§ 2.35 p.m.
§ BARONESS SUMMERSKILLMy Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
§ [The Question was as follows:
§ To ask Her Majesty's Government whether it can become permissible for a doctor to terminate the pregnancy of a woman when it has been definitely established that thalidomide has been administered to her.]
§ THE LORD CHANCELLOR (LORD DILHORNE)My Lords, the circumstances in which a pregnancy may lawfully be terminated were indicated in the direction given to the jury in 1938 in the leading case of Rex v. Bourne; that is, that the act must be done in good faith to preserve the mother's life. The fact that the pregnancy, if allowed to take its course, would be likely to make the woman a physical or mental wreck would entitle the jury to take the view that the operation was for the preservation of the mother's life. The possibility that a child may be born deformed because, for example, the mother had taken thalidomide is not in itself a lawful ground for terminating a pregnancy.
§ BARONESS SUMMERSKILLMy Lords, could I say how pleased I am that the noble and learned Lord the Lord Chancellor has recognised that this is such a serious matter of such concern to the people of this country, and indeed to other countries, that he has thought fit to answer this Question? May I therefore, ask him a few questions of a medico-legal character?—but I can 768 assure him I do not ask him to answer immediately. I would much prefer him to take them away and digest them and then give his considered opinion.
Would he not agree that when the statement was made in the 1938 Bourne case we had not moved into what one might call the chemo-therapy era of medicine, and nobody before that, in this century or the last, could envisage a time when it was possible for drugs which had been inadequately tested to be given to a woman and that subsequently that woman would give birth to a child which is severely crippled? Therefore, I quite understand that at that time it would be decided again that an abortion could be permitted only where the mother's health had first consideration. But might I put this to the noble and learned Lord, the Lord Chancellor? In an event where it is known that an infant is going to be born which will be severely crippled for the whole of its life, where perhaps it is without arms or legs, or indeed both, where no doctor could say that the child would not have a normal span of life, might survive to 70, should not there be compassionate consideration given to all those circumstances by the law of the land? When we make these decisions as lawyers, surely we should—if I may respectfully ask the Lord Chancellor—take into consideration now the welfare not only of the mother but of the child?
§ THE LORD CHANCELLORMy Lords, I will, of course, carefully consider all that the noble Lady has said, but I think I should point out that I am advised that the fact that the woman has taken this drug during pregnancy does not by any means entail that her child will be born abnormal; and I am advised that there is no sufficient basis for predicting that abnormality will result in these circumstances. The noble Lady will recognise that any change in the law would mean legislation. The fact that this drug was withdrawn at the end of November, 1961, should also be taken into account, since it is almost certain that this drug can result in the birth of children with congenital abnormalities only if it is administered during the early stages of pregnancy, and therefore the risk of further cases arising will virtually be finished by the end of next 769 month. But I will, of course, write to the noble Lady in the light of the observations she has made.
§ BARONESS SUMMERSKILLMy Lords, may I ask another question, because this is such a serious matter? As the noble and learned Lord knows, a child is viable at 28 weeks; and it was on May 17, only eight weeks ago that the Ministry of Health wrote to the doctors of this country warning that, although this drug had been taken from the market by manufacturers in December, nevertheless women in the country Who had this drug in their medicine cupboards were still taking it, and cases had come to the notice of the Ministry. Therefore it is possible for a woman to have taken this drug and yet the fœtus has not yet reached the viable stage.
§ THE LORD CHANCELLORMy Lords, I am sure that the noble Lady's Question will draw attention to the desirability of throwing this drug away if it is in any medicine cupboard in the country. But so far as questions about the Ministry of Health circulated and communicated documents are concerned, I am not in a position to say anything with regard to that, because her Question was solely concerned with law.
§ BARONESS SUMMERSKILLMy Lords, may I ask a final question on a legal point? The noble and learned Lord said that the law to-day says that only the mother's welfare must be taken into consideration. In these special cases these women must have been of a nervous character, otherwise they would not have had this drug administered. Therefore, it could be argued "hat the nervous condition of these women would be aggravated if they had to go to full term. Therefore, on psychological grounds, would it be in order for these pregnancies to be terminated in the interests of the mother?
§ THE LORD CHANCELLORMy Lords, in a fairly recent case, that of the Queen v. Newton and Stungo in 1958, Mr. Justice Ashworth gave a direction to the jury to the effect that it is always open to a doctor to terminate a pregnancy if he is satisfied that the state of mind of the expectant mother is such as to justify that course for the purpose of preserving her mental health. The Act 770 must be done in good faith for the purpose of preserving the life or mental or physical health of the woman. I think that that really contains the answer to the noble Baroness's Question.
§ BARONESS SUMMERSKILLI thank the noble and learned Lord.
§ LORD OGMOREMy Lords, on another point, may I ask the noble and learned Lord on the Woolsack this question? In view of the possibly high cost to the country of these cases, will the Government give consideration to the possibility of claims against the drug companies concerned?
§ THE LORD CHANCELLORMy Lords, I would say in answer to the noble Lord that that really is a quite different Question from that which was put to me on the Order Paper. I am afraid I am not in a position to give the noble Lord an answer to it.