Engender blog
GUEST POST: The Repeal of the Concealment of Birth Act is Urgently Needed
Earlier this year, we launched our campaign calling for modernised abortion law in Scotland that works for women’s human rights and prevents unnecessary prosecutions. You can read our report here.
Part of the outdated patchwork of laws that restrict women’s reproductive rights is the little-known Concealment of Birth Act. In this blog, expert Dr Emma Milne explores how the Act criminalises vulnerable women and why we need action to create a system that puts women’s needs first.
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The little-known offence of concealment of birth poses dangerous restrictions on the rights of pregnant women and must be repealed as a matter of urgency.
What is concealment of birth?
Concealment of birth is a criminal offence under the Concealment of Birth (Scotland) Act 1809. This statute makes it a crime if a woman:
- does not reveal her pregnancy to other people; and,
- does not call for or make use of help during the birth of the child; and,
- the child dies.
The pregnancy must have developed sufficiently such that there is a reasonable chance that the baby will be born alive. Consequently, women who experience miscarriages (before 24 weeks) and have not told anyone they are pregnant prior to the miscarriage will not have committed the crime.
A woman convicted of concealment of birth can be imprisoned for up to 2 years.
Where did the offence come from?
During the seventeenth century, across the British Isles, there was a preoccupation with unmarried women who were believed to be purposefully concealing their pregnancies to allow them to secretly kill the child to prevent it being discovered that she had become pregnant outside of marriage. Consider that this was a time when pre-marital sex was considered sinful, and women who engaged in it were deemed immoral and “ruined”.
Popular and political concern about such women resulted in a new law being enacted in Scotland in 1690. If a woman concealed her pregnancy, did not call for help during labour and delivery, and the child died, then she was considered to have murdered the child (regardless of whether there was any proof she had actually harmed the baby). The penalty for murder was death.
For understandable reasons, such a harsh approach to women who hid their pregnancy and laboured alone was later repealed. However, the basis of the law – criminalising a woman who do not reveal they are pregnant, call for help during labour, and whose baby dies during or shortly after birth, remains; encapsulated in the Concealment of Birth (Scotland) Act 1809.
Impact of the law
Concealment of birth criminalises vulnerable women who experience crisis pregnancy but also has a chilling effect on all women’s rights during pregnancy. There is a presumption written into the law that but for the concealment of the pregnancy and the woman not seeking assistance with the birth, the child would have survived.
Most women who conceal a pregnancy and labour alone are incredibly vulnerable. These include women living in situations of violence and abuse, in poverty and dealing with issues surrounding substance misuse. The pregnancy causes them a crisis. Imagine a young woman who is terrified to tell her parents or partner she is pregnant because she is fearful of their reaction. In such a situation, the woman may conceal or deny her pregnancy from herself and the people around her. Her denial could result in her body not exhibiting the usual symptoms of pregnancy, such as morning sickness and a growing “baby bump”.
Because of the crisis the pregnancy causes the woman, she does not prepare for the birth. Consequently, when she goes into labour, she is not expecting to deliver a child. Sadly, some of the babies born in such a situation do not survive.
Considering the vulnerability of such women and the crisis that they have found themselves in, is it right they are criminalised for not disclosing they are pregnant and not seeking help to give birth? The injustice of criminalising them is even greater, considering that some of these women may have experienced clinical denial* of pregnancy – meaning they would have been unaware they were pregnant and therefore not capable of telling another person.
But the law also has a chilling effect on women’s rights during pregnancy more broadly. Some women choose not to tell people they are pregnant – it is information about their bodies and lives that they simply do not want others to know. Those women may then choose to give birth without medical care, popularly known as “free birthing”. In England, such behaviour is not a crime. It is incredibly alarming that in Scotland, the same behaviour becomes a crime if the child dies around the time of the birth. In Scotland, concealment of birth essentially mandates that women declare they are pregnant and seek medical care during labour and delivery – an unwarranted invasion into women’s private lives in the twenty-first century.
