The Criminal Sanction as it Relates to Human Reproduction: The Genesis of the Statutory Prohibition of Abortion

Document Type


Publication Date


Source Publication

Journal of Legal History. Volume 5 (1984), p. 20-43.


Abortion--Law and legislation


The historical development of the criminal law with respect to abortion is interesting not only because of its intimate connection with religious ideology and medical science: it also illustrates the interest which the criminal law has long had in exercising some control over the circumstances of human reproduction. The close relationship which the practice of abortion and infanticide share is also important to understand if one is interested in the nature of the involvement of the criminal law in human reproduction. All of these issues essentially came together in Lord Ellenborough's Act, 1803 as abortion at any stage of pregnancy became a statutory felony, although the ecclesiastically inspired distinction of quickening was retained to demarcate the graver offence. The Act also effected a change in the law concerning concealment of illegitimate birth by repealing an old and very punitive statute of 1623.

The intention herein is to examine the state of the common law with respect to abortion before and after quickening, and the related issues of infant and maternal death resulting from the abortion attempt, with a view to understanding the basis of Lord Ellenborough's Act and the profound change in the law which it wrought.


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