impose sanctions, up to and including deregistration where it is determined that a healthcare professional’s misconduct was so serious that they are no longer fit to practise. However, the GMC indicated that they did not believe they were best placed to enforce any law around abortion that was not necessary for patient safety or clinical best practice (such as specific grounds for abortion, or time limits).

The Group therefore concluded that it should be an offence to provide an abortion outside the terms set out in the legislation, except when done in good faith to save the woman’s life or prevent grave permanent injury to her mental or physical health. The Group considered that the most appropriate penalty for this would be similar to that set out in the Abortion (Northern Ireland) (No.2) Regulations 2020 – a fine, and where proceedings may be brought only by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.

Recommendations

1. The common law offences for registered healthcare professionals who provide an abortion(s) outwith the terms of abortion legislation should be repealed.

2. The Scottish Government should consider how compliance with the provisions of revised abortion legislation will be enforced. The Group proposes two options relating to offences for healthcare staff:

a) The Scottish Government may consider that existing law around healthcare, including the registration and regulation of healthcare professionals, is sufficient to appropriately enforce the law, and thus no specific statutory penalty should be created; or

b) A new specific offence should be included for any healthcare professional who provides an abortion outwith the terms of the legislation. This should reflect provisions within The Abortion (Northern Ireland) (No. 2) Regulations 2020 where the maximum penalty is a fine, and prosecution should only be brought by, or with the consent of, the Lord Advocate

3. It is also recommended that the Scottish Government should ensure that any new offences would not prevent innovation in contraceptive and abortion care, including the use of new medications, or the development of contragestives.

7.4.4 Abortions provided by someone who is not a registered Healthcare Professional

The Group considered that it was important to ensure that abortions continue only to be provided by registered healthcare professionals who are appropriately trained to provide abortions. This was important to ensure that any change in law did not reduce the high clinical standards for provision of abortion care in Scotland.

The Group considered that any person who is not a 'healthcare professional' (as defined by the Group) who provides abortion services should be guilty of an offence under either existing or new legislation.

The Group notes that provision of abortion medications would already be restricted by the Medical Act 1983^[243] and the Medicines Act 1968. In terms of surgical abortion, unqualified provision would likely be covered by the criminal law of assault. If this is already an offence the Group does not see any need for a separate offence to be created; however, if that is not the case, then a new offence should be created.

Recommendations

1. Any person who is not a 'healthcare professional' (as proposed by the Group and defined in Regulations) providing abortion services should be guilty of an offence. If this is already an offence the Group does not see any need for a separate offence to be created; however, if that is not the case, then a new offence should be created.

2. Any new offence should be carefully considered so as to avoid prosecuting anyone helping someone to access an abortion in good faith, such as a mother helping her daughter. Where someone, for example, provides abortion as a business, this should be an offence.

7.4.5 Procurement of abortion through fear, force, or fraud

The Group considered the existing offences which might apply in a case where someone was coerced, intimidated, or misled into having an abortion. While noting that at least one of these offences might apply in most cases where the acts were carried out by a partner or ex-partner, it was recognised that existing offences would not apply in all cases.

Reproductive coercion

“Reproductive coercion is ‘behaviour that interferes with the autonomous decision-making of a woman, with regard to reproductive health. It may take the form of birth control sabotage, pregnancy coercion, or controlling the outcome of a pregnancy”.^[244] Academic literature suggests that this has been a neglected area of study within gender-based violence, and it is only now that Governments and other stakeholders are acknowledging the complex role such behaviour plays.^[245]

While coercion in the context of abortion is important to acknowledge, studies on reproductive coercion suggest that it is far less common than other forms of reproductive coercion, including coercion to become pregnant or continue a pregnancy:

Pregnancy promoting reproductive coercion (e.g. pressure to become or stay pregnant) is more common than pregnancy preventing abuse (e.g. abortion coercion). Yet the regulation and policy framework has developed with more attention on risks for those seeking abortion with little attention to the issues for maternity care.^[246]

While some stakeholders suggested that coercion in the context of abortion should be explicitly criminalised, it is our recommendation that coerced abortion should not be singled out from the wider issue of reproductive coercion.

The Group acknowledged that this is an issue of significant importance to a range of stakeholders and suggests that the Scottish Government could consider this further in any future consultation. The Group identified two options for dealing with all forms reproductive coercion.

35. The Group’s position is that existing offences would be likely to be sufficient to capture the most serious cases where coercion can be proven and that, given the complexity of coercion and the need to distinguish it from pressure or influence from others, it would realistically be difficult to prove in most cases. Feedback from Scottish Women’s Aid raised serious concerns about the additional trauma to women of pursuing action without consent or a complaint from a victim and therefore, the Scottish Government could decide that no new offence is required.

36. However, if the Scottish Government decides that existing offences are not sufficient, a new specific criminal offence relating to reproductive coercion of all forms could be created. Given Scottish Women’s Aid’s position – if this course of action is pursued, careful thought should be given as to how best to balance the offence in terms of policy goals and the experience of individual abuse survivors.

Whilst the Group noted that Health Boards already have procedures in place to identify and support anyone who may be being coerced during pregnancy, it felt that an updated Scotland specific clinical abortion care guideline should cover coercion to seek to ensure all providers have robust procedures in place to detect signs of coercion and prevent abortions from proceeding in those circumstances. It also believes that reproductive coercion should be included in routine safeguarding training for healthcare professionals.^[247]

Recommendations

The Group proposes two options in relation to coercion:

a) The Group’s position is that existing offences would be likely to be sufficient to capture the most serious cases where coercion can be proven and that, given the complexity of coercion and the need to distinguish it from pressure or influence from others, it would realistically be difficult to prove in most cases. The Scottish Government could therefore decide that no new, specific offence is required.

b) However, if the Scottish Government decides that existing offences are not sufficient, a new specific criminal offence relating to reproductive coercion of all forms could be created. If this course of action is pursued, careful thought should be given as to how best to balance the offence in terms of policy goals and the experience of individual abuse survivors.

In either option, any clinical guidelines on abortion could provide recommendations to ensure all abortion providers have robust procedures in place to detect suspected coercion and support those involved.

7.4.6 Offence relating to ending a pregnancy without consent

The Group also considered carefully whether there should be a specific offence of ending a pregnancy without consent through illegal acts perpetrated against the pregnant woman. It should be noted that this section does not refer to the taking of appropriate consent in a healthcare setting, which the Group believes is appropriately governed by existing healthcare law or regulation.

In some cases, an individual might attack a woman either deliberately with the aim of ending her pregnancy or with reckless disregard as to the potential for pregnancy loss. Alternatively, they might deliberately administer abortifacient medication to a woman without her knowledge or consent, bringing about the end of her pregnancy, as in the recent case of HMA vs Doohan. Doohan pled guilty to an offence under the common law of procuring an abortion and was sentenced to ten years and six months imprisonment.^[248]

Changes to the common law recommended by the Group would prevent future similar crimes being prosecuted under the law of procuring an abortion. Instead, they would be left to general common law offences such as assault or threats or poisoning. The Group noted the importance of criminal law properly reflecting the harm done to a woman who has lost a wanted pregnancy.

Therefore, the Group recommends that the Scottish Government should consider further whether a specific, new offence should be created to fill the gap caused by repealing the common law offence, recognising that this should – if deemed necessary – be framed as a crime against the woman concerned and applicable only where acts are committed by a third party.

Recommendations

1. The Scottish Government should consider if there should be an offence of a third party undertaking criminal acts against a pregnant woman which intentionally or recklessly causes the end of her pregnancy without her consent.