To protect vulnerable women who experience crisis pregnancies and the rights of all women to make decisions about their own bodies while pregnant, concealment of birth must be repealed.
Dr Emma Milne is Associate Professor in Criminal Law and Criminal Justice at Durham University, UK. She is a feminist socio-legal scholar whose research focuses on criminal law and criminal justice responses to infant killing and foetal harm. Emma is author of Criminal Justice Responses to Maternal Filicide: Judging the Failed Mother (2021).
Guest posts do not necessarily reflect the views of Engender, and all language used is the author’s own. Bloggers may have received some editorial support from Engender, and may have received a fee from our commissioning pot. We aim for our blog to reflect a range of feminist viewpoints, and offer a commissioning pot to ensure that women do not have to offer their time or words for free.
Interested in writing for the Engender blog? Find out more here.
*A definition of ‘Clinical Denial can be found here, https://pmc.ncbi.nlm.nih.gov/articles/PMC3128877/
Why we need to modernise abortion law in Scotland - your questions answered
For too long women in Scotland & the UK have had to settle for a system of abortion law that doesn’t put their needs & rights first. We’re calling for modernised abortion law that works for women’s human rights & prevents further unnecessary prosecutions.
To mark International Safe Abortion Day on 28th September, we’ve got the answers to some of the most frequently asked questions about why we need to decriminalise abortion in Scotland now.
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Wait, isn’t abortion legal in Scotland?
No. Women and pregnant people in Scotland currently do not have the legal right to make the final decision about ending a pregnancy. Instead, that power lies in the hands of doctors—two of whom must approve any request for an abortion. This adds needless complexity to the process, leading to delays and creating unnecessary barriers for those seeking care, especially for marginalised groups like disabled women, migrant women and young women.
So what is the law?
The laws that dictate when abortion is permitted in Scotland are a patchwork of outdated regulations, stemming from as far back as the 17th century. These measures largely reflect the eras in which they were introduced and the degrees of patriarchal control women were subject to at the time. To put it in perspective, one of these laws is based in legislation from when witch trials were still happening.
Why do we need decriminalisation?
The current law is disconnected from the realities of modern Scotland, where abortion is routine healthcare accessed by around one in three in their lifetimes. While most women can access services without issue, marginalised women face greater challenges due to the two-doctor approval rule. For instance, for women in rural areas, there might only be one doctor available locally, or they may have to travel long distances to a clinic where abortion services are available.
Without this authorisation, abortion remains illegal across Britain, and women, healthcare providers and people assisting someone to have an abortion can be subject to prosecution. These and other restrictions set out in the Abortion Act can impede access to reproductive healthcare in Scotland.
The sharp increase in prosecutions for abortion-related offences in England highlights how outdated laws clash with modern medical practices and commitments to public health, human rights, and gender equality. Our report explores these legal failures in Scotland, including evidence that women have been charged and prosecuted for abortion-related offences in recent years.
Would decriminalising abortion make unsafe ‘backstreet’ abortions legal?
One argument against decriminalisation claims it would ‘legalise non-medical, backstreet abortions,’ but this is misleading. The Abortion Act strictly controls when, where, and how abortions can occur. Outside of this framework, abortion remains a crime.
It’s also important to note that 99% of abortions in Scotland today are medical, induced by pills, not surgical. The unsafe ‘backstreet’ abortions that were common when the Abortion Act was enacted are simply not the threat they were in the 1960s.
Despite being one of the most common and safest healthcare procedures—accessed by one in three women - abortion is treated differently in law than almost all other medical procedures. In all other fields of healthcare, medical bodies are able to shape guidance and regulation based on best practice, rather than complex laws, including criminal law, from a bygone era.
Do people in Scotland support abortion reform?
Decriminalisation is recommended by the World Health Organization, all major UK medical bodies, UN treaty groups, trade unions, and equality advocates. While abortion is often seen as a polarising issue, especially in Scotland, the reality is much different.
