Leading Article: The right has to remain hers

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The Independent Online
Every few years we are treated to the unedifying spectacle of bewigged gentlemen poring over the rights and wrongs of women's decisions about their bodies. Yesterday three judges in Edinburgh endorsed the right of a pregnant woman to have an abortion, against an attempt by her husband to insist that she continue with the pregnancy, but then told her she would have to wait until another set of learned lords had also had their say.

The Edinburgh Court of Session had been as clear as judges ever are. "Does Scots law confer upon the unborn foetus a right to continue to exist in the mother's womb given that she chooses to exercise her right to terminate the pregnancy under the Abortion Act 1967?" Lord Cullen asked himself, immediately answering: "Scots law recognises no such right in the unborn foetus." Neither as it happens does English law, where the principle has been taken twice already to the House of Lords, most recently in 1987 by an Oxford student who wished to prevent a fellow student from aborting their child.

The Scottish Court of Appeal decision that Lynne Kelly should be allowed to proceed with her abortion was predictable and, indeed, widely predicted. This is not new territory. The 1967 Act has for 30 years been well picked over by lawyers, by cardinals, by "pro-life" pressure groups. Parliament regularly revisits the debate and considers anew its intentions, every now and then making minor adjustments that take into account changes in medical technology and public perception. But as a society we have remained remarkably constant to the humane strategy introduced by David Steel and enacted in 1967.

This is not to say that James Kelly, seeking the right to bring up a child he has fathered, deserves no sympathy. It has been argued, for example, that current law gives him many responsibilities (the duty to pay for the upkeep of any child he fathers whether he wanted the child or not) but apparently no rights. It seems hard. But there are no rights he can be given over a foetus borne by his wife that do not annihilate her rights. If they don't agree (the Kellys' turbulent marriage seems to have made co-operation difficult) any right he was given would be, in effect, a right of veto over her body.

Mrs Kelly, an adult, a mother, a breadwinner (though mainly described by tabloid newspapers as "a cabaret artiste" or "entertainer") has already had to endure a very public pregnancy and desire for a termination. She should not have to go through further agony waiting for yet more legal argument. Since she has already reached the 14th week of pregnancy, further delay risks transforming what would be a routine medical procedure into a complicated and possibly distressing operation.

None of the judges so far involved has given the merest hint that Mr Kelly has a snowball's chance in hell of winning his case. It is a great pity, therefore, hinting somewhat at officiousness, that the judges did not feel able to offer James Kelly their sympathy but firmly refuse him leave to appeal to the Lords.