North Korean defectors face forced abortion on return to country

Forced abortions are an on-going human rights abuse in North Korea, particularly for repatriated defectors, according to experts interviewed by Fox News.

For female defectors from North Korea and are subsequently forcibly returned to the country after escape attempts, if they are found to be pregnant, they are frequently subjected to forced abortions and sometimes infanticide shortly after birth

Olivia Enos, Senior Policy Analyst for Asian Studies at The Heritage Foundation said:

“Terrifying reports from female defectors depict undergoing forced abortions after they fled to what they thought was freedom in China, only to be repatriated back to North Korea by authorities in China,”

“Other women from North Korea recount having aborted babies born alive or giving birth in ordinary prison camps only to have border guards smother or drown their babies before their very eyes.”

A 2014 United Nations Human Rights Council report found that “blood tests are routinely conducted on all repatriated women”. Those found to be pregnant are made to endure abortions through a number of methods, including “inflicting trauma to the uterus through physical force to induce expulsion such as beating, kicking” as well as “forcing pregnant women to engage in heavy physical work to induce pre-term labor or premature separation of the placenta from the uterus”.

In cases where a mother is permitted to carry her child to term, the report also pointed to prison guards then suffocated or drowned the newborn.

The majority of forced abortions and infanticides are performed on mothers and their children, repatriated from China. “Forced abortions are carried out on the premise that all repatriated pregnant women could be carrying babies conceived by Chinese men. The women are not asked what ethnicity the father of the child is,” the UN report states

With little access to North Korea, up to date data is hard to attain but there is little reason to think that the situation has improved significantly.

Spokesperson for Right To Life UK Catherine Robinson said:

“The barbarity being report in North Korea is shocking. Forced abortion is not restricted to North Korea however and is a terrible evil which we must work to end wherever it happens.”

Abortion already underway as the Court of Appeal overturned forced abortion ruling

Documents from the Court of Appeal which ultimately stopped a state enforced abortion from taking place last month, revealed that the first stage of a three day abortion procedure was being carried out during the Court hearing.

At the end of June, Justice Nathalie Lieven ruled that forcing a woman with a moderate learning disability to have an abortion against her will was in her “best interests”. In a last minute hearing the next working day (Monday 24/06), three judges in the Court of Appeal overruled this decision, forbidding doctors from performing an abortion on this woman.

The full ruling of the Court of Appeal has now been released and it reveals that the woman was already undergoing a “pre-operative assessment” for the abortion, which was in fact being carried out during the hearing at the Court of Appeal.

The “pre-operative assessment” formed what would have been part of a three day invasive process which would ultimately have ended the life of her baby.

The ruling also reveals that the judges overturned Justice Lieven’s decision because she gave insufficient consideration to the wishes and feelings of the pregnant woman, as well as the views  of the woman’s primary carers – including her own mother – who believed it was in her best interests not to have an abortion.

The Court of Appeal judge, Lady Justice King said Justice Lieven “made no mention of AB’s [the woman’s] wishes and feelings or of the views of CD [the woman’s mother], the social worker or the Official Solicitor. This was, in my opinion a significant omission.”

The Court of Appeal also brought to light the “well established” principle that “the court does not take into account the interests of the foetus but only those of the mother”.

Clare McCarthy from Right To Life said:

“Between the original ruling and the decision from the Court of Appeal, the life of the 22-week-old baby hung in the balance and was literally hours away from being aborted. In fact, the pre-operative assessment for the abortion was already underway. If this last-minute hearing did not take place when it did, this baby would not be alive.

“As the ruling from the Court of Appeal made clear, the right to life of the baby held no weight in court, as the “the court does not take into account the interests of the foetus but only those of the mother”. This is despite the fact that the baby, this late in gestation, would in some cases have been able to survive outside of the womb.

“Although it is a major relief that the Court of Appeal came to this decision, and that the forced abortion did not take place, it is a chilling case that demonstrates the power the court holds over life and death.

Forced abortion: is it really in anyone’s “best interests”?

