They have announced they will seek permission to take their case against the law that allows abortion up to birth for Down Syndrome onto the Court of Appeal, after the High Court rejected their legal challenge.

“I am really upset not to win but the fight is not over,” Crowter says.

“The judges might not think it discriminates against me, the government might not think it discriminates against me but I am telling you that I do feel discriminated against….and the verdict doesn’t change how I and thousands in the Down syndrome community feel.

“We face discrimination every day in schools, in the workplace and in society. And now thanks to this verdict the judges have upheld discrimination in the womb too. This is a very sad day but I will keep fighting.”

Máire Lea-Wilson was placed under pressure to have an abortion when a 34-week scan revealed her son had Down Syndrome. Heidi and her team have crowdfunded over £100,000 for the case.

Currently in England, Wales and Scotland, there is a general 24-week time limit for abortion, but if the baby has a disability, including Down syndrome, cleft lip and club foot, abortion is legal right up to birth.

In their detailed judgment the High Court found that the question of abortion of fetuses with a disability fell within the  “margin of appreciation” for Parliament, not the courts to decide “a very difficult balance [that] has to be struck by Parliament between the interests of the foetus and the rights of women.”  They found that the clauses of the European Charter of Human Rights did not apply before birth, and the UK’s Human Rights Act was not breached.

“The issues which have given rise to this claim are highly sensitive and sometimes controversial, Lord Justice Singh and Mrs Justice Lieven write. “They generate strong feelings, on all sides of the debate, including sincere differences of view about ethical and religious matters. This Court cannot enter into those controversies; it must decide the case only in accordance with the law.”

A number of attempts to change the law in parliament have failed, according to a timeline laid out in the judgment. The Abortion Act 1967 provides for termination when “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

Guidance from the Royal College of Obstetricians and Gynaecologists states “It has been argued that, since neither substantial risk nor serious handicap is defined, each can be interpreted on a largely subjective basis. As a result, it would be difficult if not impossible to demonstrate that a decision to terminate the pregnancy was not taken in good faith.” The College’s working party concluded that it would be unrealistic to produce a definitive list of conditions that constitute serious handicap.”

The Down syndrome campaigners argue that because their condition is a ground for abortion, the law reinforces negative attitudes towards them and is a form of discrimination. The UK’s Disability Rights Commission (now the Equality and Human Rights Commission) has said that this aspect of the Abortion Act “is offensive to many people; it reinforces negative stereotypes of disability…[and] is incompatible with valuing disability and non-disability equally”.

There were 3,083 disability-selective abortions in 2020. 693 of these abortions were due to babies being diagnosed with Down syndrome, an increase of 5.64% from 656 in 2019. The actual figures are likely to be much higher – a 2013 review showed 886 fetuses were aborted for Down syndrome in England and Wales in 2010 but only 482 were reported in Department of Health records. The underreporting was confirmed by a 2014 Department of Health review.

There were 3,083 disability-selective abortions in England, Wales and Scotland in 2020. 693 of these abortions were due to babies being diagnosed with Down’s syndrome, an increase of 5.64% from 656 in 2019. The actual figures are likely to be much higher – a 2013 review showed 886 fetuses were aborted for Down syndrome in England and Wales in 2010 but only 482 were reported in Department of Health records. The underreporting was confirmed by a 2014 Department of Health review.