Regular polling by YouGov shows that the vast majority of Scots are firmly in favour of abortion rights. In fact, as of January 2024, 93% agreed that ‘women should have the right to an abortion.’ Despite lingering stigma and uncertainty surrounding abortion, partly due to its criminalisation, social attitudes in Scotland have shifted dramatically in recent decades.
Are politicians willing to take action?
With a few high-profile exceptions, countries across the world are increasingly modernising and liberalising their legal frameworks on abortion. In contrast, the laws in Scotland, England, and Wales are falling behind more progressive approaches seen in most of Europe. Britain, including Scotland, has also not kept up with international human rights standards, which clearly state that access to safe, legal, and timely abortion is a basic human right and shouldn’t be controlled through criminal laws or punishments.
In the UK, politicians have historically avoided changing abortion laws, seeing it as a ‘controversial’ issue. As a result, decisions taken in parliament have tended to be free votes rather than along party lines. However, Northern Ireland, Scotland, and Wales have all used their devolved powers to make changes, with Northern Ireland passing laws and Scotland and Wales taking executive action. For example, Scotland has approved early medical abortion at home and updated reporting requirements. Meanwhile, support for decriminalising abortion is growing across the political spectrum in Scotland.
Would decriminalising abortion face legal challenges?
Abortion was devolved to the Scottish Parliament in 2016 and it is open to the Scottish Parliament to pass legislation that amends the Abortion Act. The UK parliament has historically avoided reforming abortion laws at Westminster.
If Scotland were to change or repeal the Abortion Act, it could face legal challenges from the UK Government, arguing that different abortion laws across the UK would cause problems. However, Northern Ireland has always had different abortion laws. At the same time, the rising number of investigations and prosecutions of women seeking abortions in England has increased calls to decriminalise abortion and repeal the Abortion Act at Westminster.
Anti-abortion groups would likely try to block progressive abortion law reform. They previously challenged Northern Ireland’s law on safe access to clinics, but the UK Supreme Court rejected that case. Similar challenges in Scotland, such as the one against early medical abortions at home, have also been unsuccessful.
Find out more and read our full report here: ‘Outdated, harmful and never in the public interest - The urgent need to modernise Scotland’s abortion law and prevent prosecutions.’
Making the case for decriminalising abortion
The campaign to decriminalise abortion has gained momentum in recent months, and Engender has continued to advocate for change. We've pulled together a quick rundown of our recent work on this issue and the need for progress.
The Background
In England, women have been prosecuted and sentenced for procuring their own abortions, attracting media attention and leading to protests and other activities by advocates for reform.
Regulation of abortion care in Scotland is in urgent need of modernisation, with the current framework acting as a drag on services and as a barrier to timely access. The Scottish Government’s recent commitment to bring forward proposals to decriminalise abortion by the end of the parliamentary term (2026) has come on the back of increased scrutiny, policy and advocacy efforts by a range of stakeholders.
Why?
Abortion healthcare is vital to women's equality and wellbeing. It is a routine reproductive health procedure, with around one in three women needing an abortion in their lifetime in the UK.
Like most Scots, Engender supports women to make decisions about ending or continuing a pregnancy, and we’ve long called for change to ensure women’s reproductive rights are fully realised. Unfortunately, the current legal and regulatory regime means that women can be criminalised for procuring abortions, that two doctors need to authorise a woman’s decision to terminate a pregnancy, and that this impacts treatment such that it does not always best meet women's needs.
What have we done so far?
Last September, we joined Abortion Rights Scotland to hold a webinar session on decriminalisation, which set out key arguments in terms of women’s equality, the perspective of clinicians, and the legal status quo. You can watch the webinar online here. Our submission in response to a public petition to decriminalise abortion, alongside other evidence gathered by the Petitions Committee earlier this year, highlights key arguments for decriminalisation and urges the Committee to seek further and fuller evidence following this petition.
