§ 2.53 p.m.
§ Order of the Day for the Second Reading read.
§ LORD SILKIN
My Lords, I beg to move that this Bill be now read a second time. The Bill has aroused a great deal of interest among all sections of the community, and almost as great interest in this House as did the Rhodesia Bill a fortnight or so ago. There are on the list to-day 26 speakers as against 43 on the Rhodesia Bill, but that is a pretty solid expression of interest in a measure of this kind. Childbirth, and the problems flowing from it both before and after the event, affect at some period of their lives the majority of married women, and occasionally unmarried persons. There has been for at least fifty years a growing opinion that the law of abortion, dating back to 1861, is in need of radical amendment. This opinion has been sponsored over the last quarter of a century by a powerful and influential movement, the Abortion Law Reform Association, which numbers among its members some of the most eminent men and women in this country in all walks of life. I am much indebted to the Association for all the help it has given me in connection with this Bill, although I want to say quite plainly and clearly that I take full responsibility for its terms.
I propose, first of all, to explain very briefly what is the present state of the law on abortion. Abortion is a criminal offence under Section 58 of the Offences Against the Person Act 1861. It is stated to be punishable by life imprisonment. Any woman who with intent to 1140 procure a miscarriage administers to herself any poison or drug or who uses any instrument for the like purpose commits an offence. So does any other person who administers drugs or uses any instrument on a woman for the same purpose.
It is true that since the Act was passed there is to-day some common sense, humanity and mercy introduced into the harsh application of this law. For instance, there has been no sentence of life imprisonment for a long time past, and the maximum in practice to-day is six years. The prospective mother who commits an offence is very rarely charged. In recent years three Judges of the High Court have interpreted the law, in their directions to juries when doctors were charged with performing illegal operations, so as to make it lawful for a doctor who honestly believes the mother's life or health are seriously endangered to carry out an operation for abortion.
That is satisfactory so far as it goes—that is to say, where the mother's life or health is seriously endangered—but it is still a fact that this decision depended upon directions to the jury by three specific judges. There has been no decision of any higher Court; therefore there is still a considerable element of doubt and uncertainty as to what the law is. In fact, a number of doctors—about two every year—have been convicted since the first decision in 1938. They have been sentenced to up to three years' imprisonment and struck off the roll of doctors. It may well be that the view was taken that they did not honestly believe that the mother's life was in danger, but it certainly creates a strong element of doubt among doctors as to the present state of the law. Furthermore, the decisions, so far as they go, do not go beyond Clause 1(a) of the Bill; the Bill which is before the House to-day goes very much wider than merely cases where the mother's life or health is seriously endangered. The decisions do not cover, for instance, serious injury to physical or mental health resulting from the strain of caring for the child; still less do they help in dealing with the other provisions of the Bill. One would have thought that the very heavy penalties which have been imposed under the Offences Against the Person Act would have stamped out illegal abortion, but in 1141 fact the amount of ill-health and misery caused by the unhappy conditions of people in childbirth have tended to increase the number.
The number of illegal abortions has certainly increased over the years. The Government of 1937 set up an Inter-Departmental Committee, under the chairmanship of Lord Birkett, to inquire into the prevalence of abortion and what changes in the law were required. Their figure, which was the best estimate they could make upon a great deal of evidence, was that at that time, in about 1937, there were up to 60,000 illegal abortions a year. This figure is not far different from the figure given in evidence to the Committee by the Abortion Law Reform Association, which gave a figure of 54,900. So we may assume that something of the order of 60,000 was a reasonable figure in 1939. But the Inter-Departmental Committee gave it as their opinion that in medical, police and social circles illegal abortion was thought to be becoming more frequent; and if we were to take the figure to-day as against 1939, having regard to the increased population and, I am afraid, the changes in attitude towards sex relationships, it would not be unreasonable to say that there are probably 100,000 abortions a year at the present time. Yet, my Lords, the total number of convictions for illegal abortion is only about 50 a year, or one conviction in 2,000 cases of illegal abortion. Clearly the law has broken down. It is neither respected nor obeyed. Abortion, to use the words of the former Archbishop of Canterbury in a debate in 1958, has been driven underground by repressive legislation.
Many women to-day are so desperate that they resort to means which are gravely damaging to their health, or even to their life, to create an abortion. They take drugs and pills, such as quinine pills, which are calculated to end pregnancy; they insert things into the womb by means of a syringe; they use disinfectants, running a grave risk of serious injury to tissues and organs; they use methods of violence, such as moving heavy furniture and jumping down stairs. Cases of that kind are known to most of us. Often their husbands assist in these operations. Where these methods are unsuccessful, many then resort to unqualified abortionists. The results have 1142 been described in graphic terms by an eminent physician.The trail of disease and crippling injuries, displacements, discharges, hæmorrhages, inflammation after unskilled operations (whether by the woman herself or by an illegal abortionist) is as much a human sacrifice as the more spectacular death roll itself.In fact, in 1964 there were 50 deaths from abortion not carried out by doctors. There were also between 30,000 and 40,000 cases of abortion, or attempted abortion, admitted into hospital at public expense; and the number is steadily increasing. This may sound a very high figure in relation to the number of abortions itself, but it is a fact that three out of ten attempted abortions result in hospital treatment.
Contrast this position, my Lords, with that of the woman who can afford to pay a doctor to carry out an operation, on the alleged ground that her health or her life may be endangered if she gives birth to a child. There were recently two articles in the Sunday Observer giving detailed accounts of abortions carried out by doctors for those who could afford to pay, costing from £100 at the minimium rate up to £500 in some cases. So there is a very big difference between women desirous of an abortion who can get it if they can afford to pay, and women who cannot get it and have to resort to back-street methods. Even worse, there are those who do not even know how to set about it, and there are quite a number of women who want abortion but do not know at all where to go.
The Bill before the House is designed, first, to make the law on abortion clear and certain, so that no medical practitioner need fear prosecution if in good faith he carries out an abortion on a patient whose circumstances fall within the provisions of this Bill. I want to make it clear at this stage that the conditions in the Bill are carefully circumscribed, and it is not a general licence to a medical practitioner to carry out abortions on anybody who desires an abortion. There are considerable categories of women who might desire an abortion but would not be able to get it under this Bill. Nor does the Bill compel any medical practitioner to carry out an abortion. If he has a conscientious objection to doing so, he is under no obligation at all to carry out an 1143 abortion at the request of a patient. Secondly, the Bill has for its purpose to extend the cases where abortion is legal to the three kinds of cases mentioned in paragraphs (b) (c) and (d) of Clause 1 of the Bill.
Clause 1(a) is very much in line with the three cases to which I have referred, where doctors were acquitted. It is generally regarded as the practice which should be followed, although, as I have indicated, in quite a number of cases doctors have been convicted. The Bill deals with three other special cases in which abortion would be permitted. These three cases will not, as I have said, cover all abortions; they are carefully circumscribed.
Clause 1(b) refers to cases where there would be grave risk of the child being born grossly deformed or mentally abnormal. I am advised that medical knowledge has reached the stage where a medical practitioner can say with considerable certainty, by X-ray and other tests, that if born a child would suffer these abnormalities. One particular case is very well-known, and that is the case of rubella, or what is popularly known as German measles. If a mother contracts German measles during pregnancy there is a very great danger indeed of her child being born with one or more grave abnormalities, such as deafness or blindness. I do not think I need emphasise the unhappiness caused to both parents, and to the children and other members of the family, where a child is born grossly deformed or with other serious mental or physical abnormalities. All of us have in mind examples of children born deaf, blind, without hands or legs, unable to speak, or generally mentally defective.
Clause 1(c) relates to the health of a patient or the social conditions which make her unsuitable to assume the legal or moral responsibility of parenthood. I have in mind cases of women between 40 and 50 years of age who have conceived a child, some of them grandmothers, some with five or six children, who are so desperate that in a number of cases they have attempted suicide, and in some cases have carried out the attempt successfully. I want to quote first a letter which I received, one of a great many similar letters, which I think demonstrates 1144 the kind of problem confronting women of this kind:You see, I'm nearly 38 and find I'm pregnant again. Oh, I wouldn't mind if it were my first, second or even third. But I have four, the last being premature twins of both sexes. They are both backward at school and the boy has very little sight in one eye and is very easily led. I'm going out of my mind with worry, and I would certainly get a back-street abortion if I only knew where to find one. I have even made an attempt on my life but failed, but I'm sure I will try again.That is typical of the kind of case that I have in mind. I should like to quote one other. In that case the woman wrote:I am married to a complete drunk who is out of work more than he is in. I have four children and now at 40 I am pregnant again … I was just beginning to get on my feet, and get some of the things we needed. I've been working for the last three years, and cannot bear the thought of that terrible struggle to make ends meet again. I've tried all other methods that I've been told about; without success, so as a last resort I appeal to you—please help me if you possibly can.That is typical of the sort of case—there are thousands of them—that one hears about.
In a recent Government Report it was stated that out of 1,000 investigated cases of death from childbirth, no fewer than 345 women were already mothers of six or more children—that is, one-third; and in the Registrar General's Report for 1958 it was stated that pregnancy, childbirth and abortion are an increasing cause of death among married women as one passes down the scale from social class 1 to social class 5. This is the kind of case that Clause 1(c) is designed to cover.
Clause 1(d) provides for cases where the patient becomes pregnant as the result of intercourse which is an offence under Sections 1 to 11 of the Sexual Offences Act 1956. These are cases which involve rape, sexual intercourse with a child under 13, sexual intercourse with a child over 13 (where the conditions and the penalty are rather different), sexual intercourse with a woman who is insane or mentally defective, or sexual intercourse as the result of administering drugs to a woman so as to make her unconscious. There are various cases of a kind which will be familiar to most lawyers, but these are all cases where there is involuntary intercourse on the part of the woman, with one possible 1145 exception—incest. These cases cover incest as well. Clause 1(d) is designed to enable a woman to get an abortion in any one of these cases covered by the Sexual Offences Act.
In 1964, 56 persons were found guilty of sexual intercourse with a girl under 13, and 567 with girls aged between 13 and 16. There were also 124 convictions for rape—although, of course, there were many more cases than those which were actually brought before the courts and punished. I think that any woman, and most men, would appreciate the revulsion which a mother must feel, particularly when she is very young, in carrying a child which is unwanted, and which was brought about through no act on her part at all. Then there is the situation in which a child is going to be born as the result of intercourse with a woman who is an idiot or an imbecile—that, of course, is one of the eleven cases covered by the Sexual Offences Act.
There is one horrible case which came to my notice of a child of 12½ who was about to give birth to a baby as a result of rape. She was unable to get an abortion. She was placed in an institution. The child has now been born, and is likely to be a mentally defective. Under the present law, there is no help for a child-mother of that kind unless a doctor is prepared to come forward, as Dr. Bourne was in 1938, and say that the mother's health would be seriously endangered as a result of giving birth to a child. If he is not prepared to go as far as that—"seriously endangered"—then there is no way in which such a child-mother can get an abortion at the present time.
