Lawyers will next week ask the High Court for permission to begin a legal action that could lead to a tightening up of the abortion law and the definition of serious handicap.
Reverend Joanna Jepson and her lawyers are seeking the go-ahead to pursue a judicial review of a decision by West Mercia Police not to prosecute a doctor who performed a late abortion on a woman who, it is alleged, did not want a baby with a cleft palate. The woman has not been named.
At the heart of the case is the issue of whether a cleft lip can be considered a serious handicap. The operation was carried out more than six months into the pregnancy. Abortion beyond 24 weeks is allowed only if there is a substantial risk that the child would be born seriously handicapped.
Lawyers acting for Reverend Jepson, who has had corrective surgery for a congenital jaw abnormality, say that a cleft lip cannot be classed as a serious handicap.
"We will be seeking permission to go for a judicial review of the West Mercia Police decision not to prosecute. In my view we have a good chance of getting through that hearing and going for a full trial for a variety of reasons," says her solicitor, Paul Conrathe.
"Firstly, cleft lip does not tend to fall into the category of what one calls a serious handicap. I think that most people accept that. Secondly, and this is the position of the people opposing us, the law is uncertain and gives flexibility. If that is the case, it is a very worrying state of affairs indeed. The law has to be certain when dealing with people's rights and responsibilities. At the very least the case should go to trial to determine what is the law."
The Cleft Lip and Palate Association, which points out that 1 in 600-700 children in the United Kingdom are born with a cleft lip or palate, or both, are also opposed to the concept of cleft lip as a serious handicap. "The key issue here is the timing of the abortion, above the 24 weeks, and the suggestion that a cleft palate is a serious handicap. That is something we do not accept," said the chief executive, Gareth Davies.
Hereford Hospitals NHS Trust said its staff had followed the right procedures: "The trust is satisfied that the correct procedures were followed by our staff. It is inappropriate to comment in view of the ongoing legal proceedings."