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A P P E N D I X A T H E U K A B O RT I O N L AW P R I O R T O T H E A B O RT I O N A C T 1 9 6 7 Offences Against the Person Act 1861 Section 58 established that it was a felony for anyone to intentionally cause a miscarriage, with a maximum penalty on conviction of life imprisonment.§58: Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable .l.l. to be kept in penal servitude for life. Section 59 established that it was a misdemeanor punishable by imprisonment for anyone to provide the means of procuring a miscarriage, even if the woman was not in fact pregnant.§59: Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable .l.l. to be kept in penal servitude. Infant Life (Preservation) Act 1929 Whereas born children, and those who were unborn, had the protection of the law, the status of children in the process of being born was uncertain. The Infant Life (Preservation) Act 1929 established the felony of “child destruction” for anyone who intentionally caused the death of “a child capable of being born alive.” Twenty-eight weeks of pregnancy was regarded as prima facie 335 proof that a child was capable of being born alive. The 1929 Act provides an exception if the act causing the death of a child is performed “in good faith for the purpose only of preserving the life of the mother.” It should be noted that the 1929 Act did not apply to unborn children below the age indicated as being capable of being born alive. The 1861 Act continued to prohibit all earlier intentional miscarriages with no exception to preserve the life of the mother. (1) .l.l. any person who, with intent to destroy the life of a child capable of being born alive, by any willful act caused a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this Act, evidence that a woman has at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at the time pregnant of a child capable of being born alive. Case Law: ‘R v Bourne’ [1938] 3 All ER 615 A London gynaecologist, Dr Aleck Bourne, performed an abortion on a 14year -old girl who had apparently been gang-raped by soldiers. He reported the abortion to the police and was charged under section 58 of the Offences Against the Person Act 1861 with performing an illegal abortion. The trial judge, Mr Justice Macnaughten, informed the jury that the exception to save the mother’s life provided in the Infant Life (Preservation) Act 1929 should also be read back into the Offences Against the Person Act 1861, and in his direction to the jury he suggested that allowing abortion “for the purpose of preserving the life of the mother” could be interpreted broadly: Those words ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of...

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