Clause 2 provides that, in cases of abortion on the ground of social conditions or of pregnancy arising from offences under the Sexual Offences Act, no termination of a pregnancy shall be performed after the sixteenth week of pregnancy. That is admittedly debatable. It is the least period that I could assess from the advice which I have had; but, like all else in the Bill, it is subject to discussion at a later stage. Clause 3 places on the Crown the onus of proof of bad faith in the case of an abortion carried out by a registered medical practitioner, or any breach of Clause 2. The doctor will not have to prove his innocence or lack of good faith. Clause 4 provides that the law relating to the requirement of consent 1146 to a surgical operation shall not be affected. In other words, no abortion may be carried out without the consent of the woman—except, I suppose, in cases where she is unable to give such consent, in which case it would be through the next friend.
My Lords, the principles contained in this Bill have very wide support throughout the country. Bodies like the National Council of Women, the Women's Co-Operative Guild and other women's organisations have passed resolutions in support of a measure of this kind. So have the Magistrates' Association and the Eugenics Society. A National Opinion Poll was held this year which showed that nearly 75 per cent. of the general public were in favour of a measure of this kind; and a private poll taken of London practitioners showed that about the same percentage was in favour.
There is an Amendment on the Paper to reject this Bill, and I shall listen with great interest to the grounds put forward in support of the Amendment. I will not anticipate them now, but I hope that I may be permitted to say this. I recognise that there are some who, on religious grounds, oppose all forms of abortion. I respect their views; I respect their sincerity; and I try to understand them as best I can. But I hope they will give credit to those who are supporting a measure of this kind and accept the fact that we are equally sincere and equally honest in doing what we think is right. Neither the medical profession nor the patients are going to be compelled against their conscience to accept abortion. And while any woman who feels that her religious, moral or ethical convictions would prevent her from having an operation is certainly free not to have it, those who do not feel that way should be free to have the operation if they so desire.
In asking the House to give a Second Reading to this Bill, I am not asking it to commit itself to every detail of every paragraph, to the four grounds for abortion set out in Clause 1 of the Bill, or to Clause 2 of the Bill. Some may have reservations and think we are going too far; others may feel that the Bill does not go far enough. I ask all noble Lords to express their views on the broad principle of the Bill by supporting the Second Reading and I appeal to all noble Lords 1147 to stand up and be counted and not to refrain from voting. I would assume that an abstention is equal to a refusal to support the Bill.
There may be appeals for delay; I know there will be one from the British Medical Association. There may be an appeal to set up a committee—yet another. I can only say that this is not a new conception. The need for reform of the law was recognised, at least, when the Inter-Departmental Committee was set up in 1937. That Committee, under the chairmanship of Lord Birkett, took two years to report. It came to the conclusion that the law needed altering, but it came to no other conclusion unanimously. There were five or six different Reports—and, naturally, nothing was done. This was partly because, soon afterwards, the war broke out; but nothing has been done since then to implement the Report or to do anything about an amendment of the law which everyone on that Committee recognised to be necessary.
My Lords, I doubt whether the setting-up of an Inter-Departmental Committee to-day would have a much better fate. It would, at any rate, postpone for many years what I regard as a most urgent reform. As to the British Medical Association, who are also asking for delay, they have been aware of this problem for many years. Indeed, they gave evidence before the Inter-Departmental Committee which sat between 1937 and 1939. They are aware that five years ago Mr. Kenneth Robinson, the present Minister of Health, introduced in another place a Bill on similar lines to this, which did not get through. They were aware then that there was strong feeling in support of reform of the law. Two other measures have been introduced in another place, but nothing has been done. Now the B.M.A. have set up a committee and, by a strange coincidence, that committee is meeting for the first time to-day. I hope noble Lords will not regard that as sufficient justification for not proceeding with this measure.
This Bill will obviously need amendment. I am quite confident that your Lordships are in a position to apply your wisdom, your knowledge and understanding to hammering out something which will be satisfactory to all concerned. I 1148 see no justification for deferring this Bill merely because a committee is sitting or because the desirability of setting up a further committee is being suggested. I think that to-day we all know enough about the human problems involved to enable us to make up our minds as to whether or not we want this measure. I appeal to all noble Lords to support this Bill on Second Reading in the knowledge that there will be, as I hope, an effective Committee stage here later on to deal with certain of the points they may feel need amending. I am not claiming for one moment that this Bill is perfect in all respects. We are certainly not covering all the cases of women who want abortions. There will be a great many cases not covered by this Bill—and deliberately so. The case of the young woman who "gets into trouble", who is in perfect health and is quite fit to give birth to a child but who (whether she is married or unmarried) has her own reasons for not wanting a child, is certainly not covered by this Bill. If she decides to have an abortion, she will have to adopt the measures which are at present adopted, of going behind the scenes and getting something done that way.
If we give this Bill a Second Reading to-day we shall have taken a momentous and an historic step towards removing an immense amount of misery, wretchedness and distress, and relieving hundreds of thousands of women—and men—of a terrible shadow which to-day hangs over their lives. I beg to move that this Bill be read a second time.
§ Moved. That the Bill be now read 2a.—(Lord Silkin.)
§ 3.28 p.m.
§ VISCOUNT DILHORNE
My Lords, the noble Lord, Lord Silkin, has spoken most persuasively in support of the Motion that his Bill should be now read a second time. I am certainly in sympathy with a great deal of what he has said. He has stressed the need for legislation on this subject, and on that I am in complete agreement with him. I think there is a real need for a measure which both declares in what circumstances it will be lawful to terminate a pregnancy and also—and this is equally important—provides adequate safeguards against abuse of the right to do so.
I think the advantages of legislating on this subject are really two-fold. First, 1149 the removal of any uncertainty (and I will come back to that in a moment) about when the pregnancy can be terminated; and, secondly, making it clear that in certain circumstances that can be done lawfully. I think that making that absolutely clear by legislation may give more guidance to members of the medical profession than is now available to them from directions given by Her Majesty's Judges in the course of summing-up to juries. It may also have the effect—and I hope it will—of reducing the numbers of illegal operations. But I believe that we should be deluding ourselves if we thought that by passing a Bill of this character we should be putting an end to those dangerous operations which can do so much harm—and do so much harm—to so many women.
In Denmark they have had a law permitting abortion since 1956, and six years later there had been 4,000 lawful abortions, and, it is estimated, no fewer than 15,000 illegal ones. The noble Lord referred to the estimated number of illegal operations in 1937, and inferred that the number must have risen to something like 100,000 this year. I am not sure that inference may be properly drawn. I should have thought that, with increasing knowledge of birth control, there was at least a possibility that the number of illegal operations might not have risen appreciably; and might even, possibly, have fallen since 1937. But that is by the way.
I should like to make absolutely clear that I, for one, am in favour of a Bill on this subject. My difficulty lies in connection with this Bill. I think that to convert this Bill into the Bill that I want would mean the re-writing of every single provision in each clause, except Clause 5, which says that the title shall be the Abortion Act, and that the Act shall not extend to Northern Ireland.
I am sorry to say that there is little in this Bill which I do not criticise. I would start by saying that in my view the Bill does not contain adequate safeguards against abuse. The noble Lord has told us a great deal about the consequences of an illegal operation and about the tremendous distress experienced by many women who wish to have a pregnancy terminated. But, my Lords, surely we must all recognise, whatever view we take 1150 on this subject, that to terminate any pregnancy, to destroy a potential human life, is of itself a very serious thing to do. I cannot claim to speak on this subject with any authority, but I understand that it is wrong to suppose that the operation, even if performed in the early days of pregnancy, and when properly conducted, is entirely without risk. There is a risk of trauma, physical or mental, which may be serious and prolonged, and possibly irreversible; and there may be physical results as well. If that be right, I am sure that on that ground, too, we should regard the performance of this operation as a serious matter. Yet this Bill proposes that this serious operation shall be lawful if any one doctor believes any of the matters stated in paragraphs (a), (b), (c) and (d) in Clause 1. I do not think that this will do.
In these days almost everyone has his or her own doctor, and where a woman or girl has her own doctor I think it very important to provide that this operation should not be performed without a certificate from the doctor that the conditions prescribed by law are complied with. If a woman has no doctor of her own, I think that a certificate should be given by a doctor serving in a hospital. I do not think it a sufficient safeguard against abuse merely to provide that this serious operation can be performed on the opinion of one doctor—and a doctor who may never have seen the woman or girl before. To allow this might be to open a door very wide. The opinions of doctors, like those of other people, includ-lawyers, may differ, and if this Bill were passed in its present form we might find—I expect we should find—that some doctors were much more ready than others to believe that the prescribed conditions were satisfied, and people would flock to them to secure the performance of this operation.
For these reasons, I hold the view that it is a necessary requirement that a certificate should be given by the woman or the girl's own doctor, where she has one. But I do not think that that goes far enough. I do not think that the operation ought to be performed without a second medical opinion, and I believe, therefore, that the Bill should prescribe not only that there should be a certificate from the woman's own doctor but also 1151 there should be a certificate from a consultant. If these two certificates were produced, it would be, open to any registered medical practitioner to perform the operation.
It is also desirable, in the public interest, I believe, to require that the fact of the need for the operation be reported to the local health authority within 48 hours, together with the name and address of the woman and the two certificates from her doctor and consultant giving their opinion why the operation should be done. I suggest that this would be a satisfactory procedure. It might be necessary to make some special provision for performing the operation in an emergency, though I do not understand how an emergency could arise of such a nature as to prevent this procedure from being complied with. The Bill provides no such machinery. In my view it is very necessary that it should, and provision should be made that only if this procedure is followed should the operation be treated as lawful; and if it is prescribed and followed there would be no risk of prosecution.
My Lords, I turn to the conditions which, in my opinion, would be required to be established to justify legal abortion. I know that some people take the view that it should never be lawful; others think that it should be lawful if a pregnant women herself does not want her pregnancy to be completed. I do not take either view. In my opinion it should be lawful to terminate a pregnancy if its continuance is likely to endanger the life of the woman or girl or seriously injure her physical or mental health. I think that this proposition commands widespread support throughout the country. Indeed, it states the present law as I understand it. But that law, as the noble Lord, Lord Silkin, has said, is based on directions given by Judges to juries in certain well-known cases. While some may think it most unlikely, it is, of course, possible that if the matter came before a higher Court, that Court might, as the matter depends on the interpretation of a Statute, express an opinion different from that of the Judges in those cases. I think there is a strong case for making clear that it is the law of the land that where there is such a risk to the life or health of the patient abortion is lawful. My Lords, 1152 I believe this is the right test: that if the pregnant woman's life or health is likely to be so affected, then her interests should be preferred to those of the potential human being.