Earlier this month, Engender joined with eight other organisations - focused on women’s equality, abortion rights and health - to discuss the Scottish Government’s recent commitments with the Minister for Public Health and Women’s Health, Jenni Minto MSP. This followed a collective letter to the then-newly appointed First Minister in June, which was co-signed by 18 organisations, expressing our support for his commitment to remove abortion from the criminal justice system, and calling for an expert working group to support the development of proposals.
An expert working group
September’s Programme for Government contained a commitment to review of the current legal framework, and our call to create an expert working group has been accepted. The meeting with the Minister was a welcome opportunity to discuss this work, and to highlight the need for reform in terms of impacts on service provision and intersectional women’s equality and the importance of drawing on different women’s experiences of accessing abortion care.
What's next?
In terms of next steps, we focused on the need to act swiftly on establishing the review if we are going to see real progress by 2026, alongside transparent and established resourcing. We highlighted unintended consequences that have arisen internationally when reforming abortion law, with regards to access to services, and how this emphasises the need for lived experience input from different groups, alongside a broader focus on what the new regime will look like on the ground for women. Linked to this, we want to see the process rooted in established international human rights standards and norms, which make clear that abortion has no place in criminal law.
At Engender, we will be publishing a paper looking in detail at abortion within Scots law and different approaches that could be taken to achieve decriminalisation and a better service for women in Scotland. Please keep a look out for this and work around this important issue across Scotland in the months ahead.
Call for expert working group on decriminalisation of abortion accepted by Scottish Government
Abortion care in Scotland is in urgent need of modernisation, with the current framework acting as a drag on services and as a barrier to timely access. In June we wrote to the First Minister on abortion rights, alongside 16 other equalities, abortion and health organisations. In the letter, we welcomed the commitments made on the leadership campaign trail and called for creation of an expert working group on decriminalisation of abortion.
We are delighted that this suggestion has been accepted by Scottish Government. We now look forward to sharing how women in Scotland can feed into the review of current structures, and to Humza Yousaf’s commitment on decriminalisation being set out in this year’s Programme for Government. Read the letter and see a list of signatories below.
Dear First Minister,
We hope this letter finds you well and congratulate you on your appointment as First Minister of Scotland.
During your leadership campaign, we welcomed your commitments to protecting and advancing abortion rights. The implementation of nationwide buffer zones, consistent provision of abortion care for all that need it, and removal of abortion from the criminal justice system are vital elements of modern abortion healthcare in Scotland. We also need action to tackle growing capacity gaps across services, to ensure equality of access to person-centred abortion care, and to ensure that NHS staff are working in fully equipped and well-resourced services.
Steady progress has been made regarding abortion in recent years. The NHS Scottish Abortion Care Providers Group has worked closely with Scottish Government to advance commitments set out in the Women’s Health Plan, including early medical abortion at home, telemedical care, and improved provision of mid-term abortions across the country.
We now look forward to further progress under your leadership, and to working with the Scottish Government and Women’s Health Champion towards delivery of your commitments. We are aware that Scottish Government already has regular engagement with the NHS Scottish Abortion Care Providers Group, which will, of course, continue to be invaluable. Building on your commitment to move forward decriminalisation of abortion, we believe that an expert working group would be of assistance to Scottish Government Ministers on this topic, and would welcome the opportunity to discuss this further.
Women's sector calls on candidates to go further on gender equality
Yesterday, we joined with organisations from across the Scottish Women's Sector to write to the SNP leadership candidates, calling on them to commit to bringing about progressive change on gender equality that benefits not only women, but Scottish society. Read the letter and see a full list of signatories below.
As Scotland’s national women’s equality organisations, our ambition is for a Scotland in which substantive, intersectional gender equality is finally realised. To secure this, we need an approach to government that puts the experiences of diverse women, particularly marginalised and minoritised women, at the core of public policy development and implementation. This requires innovation, resources, and leadership to ensure that all women benefit equitably from public investment and services, that our safety and human rights are realised, that we can participate fully in culture and public life, and that our unpaid care and paid work are valued and compensated fairly.
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