An unborn child with Down’s syndrome, even though very likely to survive normal delivery at the end of the pregnancy, may lawfully be killed in the womb up to the time of birth. It came as a nasty shock to many people, by no means only anti-abortion campaigners, to hear that this is the law of England and Wales as upheld in a recent High Court case. Without Down’s syndrome or some other handicap affecting the child, such an act of intentional killing would be a serious criminal offence. This is clearly tantamount to discrimination against people with Down’s syndrome. But not, the High Court held, unlawful discrimination.

The court refused to declare the relevant law, the Abortion Act of 1967 as amended by the Human Fertilisation and Embryology Act of 1990, as being contrary to the European Convention on Human Rights and the Human Rights Act. In law, foetuses do not have human rights. They do have certain safeguards, however, as set out in the 1967 Act. Since the law was amended in 1990, Britain’s fairly liberal abortion law draws a line at 24 weeks into the pregnancy, after which medical opinion is that the foetus becomes “viable”, that is to say theoretically capable of surviving albeit with medical support.