Paragraph (a) of Clause 1 contains this proposition, but it also goes further, and, in my view, too far. As your Lordships will see, it would permit of termination if it were believed by one doctor that there would be a grave risk to the life of the patient or a serious injury to her health from the strain of caring for the child after it is born. Consider, my Lords, what that means. If there were any such risk to the health of a mother arising during pregnancy it would not be necessary to consider the effect on the mother of the strain of caring for the child: the pregnancy would be terminated. So the case one has to consider is where a woman may have a child without risk of serious injury, and we are asked to enact that in those circumstances it should still be lawful to terminate a pregnancy if, in the opinion of one doctor, looking after the child when born might constitute a serious risk to that woman.
My Lords, that seems to me to assume a remarkable degree of prescience on the part of medical practitioners, and in these days of a Welfare State, I think it is going far too far. I do not see how the destruction of a potential human being can be justified on the ground that the woman, who can without risk to herself bear the child, may be thought likely to suffer in health "from the strain of caring for it". If this Bill receives a Second Reading, I hope I shall have your Lordships' support in moving the deletion of those words from paragraph (a).
May I ask your Lordships to look at paragraph (d)? The noble Lord, Lord Silkin, told us of a distressing case of a young child pregnant by rape to whom no help could be given under the present law. One does not know the circumstances of that particular case. Of course, the case of a woman or girl who becomes pregnant as a result of rape or incest, or of the commission of any other criminal offence upon her, is one which demands the greatest sympathy; but, at the same time, in my view, paragraph (d) is entirely wrong. I would ask your Lordships to consider just what it means. It requires that the doctor should believe 1153 that the pregnancy was due to the commission of a criminal offence by a man or that the patient is a person of unsound mind. But how is a doctor going to satisfy himself that a criminal offence has been committed? What evidence will he have before him? The only evidence is likely to be that of the girl or woman concerned. She may allege that she has been raped. Such assertions are sometimes made by a girl who finds that she is pregnant after there has been intercourse with her consent. If this paragraph remains in the Bill, there may be many more allegations of rape and, as I see it, no doctor would be in a position to establish the truth or falsity of the allegations.
It seems to me that this paragraph requires the doctor to undertake the functions of a judge and jury and to decide whether a criminal offence has been committed. And whether a criminal offence of having unlawful intercourse with a girl between 13 and 16 has been committed may in some cases depend on the accused's belief as to the girl's age. If he is under 24 and has not previously been charged with a like offence, he is not guilty of having unlawful intercourse with a girl between 15 and 16 if he believes her to be 16 or over and has reasonable cause for that belief. Under the Bill as it stands, a doctor would be required to consider all these matters. How is a doctor going to satisfy himself about that? The man concerned will not be a patient of his, and the doctor will have no machinery for investigation. Surely the test in such cases should be whether the continuation of a pregnancy is likely to cause serious injury to the mental or physical health of the woman or girl, and not whether there has been criminal conduct on the part of a man.
Doctors are best qualified to judge of the effect of a pregnancy on a woman or girl, and I should have thought that if we enacted a provision of this kind we should have to go a long way to find a doctor who would not express the opinion, for a girl of 12 or just over, that to have a child as a result of rape would be a serious risk to her mental and physical health. That is why, in my belief, if we make the test whether a pregnancy will really affect the woman's health, that will cover the vast majority of cases—I would 1154 think all those cases—with which one has so much sympathy, where pregnancy is due to rape or some other criminal offence. Whilst sympathetic with the arguments advanced by the noble Lord, Lord Silkin, I am bitterly and strongly opposed to paragraph (d), because it is asking doctors to undertake what they are not really well fitted to perform. I think that we can achieve the same results by a proper interpretation of the test which I have recommended.
I must admit that I am not at all happy about paragraph (b). Paragraph (b) can be looked at from two aspects. It is the paragraph that gives the doctor a right to terminate a pregnancy if there should be grave risk of a child being born grossly deformed or with other serious physical or mental abnormality. If it be the case that the mother feels that her child will be abnormal, whether because she has caught German measles during pregnancy or for any other reason, and her fears are of such a character that they can affect seriously her mental or physical health, then the test which I have adumbrated, which accords, as I think, with the present law, would apply. But if there is no ground for saying that her health will be affected, none the less we are asked to agree that pregnancy can be terminated if there is a grave risk that the child will be born grossly deformed or with other physical or mental abnormality. In some cases, no doubt, a doctor can say that there is a risk of abnormality or deformity, but I should be interested to know whether during a pregnancy he is in a position to assess the gravity of the risk.
The noble Lord, Lord Silkin, referred to cases of German measles. It is well known that here there is a risk that children will be born deformed. I am told that 30 per cent. of the children born of mothers who have had German measles are born deformed. Is it to be said—and I am looking at this now not from the point of view of the mother but from that of the child—that there is a grave risk of abnormality where the mother has German measles, when 30 per cent. of the children have been horn deformed? Is the potential life of the remaining 70 per cent. to be destroyed on that account? I must say that I find this a very difficult question upon which to express an opinion.
1155 When two or three children have already been born deformed, it will no doubt be possible to say that there is a grave risk of the next child also being born deformed, and in the case of thalidomide babies one can say that there is a grave risk of abnormality or deformity, but can any doctor say with any certainty how serious the abnormality will be? Under this Bill, as it stands, he is required to reach a conclusion before the sixteenth week of pregnancy on how serious the physical or mental abnormality might be. Being born without an arm or a leg would constitute a serious physical abnormality within the meaning of this clause, but surely to destroy a potential human life on that account would not be justifiable?
I do not think that paragraph (b) provides the right test. As I said, if there is any danger to the health of the mother owing to her fears, then that could be dealt with under the principle I have put forward. But if one is looking to the child alone, as I think the paragraph requires one to do, then I do not think that the paragraph provides the right criteria. It is difficult to define it with any precision, but I think that a better test than the one provided in the Bill would be to say something to the effect that abortion should be lawful if there is a substantial and unacceptable risk that the child will be born in such a physical or mental condition that it will have no or little prospect of living a reasonable or normal life.
I must say that I am strongly opposed to paragraph (c) of Clause 1. To destroy a potential human life because in the opinion of a doctor the mother is unable to assume the legal and moral responsibility of caring for it is, I think, quite unjustifiable. If, after the child has been born, it appears that the mother is not suitable to look after it, then, surely, provision can and should be made for its proper care and custody. But to say that, because of an opinion before the birth of the child, the mother is unsuitable to assume legal or moral responsibility for it, seems to me a wholly inadequate ground for making sure that the child shall never be born.
The noble Lord, Lord Silkin, indicated, to me, at any rate, that he was not very 1156 firm in his support of Clause 2. I must say that I think Clause 2 is quite illogical. If you recognise that in certain circumstances the termination of a pregnancy can be lawful, then it seems to me quite illogical to provide that that termination should be illegal, even though those conditions exist which would justify termination, after 16 weeks of pregnancy. I recognise that termination after that time may be more serious, and may, indeed, involve a most serious operation; but I think it should be up to the doctors concerned to assess the risks of the operation against the risks to the woman if the pregnancy is allowed to continue. I would leave it to the doctors to decide whether it be right to terminate after the sixteenth week. I cannot see why what should be lawful in the sixteenth week should be illegal both in the seventeenth or later weeks, irrespective of the health and condition of the woman. I should therefore like to see Clause 2 out of the way.
This also applies to Clause 3, because Clause 3, about which the noble Lord, Lord Silkin, said so little, really imposes an impossible burden of proof on the prosecution. It requires the prosecution to prove beyond reasonable doubt that the operation was not performed in good faith in the belief specified in this Bill. But how on earth the prosecution are going to be able to prove conclusively that the man does not believe what he says he believes, I do not know. The prosecution might adduce a mass of evidence to show that his belief was wholly unfounded, that it was totally unreasonable, and that there were no adequate grounds for it. None the less, unless they could prove that he did not hold the belief he said he held, any prosecution would be bound to fail. This clause really does provide a charter for abortion, and if it remains in the Bill there is really no need to worry very much about drafting with care and precision the conditions under which abortion should be lawful. The onus of establishing that the operation was lawful should rest on the defence. It should not be a heavy onus, and if the procedure I outlined at the beginning of my speech is followed, the fact that the operation has only been performed on the opinions of two doctors gives, in my view, entirely adequate protection to those concerned.
1157 Clause 4 is rather nebulous. I should like to see that clause say in terms that the operation should not be lawful save with the written consent of the pregnant woman, or, if she is under 16, one of her parents or guardian. I think, also, that some amendment of the Infant Life Preservation Act 1929 is required, and if this Bill is given a Second Reading I would ask the noble Lord, Lord Silkin, to consider that.
Those are my criticisms of this Bill. I am afraid that they cover almost the entire Bill, with the exception of Clause 5. I am sorry to say that, for the reasons I have given, I think that this is a badly drawn, wholly inadequate, and to me, I say quite frankly, a most disappointing Bill. I hope it will not be assumed, because I have been so critical, that I am against legislation on this subject. I would support wholeheartedly a Bill which proceeded on the lines that I have suggested, with the two heads—and I think they are all that is necessary—making it lawful to terminate a pregnancy when there is serious risk to the health of the mother, or where there is a substantial and unacceptable risk that the child, if horn, will have no or little prospect of living a reasonable, normal life.
In these circumstances, in considering this Bill I have found it difficult to make up my mind whether, holding these views, I should seek to ask your Lordships to reject this measure. I speak for myself alone. On this question there are no Party views, and no doubt in this debate each of us will express his own personal opinions and we shall give effect to them when, as the noble Lord said, we stand up to be counted. If the views that I have expressed meet with the support of the majority of your Lordships, I believe the best course that could be followed by the noble Lord, Lord Silkin (I am not suggesting that he should refer the matter to a departmental committee, or anything of that sort, which I agree would cause considerable delay), would be to withdraw this Bill and to reintroduce a fresh Bill on the lines that I have suggested. If the noble Lord were prepared to take that course, I should be only too ready to give him such assistance as I could; and I would hope, too, that the Government would make avail- 1158 able the assistance of Parliamentary draftsmen to produce a proper and workman like measure, which with the greatest friendliness to the noble Lord, I must say I do not think this Bill is. This is a Bill that requires not just amendment; it requires to be wholly rewritten from start to finish.
If the noble Lord does not take that course, then, as I see it, we shall have a very long and protracted Committee stage, and at the end of it we may not get out such a good Bill, satisfactory to those who want to see legislation on this subject, as if a further attempt were made at redrafting. I hope the noble Lord, when he has heard your Lordships' views, will accede to the request I am making, in all friendliness, if the majority of your Lordships' views accord with those that I have expressed. I think that this would save a great deal of your Lordships' time. I would certainly want to see a new Bill produced as quickly as possible.
If the noble Lord at the end of this debate says that he is not prepared to take that course, despite his observations at the end of his speech that abstention would be read by him as a refusal to support this Bill, I think the proper course for me to take is not to vote against it and not to vote for it, but to abstain. I feel that I cannot vote for this Bill, because it really does not contain within it a single proposal that I can support. On the other hand, I do not want to vote against it, because I want to see a Bill on this subject on the Statute Book as soon as possible. So I would ask the noble Lord to consider seriously the suggestion that I have put before him. I believe that if he were to take that course—I may be wrong; and the debate will show if I am—he not only might save a great deal of your Lordships' time, but would also materially increase the prospect of the Bill going to another place early this Session, and so materially increase its prospects of being enacted.
