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  • Print publication year: 2010
  • Online publication date: June 2012

17 - Criminalising Healthcare Choices

from Section V - Regulating Sexuality and Bodily autonomy


Criminal laws have long had something significant to say about regulating the maternal-fetal conflict. Principally, this has been expressed through provisions in the Offences Against the Person Act 1858 and the Abortion Act 1967. However, scientific and technological advances in the field of reproductive medicine, coupled with shifting expectations and moral attitudes, have prompted the creation of various criminal offences designed to prevent science taking us out of our ethical comfort zone. This takes place at a time when the criminal justice system and healthcare are no longer such strange bedfellows (see Erin and Ost 2007). In this chapter we start by considering the state of the abortion debate today, before moving on to consider criminal law's rather ambivalent attitude to surrogacy and its more clear moral misgivings about cloning. We end by considering the compromises criminal law makes in relation to individual requests for assistance in ending their lives.

Reproductive crimes?

Contraception and abortion

Female sexuality is constructed and regulated through a wide variety of social practices. Significant among these are medical practice and laws on various aspects of reproduction: contraception, abortion, sterilisation and surrogacy arrangements. The use of criminal law as opposed to other forms of regulation appears to be unpredictable, if not arbitrary. Abortion is the clearest and historically best established example of control through criminal powers. Historical evidence shows that abortion has existed in practically all societies (Petchesky 1986).

Further reading
Blackford, RussellSlippery Slopes to Slippery Slopes: Therapeutic Cloning and the Criminal Law’ (2007) 7:2 The American Journal of Bioethics63.
Brazier, MargaretSurrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation (Cm 4068 1998).
Coggon, JohnIgnoring the Moral and Intellectual Shape of the Law after Bland: the Unintended Side-effect of a Sorry Compromise’ (2007) 27 Legal Studies110.
Huxtable, RichardEuthanasia, Ethics and the Law: From Conflict to Compromise (Routledge-Cavendish 2007).
Keown, JohnEuthanasia, Ethics and Public Policy: An Argument Against Legalisation (Cambridge University Press 2002).
Lewis, PenneyAssisted Dying and Legal Change (Oxford University Press 2007).
Magnusson, RogerAngels of Death: Exploring the Euthanasia Underground (Melbourne University Press 2002).
Seymour, JohnChildbirth and the Law (Oxford University Press, 2000).
Spencer, John and Bois-Pedain, Antje du (eds.) Freedom and Responsibility in Reproductive Choice (Hart, 2006).
Thomson, Judith JarvisA Defense of Abortion’ (1971) Philosophy and Public Affairs 47.
Tur, RichardLegislative Technique and Human Rights: The Sad Case of Assisted Suicide’ [2003] Criminal Law Review 3.
Warnock, Mary and Macdonald, ElisabethEaseful Death: Is There a Case for Assisted Dying? (Oxford University Press 2008).
Williams, GlanvilleThe Sanctity of Life and the Criminal Law (Stevens 1958).