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  • Author or Editor: Emily Jackson x
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This chapter considers the gendered implications of product liability claims for injuries caused by dangerous medical devices. In recent years, women have been injured in a series of scandals involving medical devices, including Poly Implant Prothèse (PIP) breast implants, the Essure permanent contraceptive device and transvaginal mesh. Further, devices that are implanted into both male and female bodies, such as joint replacements and cardiac devices, fail more frequently in women than they do in men. If women are more likely to be injured by implantable devices, they are also more likely to seek compensation for those injuries, and hence to be disproportionately affected by any defects in the product liability regime. If an effective product liability regime gives manufacturers an incentive to ensure that their products are safe, an ineffective product liability regime may do the opposite, making it more likely that dangerous devices will continue to be implanted into women’s bodies. This is exacerbated by the fact that many women who are injured by medical devices find that their symptoms are dismissed or downplayed as ‘normal’ and ‘attributable to women’s problems’.

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Current British abortion law combines criminal prohibitions against abortion with an exception, carved out by the Abortion Act 1967, which provides that these offences do not apply where an abortion is performed in line with its requirements (see Chapter One). In the event of decriminalisation, the Abortion Act would necessarily be either very radically revised or repealed in its entirety alongside the removal of the criminal prohibitions. This has led some to worry that important safeguards against unethical or unsafe practice would be lost (for example, Caulfield, 2017: cols 30–1). In this chapter, we consider the basis for such concerns in the light of the legal regulation that would continue to apply following decriminalisation. We concentrate on the law of England, Wales and Scotland. Northern Ireland, where the Abortion Act has never applied, will be considered separately in the following chapter.

As we will show, the concern that decriminalisation amounts to deregulation is misplaced. Rather, abortion services are already (and would remain) subject to a dense web of other regulation, including general provisions of criminal and civil law, licensing and inspection requirements, and professional oversight (see further BMA, 2019). We begin by setting out the regulatory framework that is designed to promote good governance and high quality, patient-centred care in health services. We then move on to focus, in particular, on two issues that have provoked concern in the context of abortion services. First, we explain how the robust regulation of informed consent, confidentiality, counselling and safeguarding would be ensured following decriminalisation.

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