§ 4.0 p.m.
TILE LORD BISHOP OF SOUTHWARK
My Lords, I rise to speak, but very briefly, as most of the things I wanted to say have already been said and the conclusions I wanted to draw have already been drawn with such clarity and force 1159 by the noble and learned Viscount, Lord Dilhorne. Like the noble and learned Viscount, I find myself in a difficult position. I agree with the basic aims of this Bill, but the wording is unsatisfactory. In fact, that is an understatement, for it is so unsatisfactory that I hope the noble Lord, Lord Silkin, will withdraw the Bill and bring us something better.
Let me say at once that this is not a delaying tactic for the sake of delay. As I shall say later, I will have nothing whatever to do with the Amendment, which I deplore. Nobody who has spent many years as a parish priest, both in the east end of a large city and then at Cambridge, would want the present position to continue. To suggest that our choice is between abortion and no abortion is utterly unrealistic. Abortion happens every day: if a woman has the money, then in a nursing home; if she has not, then in a back street. No, my Lords, our choice is between recognising abortion or conniving at it; between taking steps to regularise it and allowing it to happen in secret and, perhaps, in sordid and dangerous conditions.
As I understand it, the purpose of the Bill is to bring the matter into the open and cause society to treat it in a helpful and constructive way. This I applaud; but what worries me about the Bill is that, as it is now drafted, it is neither as helpful nor as constructive as it might be. I would draw your Lordships' attention to the following points. First, the Bill makes no explicit provision for consultation with the father, although Clause 4 may make it implicit. I am, of course, referring to those cases where the child is conceived in wedlock. The question I ask the noble Lord, Lord Silkin, is this: if he believes, as I am sure he does, in the sacredness of the family unit, does he think that the decision to have an abortion should ignore the wishes of one of the parents? Surely, the decision should be a shared responsibility from the earliest moment. If possible, father and mother should be agreed. There may be instances when their views will differ, and in the last resort it may be right that the mother, or a third party, should make the ultimate decision. Of this I am uncertain. But one thing is clear to me: that for the preservation of family life the law should explicitly state that the father, when 1160 known, should be consulted. It is right that he should have the opportunity to make his views known. What happens should be, in any responsible society, the concern of both parties, and not just of one.
Second, the Bill places too heavy a responsibility upon the medical practitioner. I have the highest regard for the medical profession, but is it fair to expect a man who may be overworked and subjected to many pressures, to make such a grave decision? Would it not be better to ease the burden by requiring him to consult another doctor, or possibly a small tribunal designated for this purpose? Moreover, what is to happen if the medical practitioner has conscientious scruples? Is his refusal to be final? Similarly, if he has scruples of another sort, is his decision to be final? These questions demand a greater consideration than is given to them in this Bill. The right to live is a serious matter. It concerns not only the mother, the father and the child, but society itself—and society has the right to insist upon adequate safeguards.
Third, Clause 1(a) allows abortion if the birth of a child should cause undue strain to a mother in caring for it. I am not quite sure what this means. What is the definition of the word "strain"? Who is to determine the definition? The nurturing of a child usually involves strain. How can a medical practitioner decide, before birth, the degree of strain that will be placed upon the mother after birth? And even if it could be proved that the strain of nurturing would be excessive, does it necessarily follow that the child should not be born? Those of us who have had experience of adoption societies know what can be done to provide happy homes for children who, for one reason or another, have to be taken away from their parents. If this Bill, as it now reads, should become law, it might mean that children who could grow up happy, useful, citizens, the joy of their foster parents, will never see the light of day. I am glad, if I may say so with respect, that the noble and learned Viscount drew our attention to that matter. It seems to me to be a matter of great importance. We, as responsible legislators, must ask the noble Lord, Lord Silkin, to think about this again.
1161 Fourth, Clause 1(c) is as unsatisfactory as Clause 1(a), and for similar reasons. The medical practitioner may terminate pregnancy if he considers the social conditions in which the mother is living make her unsuitable to assume the responsibilities of motherhood. What is meant by "social conditions"? And how does one become qualified to pass a judgment upon them? Are we to assume that a degree in medicine gives to the holder of it such insights into sociological problems that he is competent to determine by himself, and without consulting anybody else, what are suitable or unsuitable social conditions? Now it is just no good saying that the answer is obvious—it is not. Social conditions in a slum or, for that matter, in a cattle stall, may be prejudicial to mother and child, but not necessarily so, as I could prove to your Lordships, whereas social conditions in Belgravia may be beneficial, but we must not necessarily suppose that they are. This paragraph is too loose, too vague and (dare I say it?) incompetent in draftsmanship. If the intention is that home circumstances should be taken into consideration, then there must be some sort of tribunal under the chairmanship of a qualified social worker and assisted by local officers to hear evidence and to decide.
Fifth, Clause 1(d), in intention, will commend itself to many of your Lordships, as it does to myself. It is, however, not sufficiently definite. The words of a patient are not always reliable. If possible, a medical practitioner should require a notification from the court in which it was ruled that an offence had been committed; but very often the verdict of the court may come too late, in which case provision must be made for an appropriate authority to give the permission.
Sixth, I wonder whether the framers of this Bill have given sufficient thought to Clause 3, and in particular to the words:within the time specified for terminating pregnancy.There may be a considerable delay before a prosecution is launched, and unless the Legislature were to include a provision for preserving the fœtus in all cases of abortion for a specified time of considerable length, I do not see how the prosecution could prove its case. Unsuccessful 1162 prosecution would only serve to bring the law into contempt. The clause as it now stands is not practicable.
My Lords, this Bill is unsatisfactory. This Bill is a ramshackle affair. This Bill should be withdrawn. I regret this conclusion as I am a supporter of the noble Lord, Lord Silkin, in his attempt to treat abortion intelligently, as befits an adult society. Let him withdraw the Bill and at a later date come back to this House with something that is more worthy of his cause. In the meantime, the questions to which I have drawn your Lordships' attention must be faced and answered. Perhaps the way forward is for the Government to set up an Inter-Departmental Committee or an appropriate body of this kind. This Committee would take into consideration the advice of the Churches, the medical profession, the legal profession, psychiatric and social workers, together with other interested parties, and it would then have the evidence on which to base an informed opinion. The Church of England Board of Social Responsibility will shortly be producing a Report of this nature.
This informed opinion we must have if we are to deal with a situation which, in my judgment, ought to have been dealt with long ago but which, for one reason or another, Parliament has shirked. We can shirk it no longer, and for this reason I deplore the Amendment and will vote against it, and I salute Lord Silkin's courage in compelling us to face the issue. I want him to succeed, and it is for this reason that I hope he will tear up what I can only describe as this sad little piece of paper and then come back to this House with a Bill which will do justice to his cause.
§ 4.13 p.m.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, once again your Lordships' House is called upon to consider a moral and social issue of deep public concern, on which the Lower House has not yet found opportunity to express a view. Abortion is about acute human suffering and misery—about life and death. And, whatever views we may hold, there is not one of us who is not grateful to my noble friend, Lord Silkin, for this opportunity, 1163 or who does not sympathise with his motives in presenting the proposals which he has put to us, so persuasively, and with such warm humanity. No one with knowledge of the agony, physical disasters, and misery of the unskilled abortion can fail to recognise it as a serious, social, evil. No one with knowledge of the frantic distress that can be caused by an unwanted pregnancy, can fail to understand, even though one may not condone, the desperate efforts of the girl to terminate it.
But it is easier to deplore and recognise the evil, than to find an effective and acceptable remedy. This is a most difficult and controversial subject on which there are widely divergent, and sincerely held, views. These divergencies have little connection with social class and none with Party politics. It is for this reason that Her Majesty's Government's attitude to the Bill is one of strict neutrality. We want the free opinion of the House, and my noble friends on these Benches are free to vote as they wish.
In my view, on an issue such as this, from which it is impossible to exclude emotion, personal neutrality is not possible. I shall therefore express no personal opinion. I propose instead to discuss first the principle of permissive abortion, paraphrasing the arguments of leading protagonists for and against, and then mention some of the practical difficulties of the main proposals in the Bill.
The protagonists on both sides take their stand in the name of humanity. Those who oppose an extension of legal abortion do so because they regard it as the legal killing of an unborn child. A fœtus at 13 weeks, they point out, has a heart that beats, limbs that move, and a strong instinct for survival. Though still in the womb, it is a human life. What is the essential difference, they ask, between the life which is aborted at 13 weeks and the baby prematurely born at 6 months? If the killing of a new-born infant is unthinkable, how can we allow the killing of the live unborn? How can a nation which has just abolished the legal killing of murderers, sanction the legal killing of a baby?
On the other hand the advocates of abortion law reform ask us to think, not of the unborn child, but of the prospective 1164 mother. As my noble friend Lord Silkin mentioned, they claim that in Britain there are 100,000 illegal abortions a year. This, of course, can be no more than a guess, and it might well be that, if abortion was legally available to all, the numbers would be much larger. These assumptions apart, it is right that the reformers should draw our attention to the appallingly large number of furtive, degrading, back-street abortions, and to the fact that many of them occasion mental and physical distress and agony, whilst some entail permanent injury or death for the mother. No one who saw the television film Up the Junction can have any illusions about the nature of the evil we are discussing.
These, my Lords, are the arguments for and against the principle of abortion. Your Lordships have to decide between those who start from the principle that abortion involves the destruction of a human life and thus cannot be justified, and those who start from the principle that no woman should be compelled to give birth to a child she does not want. I say "start from the principle", because these are not the alternatives before your Lordships to-day. If you reject this Bill the Case Law which has been built up will still leave abortion legal, in certain limited circumstances. And if you pass this Bill, as my noble friend Lord Silkin pointed out, you will not be legalising abortion at will. The Bill would not, for example, affect the type of case portrayed in the television film to which I have referred. Even if we passed this Bill we should still be living in a world in which many thousands of teenage girls and young women would conceive in ignorance and abort in terror.
The choice before your Lordships is not between accepting one or other of the two extreme positions, but the much more difficult one of deciding where the line should be drawn between them. In taking this decision you may find it helpful to consider the following three questions. First, is it right, in principle, to give statutory authority for abortion? If you answer "No", there is an end to the matter. If your answer is "Yes", you must answer the second question: how far, and on what grounds, should the law be relaxed? And, thirdly, in what way will it be practicable to make these changes and still enforce the law against those who would go beyond it?