Last week the Court of Appeal unanimously overturned a ruling forcing an abortion on a 24-year-old, mentally disabled woman (hereafter, AB), by Justice Lieven in the Court of Protection. The original judgment was released this week and it is worth examining to understand how we almost arrived at that horrific point where the state can force one of its own citizens to have an abortion. There is a lot to say but I would like to consider just two points of interest: the woman’s disability and the application of the “best interest” test. 

Firstly, in considering the “best interests” of AB, Justice Lieven comments that she has “to focus on AB as an individual and her best interests, not societal views in termination [nor] the rights of disabled people in general.” Yet disability cannot simply be disregarded in favour of focusing on an AB as ‘an individual’; her disability is a fundamental part of who she is and ironically the crux of the judgment rests on this.  There are specific human rights obligations which arise here.

In 2018, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD) released a joint statement mapping out a human rights based approach to the sexual and reproductive health needs of women with disabilities. Particular emphasis is rightly given to the obligation of a state to ensure that women with disabilities are protected against forced abortion.  States should also ensure that women have access to evidence-based and unbiased information.

While the Justice believes AB cannot fully understand the decision at hand here, questions should be asked about the nature of information given to her. The Barrister leading the NHS legal team in this case, told the Court of Appeal that AB “…was told she would go to sleep. She would have an operation and when she woke up the baby would no longer be in her tummy. But she would get a new doll.” This is both patronising and deliberately misleading information. The Justice herself said that “as the pregnancy has developed AB has more understanding that she is pregnant, and that means she has a baby inside her, and that it will be born.”

CEDAW and CRPD are clear that women should not be forced to undergo an abortion against their will, or without their informed consent, though I appreciate that even with unbiased and evidence based information, by virtue of her disability,  AB still might not be able to give informed consent.

All parties were unanimous in their agreement that AB did not have capacity and therefore the judgment focused on the application of the ‘best interests test’ to determine the best course of action.  The purpose of this test, as summarised in Aintree University Hospital v [James], is to focus on the individual and not just medical conduct.  A ‘best interest test’ must contain “a strong element of substituted judgment” taking into account: past and present wishes/feelings of the person, other factors he would consider, beliefs and values likely to influence their decision if they had capacity, and full consultation with carers and other interested parties. Justice Lieven feels weight cannot be given to AB’s feelings/wishes as she considers them unclear and subject to change. 

However, she is clear in her judgment that AB “is happy that she is pregnant and likes the idea of having a baby. I think that it shows if she was making the choice, at this moment she would not want a termination.”  

Whilst it is felt she cannot make ‘the choice’, the most surprising element of this judgment for me is that no weight is given to the opinions of carers and interested parties.  Alongside AB, her mother (a midwife by profession), her social worker and the official solicitor strongly felt the continuation of her pregnancy was in her best interests. Although the local authority adopted a neutral stance, they still laid out their plans for care of the child should AB continue with her pregnancy.

If the purpose of the best interests’ test is to focus on the individual and not solely medical conduct, why was only medical opinion given weight in this case? And why was there so little apparent focus on “the individual”? The Supreme Court is clear that “decision-makers must look at…welfare in the widest sense, not just medical but social and psychological…and they must consult with others who are looking after [them]…in particular for their view of what [their] attitude would be.”

If Justice Lieven feels harm is inevitable whichever path is taken here, surely the opinion of those who have worked closely and extensively with AB over a number of years are therefore best positioned to advocate for her and make this judgment.  Consideration, yet no weight, was given to their views and in my opinion, this was a dangerously narrow and partial application of the ‘best interests’ test.

It is difficult to fully analyse just what has gone on here, the details are still incomplete and the full picture will not be clear until the Court of Appeal judgment is released. However, it is a judgment riddled with contradictions and with little regard for the rights of disabled people. The Justice herself recognises how immensely intrusive a forced abortion would be and the draconian nature of a state ordered termination on a non-compliant woman, yet proceeds in this manner anyway, preferring to rely on tentative psychological speculation as opposed to the voices of those who, professionally and personally, are best placed to make this decision.