1165 May I mention some of the factors the House must take into account in answering these questions? My noble friend Lord Silkin mentioned that opinion polls showed that 75 per cent. of the members of the public are in favour of reform of the law. Your Lordships will know that I have consistently held that Parliament should do what it considers right and refuse to be governed by Gallup Poll, but we can be in no doubt that attitudes toward abortion have changed and are changing. There is an increasing public awareness of the serious social problem of illegal abortions and a greater understanding of the distressing circumstances which can lead women to it. There is a substantial body of opinion which believes that the present law is unrealistic and inhumane. They argue—and Lord Silkin gave some graphic examples in support of the argument—that it is wrong that thousands of law-abiding women should be driven each year to risk their lives in misguided efforts to terminate pregnancy and that much of this is due to the narrowness and uncertainty of the present law. It is important in this connection also to remember the growing support for these views which is coming from various women's organisations, including, as I think my noble friend said, the National Council of Women and the National Union of Townswomen's Guilds.
We must also attach special weight to the views of the medical profession. The proposed changes would impose considerable responsibilities upon doctors, and we have to be sure that they are willing and able to carry them. Last year, as I understand, 70 per cent. of the 750 London doctors who took part in a survey organised by the Abortion Law Reform Association pronounced in favour of reform of the law, and the Socialist Medical Association are also in favour. On the other hand, there is evidence of apprehension among the medical profession about the responsibilities which it would impose. We cannot ignore the fact that the Annual Representative Meeting of the British Medical Association passed a resolution in July calling on their Council to set up a committee to study the matter and urging the Government not to introduce any new legislation until the committee have reported. I understand that the B.M.A. Council have agreed to appoint this com- 1166 mittee and it will be starting work soon; I am not sure whether my noble friend is right in saying it started work to-day.
There are those who will agree with Lord Silkin that the matter is too urgent to await further lengthy deliberations. But I think it is important that the House should bear in mind that the medical profession, whose members would have to operate the new law, have not yet committed themselves to support any change. Even if the committee eventually report in favour of reform, their detailed observations will be of considerable importance in framing legislation. We have also just had a suggestion from the right reverend Prelate the Bishop of Southwark that the Government should set up an Inter-departmental Committee. I cannot at this stage enter into any commitment, but the Government will certainly consider this suggestion.
I now turn to the detailed proposals in the Bill. I find that at least in some respects I shall be echoing things that have already been said by the noble and learned Viscount, Lord Dilhorne, but I think I owe it to your Lordships, and certainly to my noble friend, to state the Government's views on these matters as they may help in framing decisions in regard to Amendments if the Bill should go to Committee.
We have already been reminded that it is the law that a doctor may lawfully terminate pregnancy if the abortion is carried out in good faith for the purpose of preserving the life of the expectant mother or her mental or physical health. This has been established by the rulings of the courts, and, as my noble friend Lord Silk in made clear, the primary object of Clause 1(a) is to give statutory effect to these rulings. I do not accept the view expressed by my noble friend, and indeed by the noble and learned Viscount, that there are any real doubts about the present law. In practice, there is now no risk of a doctor being prosecuted for having terminated a pregnancy in good faith on these grounds, particularly since the police are required to report to the Director of Public Prosecutions any alleged offence of abortion, and consistency in prosecution policy is thus assured.
Nevertheless, I think many of us would agree with the noble and learned Viscount, Lord Dilhorne, that it would 1167 be better to put the law on a statutory basis, though we shall need to give careful consideration to the precise form of the statutory provision by which we seek to do it.
§ VISCOUNT DILHORNE
My Lords, if I may intervene, I was not suggesting that there was any uncertainty about the existing law. I said that the uncertainty lay, though some might think it unlikely, in the possibility that a higher court, if it had to consider the question, might say that a different interpretation from that given by judges in the well-known cases was to be placed on the Statute. I did not express the view that the law was at present uncertain.
§ LORD STONHAM
I recall the noble Viscount's reference to the higher court, but my impression was that before he came to that he felt there was some uncertainty about the law, and I am glad to have his agreement that that is not so.
Clause 1(b) brings us to the first of the proposed extensions of the law, and your Lordships will appreciate that this and the remaining provisions of the clause take us beyond the purely medical grounds on which abortion is at present permitted. Good reasons can be advanced in support of each of them, but they are eugenic or sociological or humanitarian reasons, not medical ones. If a woman's health is clearly endangered by distress at the likelihood of bearing a deformed child, then abortion may be legitimately carried out at present. But we may well ask whether this is not an encouragement to artifice, and whether we are not right to insist, as we do now, that the more balanced woman must be left to put up with the fearful prospect, as it is to some, of bearing a deformed child. At the same time, we have to remember that, despite the many advances in medical science, it is still not possible to forecast with any reasonable certainty that in any particular instance a child will be born normal.
There are various circumstances which may lead doctors to fear that a child may be born defective. As has been mentioned by my noble friend, a common cause of malformation is where a mother has contracted rubella during pregnancy. Or the condition may be due to the mother having taken certain drugs during pregnancy. Your Lordships will not need 1168 to be reminded of the thalidomide tragedies. My noble friend referred to the grave danger of having a malformed child under such conditions.
In none of these cases, however—and I would emphasise this point—is there anything approaching certainty that there will be abnormality in the child. A report published by the Ministry of Health in 1960 of an investigation into rubella as a cause of malformation showed the risk of major deformity in the baby to be about 15 per cent. (the noble and learned Viscount mentioned 30 per cent.) which is less than one in six. Even in the best-known instances of transmittable diseases the chances of serious abnormality in the child are seldom more than one in three. Given these facts, we have, I suggest, to weigh very carefully the desirability of this obviously humane proposal against the very real danger of terminating the life of a child who may yet be born perfectly healthy, and to consider also the tremendous responsibility this would place on the doctors who would have to perform the operation. On this point, also, I would say that for thirty years I have worked with the blind and disabled, and more recently with the mentally handicapped, and I have never met parents of physically or mentally handicapped children who did not love and cherish them at least as dearly as their normal children.
Clause 1(c) proposes that abortion should be lawful, on the ground thatthe health of the patient or the social conditions in which she is living (including the social conditions of her existing children) make her unsuitable to assume the legal and moral responsibility for caring for a child or another child …".This proposal is not included in the declared aims of the Abortion Law Reform Association, and I venture to think that it will not command the same sympathy as some of the other proposals. It is aimed against a very real social problem: the situation, for example, of the harassed mother who already has a family of children and simply cannot cope with another; and it is stimulated by concern not only for the mother but also for the unborn child. But many, I think, will feel that the proposed ground is too imprecise. It is not primarily a medical ground, and it is arguable that it should not be left to doctors to decide. "Social conditions", would presumably cover 1169 the case of a woman with five or six children living in two rooms. It may be undesirable to bring another child into the world in such conditions; but it is surely arguable that rehousing, not abortion, is the answer. Even if the clause were more closely defined, there would seem to be a real risk of inconsistency and abuse in the absence of any special machinery for selecting the cases in which it was proper to act.
Clause 1(d) provides for termination of pregnancy on two quite distinct and unrelated grounds: first, where there has been a criminal assault; and, secondly, where the mother is a person of unsound mind. I am sure that there will be general agreement that, if there is to be an extension of the law, there is no more compelling reason for allowing a woman—or very often a young girl—to have her pregnancy terminated than where it has been forced on her by criminal violation. But, providing for such cases in a Statute raises, as the noble and learned Viscount pointed out, a number of very difficult practical problems.
It is relevant to mention here the views of the Interdepartmental Committee on Abortion, which sat under the Chairmanship of the then Mr. Norman Birkett, K.C., and reported in 1939, and to which the noble Lord, Lord Silkin, has already referred. The members of the Committee were very sympathetic to this proposal, and reported against it only because of the practical difficulties. The problem is who is to decide, and how, that the pregnancy has resulted from a criminal offence. The matter is not wholly a medical one; and there are obvious opportunities for alleging an assault simply to get rid of an unwanted pregnancy. Any limitation to cases where there has been a conviction would exclude very deserving cases—for example, where the offender cannot be found or, for some reason, cannot be proceeded against. This would probably delay action until it was too late. On the other hand, a decision to terminate pregnancy without waiting for the result of proceedings would be to prejudge issues which might eventually be tried by the courts. These arguments are as cogent and as difficult to-day as they were in 1939. You may not agree that they are of overriding force, but they must be stated.
1170 Other questions arise, as the noble and learned Viscount pointed out, as to the particular offences to be included as criminal assaults qualifying for the legal termination of a pregnancy—for example, the offence of intercourse with a girl under 16. Such intercourse is unlawful, and it is not a defence for a man charged to plead that consent was given. In these circumstances it is reasonable for the supporters of the Bill to argue that any girl who becomes pregnant before reaching the age of 16 should be legally entitled to have her pregnancy terminated. On the other hand, it is a fact that consent is often freely given. We have to ask: is it right in these circumstances that a girl who has willingly entered into sexual intercourse, in the full knowledge of what it means, should be entitled by law to have an abortion procured? Some may feel that such a provision would be a condonation, if not a positive encouragement, to promiscuity among young girls. Then there is a further complication arising from the fact that in certain circumstances it is a defence for a man charged with this offence to show that he had reasonable cause to believe that the girl was over 16. Here again, we have to consider whether it is desirable to allow a legal right to abortion to a girl who encourages a man to believe that she is over 16 in order to have sexual intercourse with him.
The second part of Clause 1(d), where the mother is of unsound mind, takes us back to eugenics, and to questions of the inheritance of mental disorder and defect. Apart from questions of principle on which I make no comment, the term "person of unsound mind" is, I am advised, out of date, and my noble friend, would in any case need to reconsider it in the light of the present statutory classifications of mental disorder contained in the Mental Health Act 1959.
Passing to Clause 2, we have to consider the important question of the safeguard against the performance of the operation at a dangerously late stage of the pregnancy. Previous Bills on this subject would have restricted the time during which the operation could take place to the first thirteen weeks of pregnancy, in all cases except where there was danger to life. This Bill would allow 1171 the operation at any time, not only where there is danger to life, but also if there is risk to the mother's health or the likelihood that the child will be abnormal; in other cases the limit is extended to the sixteenth week of pregnancy. Is this perhaps going too far?
I should mention here another important respect in which this Bill differs from previous proposals. The Birkett Committee, in proposing that the Bourne directions should be given statutory effect, recommended that the doctor should be obliged to take a second opinion, except in urgent cases, and this safeguard was embodied in previous Bills. There is no similar safeguard here. Of course, the absence of such a provision may mean no more than that the doctor would not be under a statutory obligation to obtain a second opinion; in practice, no doubt most doctors would still think it right to do so. But many people may feel—and Lord Dilhorne underlined this—that it is altogether too risky to make substantial extensions in the grounds on which abortion may be allowed and, at the same time, omit safeguards which have hitherto been thought necessary.
Finally, I come to Clause 3, which has been referred to as a charter for abortion, and which deals with the burden of proof in prosecutions for performing the operation unlawfully. It is true that my noble friend's Bill preserves the present position under the Bourne and Newton and Stungo judgments, which place on the Crown the onus of showing lack of good faith. But we have to ask ourselves whether, with this very considerable extension of the grounds for legal abortion, the burden on the prosecution might not become so onerous that enforcement of the law would be virtually impossible.
My Lords, I have dealt in some detail with the arguments for and against these various proposals, because this is not a simple issue and the Government feel that account must be taken of both sides and of all views. We recognise and respect the sincerity and depth of conviction on both sides, and we do not think it right for the Government to seek to impose a view on the House. Therefore, as I have said, so far as we are concerned, there will be a free vote. There is a deep conflict of opinion, and even wide 1172 divergence of views among those who agree that some change in the law is desirable. This is because the issues are large ones—respect for human life, concern for human distress, desire for justice. Even on what might be considered incidental matters of procedure, we find ourselves coming back, again and again, to these fundamental questions of principle, and our own judgment of the matter must ultimately rest on our own personal values. The heavy duty of making a choice, and the choice itself, my Lords, is yours.
§ 4.42 p.m.
§ THE EARL OF IDDESLEIGH rose to move, as an Amendment to the Motion for the Second Reading, to leave out "now" and insert "this day six months". The noble Earl said: My Lords, in moving this Amendment I express much gratitude to the noble Lord, Lord Silkin, for his tribute to the sincerity of those who oppose him. It is almost unnecessary for me to reciprocate that compliment. No one who has sat in the House as long as I have with the noble Lord, Lord Silkin, can fail to recognise his high sincerity, deep devotion to principle, and great Parliamentary skill.
§ My Amendment has, however, been deplored by the right reverend Prelate. I learned the conventions of your Lordships' House rather a long time ago, between the years 1927 and 1939, and I dare say that my views are very out of date, but in those clays it was considered courteous, if you objected strongly to a Bill which was to be read a second time, to put down a notice to reject it or to see that someone else put it down. In my action, which I took at the last possible moment and when I had finally despaired of anyone else putting such a notice down, I was following what used to be the conventions of this House.
§ I think the noble Lords who have spoken so well in criticism of this Bill will save my troubling your Lordships with an over-long speech. The Bill is an extreme one, and the noble Lord, Lord Stonham, has told us the respects in which it goes beyond the Bill previously introduced in another place. In setting up no tribunal at all, it goes beyond the action of quite a number of foreign countries which have legalised abortion. It also goes beyond the practice of many 1173 States of the American Union, which allow therapeutic abortion, but only on the advice of a hospital committee. It is an extreme Bill and it is a premature Bill. We have heard that a committee of the Church of England has considered the matter, but the report of that committee has not yet been published. I have no doubt that that report will be a very distinguished piece of moral theology, but it has not yet been submitted to the Church Assembly, nor to the informed judgment and criticism of other theologians.
§ We have heard—and the noble Lord, Lord Brain, will tell us more about this—that a medical committee has been established to investigate this matter, and I understand that the British Medical Association would wish to defer judgment till that committee has reported. There is no doubt much that they will wish to investigate. Not all gynaecologists desire the abortion law reformed. One very distinguished gynaecologist—I do not know what his religious views are, or whether he has any—said to me: "The Bourne case and other legal decisions give me all the discretion that I want to have, and I have used that discretion on several occasions and removed the fœtus, though I hate doing it. But I do not want women coming to me and demanding an abortion as of right."
§ So much for my friend. But let us follow his point a little further. What use will it be if one doctor exercises his rights with great discretion and with great care, and another doctor does not exercise them so conscientiously? Naturally, judgments of medical men will differ, and there will perhaps be different views on the subject and different practices in different parts of London. Let your Lordships remember that it is a simple matter to change your family doctor; a simple matter to change your lodgings and to move to a quarter in which you expect that a more broadminded policy prevails, and where you will get your abortion with but little difficulty. Again, I hope that the committee will consider the position of conscientious objectors, and not only those among the doctors (and there will be many there) but also—and this is of some importance—those among the nurses. That, my Lords, is rather a serious issue.1174
§ Now in asking your Lordships to await the reports of the various committees I must make my own position clear. I speak from profound conviction, and my views will not be altered by the opinions of committees. I hope that many of your Lordships will sympathise with me and will oppose this Bill, if not for the reasons I have already given then for the other reasons which I shall give, of which this element of prematurity is one. Much has been said about the backstreet abortionist, and I need not go further into that matter. Of course, such abortionists will not be greatly reduced in number if this Bill is enacted. But I must say I am getting more and more doubtful of the legislative principle that if you cannot stop something bad from being done, then you had better legalise it, under restrictions. That was the basis of the last Gaming Act, and I must say I voted for it, but I am getting very doubtful whether I was right.
§ I now turn to the Bill, and here my notes are scribbled over with a large "D" in almost every place. The noble Viscount, Lord Dilhorne, and sometimes the right reverend Prelate also, have largely anticipated me, as was to be expected. As regards the phrase "strain of caring for it", of which the right reverend Prelate has spoken, I ask: what are the children's services for? What are the Dr. Barnardo's Homes and the other voluntary children's bodies for? I would beg your Lordships who follow me not to use the phrase "the unwanted child". It is a terrible phrase, and it is not true. These children are wanted by would-be adopters all over the country; they are wanted by foster homes, who welcome them; they are wanted by the voluntary societies, and they are wanted by the country. I have forgotten how many extra workers the country has got to have according to The National Plan. We need more workers.
§ But, my Lords, I feel somewhat personally about this matter. Many children are "in care" because their mothers cannot bear the strain of caring for them. I adopt words which are often heard from the Labour Benches—namely, "We are talking about people". I am talking about people. One noble Lord also used, very effectively, the phrase, "We are talking about boys and 1175 girls"; and I am talking about them. I serve on a children's committee. I know that very many of our children are in care because their mothers, sometimes through mental deficiency, are unable to care for them. I know that this girl is going to the technical college, that this boy is working in a garage and that this child has joined the Brownies; and upon their behalf I am a little affronted by a suggestion that they should have been doomed to non-existence.
Now the defective children. Well, let them speak for themselves, for they desire life. Your Lordships will remember that some years ago a woman in Belgium killed her thalidomide baby, and the ethics of that mercy killing were much debated. Three youngsters from a spastics school wrote to the Daily Telegraph a letter with which some of your Lordships may be familiar, but I do not think we can hear it too often:
Sir—We were disabled from causes other than thalidomide, the first of us having two useless arms and hands, the second two useless legs, and the third the use of neither arms nor legs.
We are fortunate only, it may seem, in having been allowed to live, and we want to say with strong conviction how thankful we are that no one took it upon themselves to destroy us as useless cripples.
Here in the Thomas Delarue School for Spastics, … we have found worthwhile and happy lives and we face our future with confidence. Despite our disabilities life still has much to offer, and we are more than anxious—if only metaphorically—to reach out towards the future.
My Lords, cripples have a purpose in life. Do you remember the story of the great novelist Henry James, who visited a hospital for war wounded? He was taken to the bedside of a man who was limbless, dreadfully wounded, and in despair. The man said to him, "I'm finished". Henry James answered, "My dear fellow, your work has only just begun. From now on your work is to call out from other people the noblest qualities in humanity".
§ Finally, on this point, are we not in danger of encouraging infanticide by those women—there are a few—who murder their ill-formed babies? If this Bill had been passed a short time ago, that Belgian woman would have been able to say, "Had this defect in my baby 1176 been discovered as it lay in my womb, then, with all the sanction of the law, the doctor and I could have agreed to slay it. As it was stricken, even though it was viable, we could have killed it." What is the moral difference that that short time has made?
§ Then there is the "social conditions" clause. Here, I express a little mild criticism and a certain surprise that so exceedingly competent a noble Lord as Lord Silkin should have used such a very imprecise phrase as "the social conditions". What does it mean—or, rather, what does it not mean? Almost anything, I think. Housing, certainly. I picture a woman going fearfully and humbly to her housing officer to ask for a council house "because I am afraid there is another little one on the way", and his saying, "No, you cannot have a house but you can get an abortion, and I will give you a social conditions certificate to show your doctor". What else could it mean? Is it her employment? Does every model get an abortion as of right? And what about the "social conditions", as has been mentioned, of those who live in Mayfair and who say: "Doctor, we are in society and we have certain social obligations." The doctor is concerned with health, not sociology. He has not been trained in case work and there is no one to do it for him. He cannot investigate these hard luck stories.
§ Sufficient has been said, perhaps, by the noble and learned Viscount, Lord Dilhorne, about the next paragraph, which makes a doctor not only a sociologist but also a magistrate. The noble and learned Viscount has perhaps said enough, and indeed there is need to say very little. Those of your Lordships who are magistrates know how difficult it is to make firm decisions in certain cases of rape, procurement, or incest. The magistrate has the advantage of evidence on oath, of cross-examination and of counsel, and he will, no doubt, through those helps be able to reach a just decision. But the doctor's consulting room cannot be made a court of law. This paragraph opens the door wide to any woman who is prepared to tell her doctor—he may be her very recent doctor, who knows nothing of her family—a string of lies.
§ My Lords, what should we do? I very much hope, with some confidence, that the 1177 noble Lord, Lord Silkin, will see fit to withdraw the Bill. How much many of us would congratulate him and thank him for that decision! But, if not, the noble and learned Viscount, Lord Dilhorne, has pointed out that almost every clause contains most dangerous matter and is highly unsatisfactory. I do not know, with any precision, on what criteria one should vote for the Second Reading of a Bill. This is not, after all, a Resolution. The noble Lord could have moved a Resolution in favour of the reform that he desires and it would have led to just as interesting a debate as has this Second Reading of the Bill; but he has moved a Bill. If you think with the noble and learned Viscount, Lord Dilhorne, or with the right reverend Prelate, who spoke a little strongly at the conclusion of his speech, I cannot see how, with whatever reluctance, you can take any step other than to vote against the Second Reading. My Lords, I beg to move the Amendment to the Motion.
§ Moved, as an Amendment to the Motion for the Second Reading, to leave out ("now") and insert ("this day six months").—(The Earl of Iddesleigh.)
§ 5.5 p.m.
§ LORD BRAIN
My Lords, I welcome this Bill because I am sure, from inquiries I have made among medical colleagues, that the present state of the law relating to abortion is unsatisfactory. It is unsatisfactory that doctors should be put into the position of having to make up their minds whether what they may do will fall within the interpretation of the law as decided by judges many years ago. I am told that, as a result, it is often difficult to get a gynæcologist to terminate pregnancy in a case where all the doctors are agreed that on medical grounds it is desirable. The law, therefore, I am sure, needs to be defined; but I am bound to say that in many respects I think the present Bill falls far short of a satisfactory definition.
May I take first Clause 1(a)? Here I find that the indications for the termination of pregnancy set out in the Bill conform fairly accurately to what is the current practice. But there is one unfortunate departure to which the noble and lea riled Viscount, Lord Dilhorne, has already alluded. That is the fact that under the Bill the decision rests with a 1178 single registered medical practitioner. It is the current practice, before a termination of pregnancy is agreed to, for the opinion of a consultant in the relevant field to be obtained. I am sure that any Bill that becomes law should embody that provision and should require certificates from two doctors, one of them to be an appropriate consultant, whether psychiatrist, heart specialist or whatever the case demands.