Thankfully overturned, this judgment feeds into wider debates about the role and reach of the State in such medical decisions and questions have to be asked as to what weight, if any, Courts are giving to those closest to the person in question. We must continue to be vigilant as this area of law develops, as forced abortion might just be the tip of the iceberg.

All opinions expressed here are the author’s own and do not necessarily represent the views of Right To Life UK.

All opinions expressed here are the author’s own and do not necessarily represent the views of Right To Life UK.

Press release: Forced abortion judgement released – 22 week old unborn baby considered “not a physical presence”

5 July 2019 – The full judgement outlining Justice Lieven’s decision to order a 24 year old woman with a “moderate learning disability” who was 22 weeks pregnant to have an abortion has been released. The hearing took place in the Court of Protection on 21st June, however the ruling was later challenged in the Court of Appeal on the 24th June and was successfully overturned.

Justice Lieven’s judgement from the Court of Protection has now been released. The ruling discusses the woman’s ‘best interests’, her capacity to consent to abortion, as well as the role the grandmother, a former midwife, might play in raising the child. In all 63 paragraphs of the ruling however, no consideration or weight is given to the rights of the 22-week-old unborn baby. 

The court judgement noted: 

  • Paragraph 18 –  The pregnant woman (referred to as AB for reasons of anonymity) understood that she “has a baby inside her, and that it will be born”. She could see her stomach grow and could feel the baby move. 
  • Paragraph 22 – NHS Trust witnesses thought that the late-term abortion would be “less traumatic for her than the baby being taken away” however the AB’s mother, who the Justice Lieven noted “knows her best”, thought that AB would potentially be “very upset about the loss of the baby”.
  • Paragraph 35 – Previous case law is cited concerning an abortion for a 14 year old girl. The judge in that case writes that such an “immensely invasive procedure” as a forced abortion, could not be justified to be ordered by the court “unless there was powerful evidence that allowing the pregnancy to continue would put the mother’s life or long-term health at very grave risk.” The ruling states that AB is “young and physically healthy” (p.48) and any risk to postpartum psychosis was speculative and it would be “almost impossible to assess the likelihood of this happening” (p. 24).
  • Paragraph 43 – AB’s social worker said that she believed it was in “AB’s best interests to have the baby”. 
    Paragraph 46 – Justice Lieven notes that she is “acutely conscious of the fact that for the state to order someone to have a termination, where it appears that they do not want it, is immensely intrusive”. 
    Paragraph 52 – Despite the fact that Justice Lieven accepts that AB “probably will suffer some trauma or upset from the termination” she thinks that it “will be a lesser impact than having the baby”.
    Paragraph 56 – Justice Lieven makes a differentiation between a “pregnancy” of 22 weeks gestation and a “real baby”, saying that if AB gives birth, it will be a “real baby” but while she is still pregnant it is a “pregnancy”, seemingly not a “physical presence”.
    Paragraph 60 – Justice Lieven believed that AB “would like to have a baby in the same way she would like to have a nice doll”.

Spokesperson for Right To Life UK, Clare McCarthy has said:

“A few very worrying things ring through from this judgement, one especially resounding thing was that the rights of the 22-week-old baby in the case were not considered in any way, or carried no weight at all in the judgement. A baby this late in gestation would in some cases be able to survive outside of the womb and yet Justice Lieven dismisses the baby as “not a physical presence”. 

“Despite the fact that the woman, supported by her mother and her social worker, made clear that she wanted the baby (p.26), and that Justice Lieven admitted that a court-ordered abortion is “immensely intrusive”, Lieven nonetheless imposed her pro-abortion agenda on this woman by overriding her wishes and ruling that she should be forced to have an abortion. It is a major relief that this ruling has been overturned but it should never have happened in the first instance.

“This ruling was a gross invasion not only on the rights of the pregnant woman but also on the right to life of the unborn child who the mother could feel growing and moving inside her womb.