I also agree with the noble and learned Viscount that it is very desirable that one certificate should come from the family doctor. But, for obvious reasons, this is not always practicable. He might have a conscientious objection to it, or he might be a close personal friend and the patient might not want him to know what has happened. We must take account of that possibility. But the difficulty might be overcome by requiring the second certificate from another approved practitioner.
Some mention has been made of the provision that the strain of caring for the child should be taken into account. I think that the difficulties of this have perhaps been rather exaggerated; because it is the current practice to take it into account to some extent, and in suitable cases. For example, if a woman has severe heart disease or a disabling disease of the nervous system, it is relevant to consider not only what the immediate effects on her physical health of the pregnancy going to term will be, but also what will be the effects on her physical and mental health of having to care for the child after it is born. I am told that is a current consideration in many cases.
When we come to the next clause, there are, as has already been pointed out, considerable difficulties. There are a wide variety of risks here, some of which are easy to estimate and some of which are very difficult to estimate. I think I should say something particularly about rubella (German measles) where the risk varies a great deal according to the precise stage of pregnancy at which the disease occurs. If it is at the most vulnerable phase—I think that is about the sixth to ninth week—then the risks are extremely high, and very responsible gynæcologists have told me they would regard that established fact as in itself indication for the termination of pregnancy.
1179 However, I think we should not lose sight of the fact that two possible principles are at stake here. We should be clear whether we are terminating the pregnancy because the child is likely to be born deformed or in the interests of the mother. If it is the former, then I think that a new principle is being introduced into law. But I cannot help thinking that all that needs to be done in this respect could be adequately covered under the existing Clause 1(a). It should take into account the state of the mother's mind and her fears, whether reasonable or not, as to what may happen, and also the doctor's estimate of the risk of a deformed child being born; and, I would say, the likely effect of that on the mother's future health. I think that if all these considerations are taken into account the factor can be adequately dealt with under the provisions of the existing Clause 1(a).
§ THE EARL OF IDDESLEIGH
My Lords, before the noble Lord passes from that point, may I ask him whether he will say something about what I understand to be the quite considerable success of the antidote to rubella known as gamma globulin now customarily administered to all pregnant women who are at risk from rubella and which has, I understand, a very high success ratio?
§ LORD BRAIN
My Lords, I believe that in general that is true. I am not enough of an expert in this field to be able to say what bearing that would have upon the risk of deformity at any particular stage of pregnancy.
With regard to Clause 1(c), I entirely agree with what was said by the noble and learned Viscount, Lord Dilhorne, about the risk of allowing a termination of pregnancy on the consideration of a single medical practitioner's belief with regard to the potential effects of the mother's social condition. But I think again that what we want to do, if we do want to do this, can be brought into the consideration of the mother's own mental and physical health. Indeed, I noticed that the instances which the noble Lord, Lord Silkin, brought forward of mothers threatening to commit suicide because of circumstances of a late pregnancy, and things of that kind, are exactly those 1180 which would normally be covered by the consideration dealt with in Clause 1(a).
With regard to Clause 1(d), I wish to discuss only the question of unsound mind. As was pointed out by the noble Lord, Lord Stonham, this is a term with no medical connotation at all. If the Bill is to go on, it is essential therefore that some definition of this term should be included. Your Lordships will already know the difficulties which arise in trying to define unsoundness of mind in relation to criminal responsibility. I should like to ask your Lordships to consider what might happen if a woman who was mentally ill had her pregnancy terminated on that ground and subsequently she recovered. What would be, or could be, her attitude to what had already happened? It may be that the noble Lord, Lord Silkin, will say that that is not what is intended to be dealt with in the Bill. If it is not, I think that a further ground for clarification.
Clause 2 deals with the time in which it is appropriate to terminate a pregnancy. I am advised by experts that there is no medical justification for limiting the period to the sixteenth week of pregnancy, and that the operation may safely be performed much later, though on general grounds it is desirable that it should be carried out before quickening occurs and at a time when, from a legal point of view, the result is a miscarriage and not a notifiable still-birth; that is, within 28 weeks. However, here again is a point on which differences of opinion occur and some medical opinions, at any rate, differ from the line taken by the Bill.
I believe that enough has been said already in this debate to show how complex are the issues dealt with by the Bill, and although, as I said, I welcome it in principle, I do not believe that the Committee of your Lordships' House is the most suitable place for all these difficult and technical questions to be discussed and decided. I know that this is the view of many doctors, and I hope that Her Majesty's Government will agree to set up an Inter-departmental Committee which would take evidence from all concerned and provide, I would hope in a reasonably short time, a considered report on which future legislation could be based.
1181 Your Lordships will have heard that the British Medical Association has in fact set up a Committee—not to-day, though it might have met to-day. It was set up in response to a resolution of the Annual Meeting last summer. I am quite sure that, if an Inter-departmental Committee were set up, the British Medical Association, and many other bodies, would be only too glad to give evidence to it. I know that this would take time, but surely it would be worth while to devote some time to a matter of such complexity and seriousness. I hope, therefore, that instead of trying to amend this Bill in Committee, it may be referred to an Inter-departmental Committee. I propose, nevertheless, to vote for the Second Reading of the Bill because I am in general sympathy with its objects, but hope that some better solution may be found when it reaches the Committee stage.
§ 5.18 p.m.
§ LORD DENNING
My Lords, the law as at present known is quite uncertain, in regard to doctors at least, but so far as the unqualified abortionist is concerned there is no difficulty. I should like for a moment to draw attention to the grave social consequences which appear in cases which come before the courts. I have tried such cases myself. The picture is all too simple—the married man and the unmarried girl or the other man's wife. The man says he knows of someone who will help, usually a middle-aged woman in a dingy house. There are clandestine appointments; crude instruments; the payment of money by cash, not by cheque; a conspiracy of silence of which no one ever knows unless the woman dies or is rushed to hospital with sepsis. I remember well a case in which a man was tried before me as being an accessary to the offence of manslaughter and I sentenced him to a substantial term of imprisonment. I remember a woman abortionist to whom I gave a sentence of nine months. When one thinks of the misery which is consequent on that situation one realises the serious and great social problem before us. That is one type of case.
The other type of case is of the medical practitioner, let me say the unscrupulous medical practitioner, as in a case which was tried before Mr. Justice Ashworth in 1958. A girl was recommended by 1182 one doctor, a doctor Stungo to another doctor, Dr. Newton, for termination of the pregnancy. She went and had an injection. She went back to her hotel and within a few days she was ill and died. When Dr. Newton was prosecuted he raised the defence that his action was justifiable on the ground of the girl's mental condition. Mr. Justice Ashworth gave a direction on the law which, so far as I know, has always been accepted. He told the jury:The law about the use of instruments to procure a miscarriage is this: 'Such use of an instrument is unlawful unless the use is made in good faith for the purpose of preserving the life or health of the woman'. When I say health, I mean not only her physical health but also her mental health. But also I have said 'it is unlawful unless'. I must emphasise and add that the burden of proving that it was not used in good faith is on the Crown.In spite of that direction to the jury, Dr. Newton was found guilty. I imagine that he could not succeed in showing that what was done was clone in good faith for preserving her health. I imagine also that there must have been many other cases in which he had been concerned, because the Judge sentenced him to three years penal servitude. It is cases of this type which come before the courts in the ordinary way.
I should like to say that, for the registered medical practitioner who acts in good faith for the purpose of preserving the health of the woman, after consulting a consultant—I have never known of such a case, at all events since the Bourne case, when it has been established that it is justifiable for good cause to terminate a pregnancy—that state of the law seems to me to be simply followed out in Clause 1(a) of this Bill. If it would do good to clarify it, by all means let that be done.
Then there is Clause 1(b). Assuming that a woman's health is not impaired, what about the case where the child may be deformed or suffer some kind of malformity or weakness? The law does not say what the position is there. I would only say that in a somewhat parallel case, where a man who was a porter in a hospital had himself sterilised so that he should have no further children by his wife, I held that this act was unlawful unless it was for a good cause. "Good cause" might consist in preventing the transmission of an hereditable 1183 disease. I know of no other statement or authority on such a matter as this, but, for myself, I would say that it was not unlawful, if a child was going to be born deformed—it might be a thalidomide baby—for the doctor in good faith to terminate the pregnancy. I draw that view on the general law as to operations, which is mentioned in Clause 4.
A surgical operation is, in law, an assault, unless done with the consent of the person operated upon. In all the cases under the Bill, of course, the woman gives her consent; but even that does not make it cease to be a criminal offence in certain circumstances. There are the old cases of the young and lusty man who had his hand cut off the better to be able to beg, and in the old days when soldiers used to have to bite their cartridges, of the soldier who had his teeth pulled out so that he could not bite his cartridges. In those cases, consent was no answer. Consent is no answer unless the surgical operation is done for a just cause. Although there is no authority upon it, I would suggest that it is open to the law to hold that there is just cause, and if there is a grave risk of a child being born grossly deformed or with other serious physical and mental abnormality, that may be just cause. But it is a case where surely it is desirable that the law should be known, so that medical practitioners may know where they stand.
In regard to the next two clauses, I am afraid that they go far beyond the medical sphere. As to belief that the social conditions in which she is living may make a woman unsuitable to assume responsibility for a child, that ceases to be a medical question and becomes a social one. Is it right to entrust that question to any body of persons to decide? It may mean opening a gap through which all the world may go.
As to paragraph (d), dealing with the rape of girls under sixteen and mental defectives, it all sounds a very humane provision, but those who practise in the courts know that girls may allege rape. It is always a question of consent or no consent, and girls of 15½ often, and usually do, consent. If this clause were to go through as it is, all these cases would be cases in which termination of pregnancy would be justifiable. I do not say it is wrong. My own inclination is 1184 to say that if termination of pregnancy were allowed only to registered medical practitioners after consultation with consultants, and maybe in these cases after further consultations with social workers and even magistrates, there might be a case for it.
I turn to Clause 2 and the sixteen weeks of pregnancy. I would repeat what the old Common Law says: that before quickening, the child is not considered in law to have a life of its own. Blackstone said:Life is the immediate gift of God, a right inherent by nature in every individual: and it begins, in contemplation of law, as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, or she is delivered of a dead child; this, though not murder, was by the ancient law, homicide or manslaughter.The old Common Law drew that distinction between the time before quickening and the time after quickening, though a woman may say that it is only a question of bringing on her child earlier.
It seems to me that there is a case for the consideration of this House, a case to make the law certain. It is fairly certain in regard to Clause 1 paragraphs (a) and (b), but it is necessary to consider whether or not, with adequate safeguards, paragraphs (c) and (d) may not be given effect. I would support the Second Reading of the Bill.
§ 5.28 p.m.
§ LORD AMULREE
My Lords, on the face of it, one must say that the State has signally failed to deal with the social problem of the illegal abortion. That is why I welcome this Bill. It is thought that about 100,000 women seek to obtain legal abortions during the year, and it looks, from the figures that one can get from the Emergency Bed Service, that the number of pregnancies which go wrong is increasing. There has been a fairly big increase in the number of women applying for beds during the last ten years, while the same increase has not been observed in calls upon these beds for acute surgical cases.
The Bourne judgment, one might think, would be sufficient to give the medical profession complete trust and faith, but there is always the fear that it might be reversed in the Appeal Court, and it does not satisfy a great many doctors. 1185 The Bill that we are considering now does not seek to limit the number of babies born; it is not in any sense of the word a birth control Bill. It seeks merely to reduce the number of casualties which can occur as a result of a back-street or illegal abortion, call it what you will. Paradoxically, as I shall try to show, it may reduce the number of abortions which are being carried out. One comes across examples which show what an extraordinarily organised racket the abortion system in this country is. I was talking to a young man, who some years ago worked with me, and who is now working as the registrar in the obstetric hospital of one of our big towns in the North, and he told me that about every five or six weeks there is a rush to the obstetric hospital of women with incomplete abortions, septic abortions, bleeding from badly done abortions, which showed that the local abortion man, so far as one could see, had arrived in the town, and it had got around, and he was running his practice, or whatever you call it, for the short time he was there.
Another thing that has not been mentioned this afternoon is that abortion is the second largest cause of maternal deaths, and a substantial portion of the people who die are not young girls, but women between 35 and 40 who have had four or more children. So the bulk of the people seeking abortion at the present time do not always comprise the young teenage girl who has gone wrong, but include, in many cases, the respectable family woman, who seeks it for either economic or emotional reasons: emotional, because she feels she cannot undertake the care of, and cannot begin to understand, one more child when the rest of her family is growing up; and economic, due to the fact that there is not enough money, or the accommodation is too small. I am not making that a defence of these people, but, as has already been said in the debate, one can do much more by rehousing them than by procuring abortion and allowing them to live in the same quarters as they lived in before.
The effect of a back-street abortion, of course, can be terrible. It can lead to chronic ill-health in the mother; and, also—a tragic thing, supposing she should wish to become pregnant subsequently—the chances of her being sterile are enor- 1186 mously increased. The other thing which I think one finds is that if they have been to a back-street abortionist they get a much greater feeling of guilt when the operation has been carried out and they come away, than they do if it is done in a legal manner. This, I think, can have a very bad psychological effect on the mother and upon the family she is bringing up.
A great deal has been said about the clauses of the Bill, and while I do not want to go over them again one by one, I should like to say that on Clause 1(a) I entirely agree with what was said by the noble and learned Viscount, Lord Dilhorne. It seems to me to be badly drawn, and that it would be quite impossible to enforce it in a correct way.
I should like to make one comment on Clause 1(b), dealing with deformed children. Here I think we have to be extremely careful because your Lordships will remember that when the Germans, under the Nazis, began to kill the mentally defective people, some people said: "These people do not live at all; they are complete cabbages, and it is better to put them away." And from that have come all the terrible things we have seen in the last few years. So I think we must be careful not to start on that slope. I agree that it is a terrible thing if children are born blind, or if they are born deformed, in a thalidomide form. But some months ago I went down to Roehampton, where some of these children are, and I saw some of them being fitted with their prostheses. They were born without a leg or arm (these were not the most deformed children), but they were taking to their new prostheses in a way that I should not have believed possible: they were cheerful, bright and intelligent. What their future will be, I do not know. They will no doubt have an extremely difficult time. But I am sure that if your Lordships had seen those children, you would not agree that it would have been a good thing if they had never been allowed to be born.
There is one thing on which I do not agree with the noble and learned Viscount, Lord Dilhorne. He said that the one clause with which he could agree was Clause 5. I would far rather the Bill were called the "Termination of Pregnancy Bill" than the "Abortion Bill". 1187 That being so, I have a profound objection to Clause 5.
Before sitting down, I should like to say one or two things about the question of abortion in general. What is not generally realised is that abortion requires a really skilled surgical hand in order that it should be successful. This is why I am shocked that this Bill should make it possible for every registered medical practitioner to perform an abortion by himself, and with no consultation. I should much prefer that the abortion were to be done by a skilled gynæcologist or a skilled surgeon, because, although it is a comparatively simple operation, it has a mortality, even in the most skilled hands. It seems to me that it would be far more satisfactory, if a Bill like this is to be passed, that the work should be done by someone experienced in the diseases of women. But if this is going a little too far, the gynæcologist should, in my view, be called into consultation with the medical practitioner before the operation is performed. The American Medical Association are thinking along the same lines as we are now, about a Bill of this sort, and I was pleased to see their provision that the patient must be seen by two doctors, in consultation, one of whom must be a gynæcologist.
The other point is that if the woman is going to be seen by a gynæcologist, it will mean a big increase in the medical and social staff of the gynæcological departments, because that is where I think a properly drafted Bill could reduce the number of abortions. Supposing the woman becomes pregnant, she rushes to her neighbours in a frantic kind of way, and they advise her to go and see a backstreet abortionist, when he comes. But if she could talk reasonably and calmly to a doctor, a social worker, or perhaps a health visitor (I am not going to say who she should call in), a great deal of worry could be taken away and things could be made much easier. If that were done, more staff would be needed in these departments, but if the treatment could be canalised to the proper department, we might see a substantial decrease in the number of people seeking these backstreet abortions.
If this Bill, or a Bill like it, does pass, it will put a great responsibility upon the medical profession. I think I am right 1188 in saying that it is part of our training to be prepared to take that responsibility when it is necessary. What we should like to do is to be associated with the clergy and the social workers, because I think that they, with the doctors, are the people who really know what is going on, certainly in the poorer parts of the country. If we can all work together in that way, we can do a great deal to make the lot of these unfortunate women a great deal more satisfactory than it is at the present time. Although I think that this Bill has a great many defects, and that there is not a single clause which does not want tearing to pieces and re-drafting, I hope your Lordships will give the Bill a Second Reading. Because the more this subject can be discussed, the better; and the British Medical Association (I know that there is to be a Committee of that Association) might well learn something from what is said on the Committee stage in your Lordships' House.
§ 5.42 p.m.
§ BARONESS SUMMERSKILL
My Lords, I think I am the only mother speaking in this debate, and consequently my approach to this subject will be more subjective, more forthright, and possibly more emotional, than that of the noble Lords who have already spoken and who, for obvious reasons, on questions like pregnancy, can approach it only in a theoretical manner. I am sure that many of them who have spoken have spoken with deep feeling nevertheless, I have been a little shocked to find how many have tried to run away on legalistic issues and how many have tried to evade the principle by asking for another committee to be set up. My noble friend Lord Brain will recall that three years ago, when I had the Boxing Bill before the House, which I lost by only seven votes, my noble friend asked the House to postpone a decision so that it could go to a committee, and I am still waiting for the final decision of that committee.
§ LORD BRAIN
My Lords, may I remind the noble Baroness that the Interdepartmental Committee on Drug Addiction reported one year after it was appointed?
§ BARONESS SUMMERSKILL
That, I am afraid, is no excuse. This was three years ago. I am raising this point only because I was a little shocked to hear my 1189 noble friend Lord Brain mention a Committee after the noble Earl, Lord Iddesleigh, had warned the House that my noble friend would do so. I had the feeling that this had all been arranged behind the scenes.
§ BARONESS SUMMERSKILL
I feel this should be mentioned, because on the Second Reading of a Bill we are here to discuss a broad principle. Most of the comments made by the right reverend Prelate—who, I was shocked to learn, advised my noble friend to tear up this little Bill—and those of the noble Viscount, are comments which should be made on a Committee stage; and I am quite certain that this Bill of five clauses could be amended in Committee in such a way that it would be acceptable to the House.
The matter with which the Bill is concerned, the practice of abortion, is by no means new—it is as old as pregnancy itself. That is why I ask your Lordships again, here and now, to decide on the principle. Unhappily, as we have already realised, this question arouses tremendous passions, stemming from custom and prejudice which cannot be countered by rational argument. Consequently, since 1803, when the procuring of an abortion became a statutory crime, society, buttressed by convention and prejudice and by theological doctrine, has been obdurate and merciless towards the pregnant woman who seeks relief by abortion. I should say also to the House that, apart altogether from feeling strongly about this as a woman, since I qualified as a doctor in 1924 I have seen hundreds and hundreds of cases similar to those which my noble friend Lord Silkin read out.
Having listened to the noble and learned Lord, Lord Denning, to whom we always listen with great relief on all these subjects, I acknowledge that there have been many men like him on the Judicial Bench who have felt a twinge of conscience which has been reflected in the various sentences passed on abortionists. But this still, small voice has been drowned by the moralising of men who, in the name of Jesus Christ, forgetting the example He gave, have condemned those unfortunate women who have sought relief. I hope that on this 1190 occasion in the mid-twentieth century, when we have abolished hanging for murder, those who have held that it were better for an expectant mother to die rather than be saved by an induced abortion will adopt a more humane attitude.
Throughout the ages, the interests of the mother and her unborn child have been closely associated with the survival of the community. The prohibition of abortion and birth control, like the laws of Moses, which were concerned with elementary hygiene and the safe preparation of food, stemmed from the urgency of the need to increase the population and to decrease the mortality rate. In order to ensure the obedience of primitive people, these instructions had to be invested in some Divine decree. To-day, literate people of the space age, in well-populated countries, are not prepared to accept taboos unquestioning, and in the matter of abortion the human rights of the individual mother—rights that we so often hear about in the United Nations—with her own fully developed personality and her responsibilities to her family, must take precedence over the survival of a few weeks old fœtus without sense or sensibility.
I find it difficult to understand—and I address this to the noble Lord who talked of murder—how the Commandment "Thou shalt not kill" is observed by deliberately sanctioning the death of a mother who would otherwise have survived if her pregnancy had been terminated. To my mind, in those circumstances a mother has been killed with the utmost premeditation. Before a decision is made that she should go to term in her confinement, she has been advised, perhaps by one of the best specialists in the country, that this is injurious to her health and that she will be risking her life. And yet, in the name of religion, she is condemned. I say to those who come to us to-day and suggest that by destroying the fœtus of a few weeks we are thereby committing a crime, it cannot be compared with the condemnation of a fully grown woman, perhaps with a small family.
In 1939 the Inter-departmental Committee Report on Abortion recommended that the 1861 Act should be amended to protect the doctor who procures an abortion in the interests of the mother's health. I was astonished to hear the right 1191 reverend Prelate, the Bishop of Southwark, ask your Lordships not to do anything about this Bill but to set up another Inter-departmental Committee. The Departmental Committee between the Ministry of Health and the Home Office sat for years. Some people are now asking, in order to postpone a decision, that one more Inter-departmental Committee should be set up, and I feel that Mr. Justice Macnaghten's interpretation of the law in the case of Rex v. Bourne—that noble doctor (and let us pay tribute to him) who risked his whole professional career because he believed it was right to abort a little girl who had been raped—and the Infant Life Preservation Act 1929 established that British law was determined to safeguard the interest of the mother.
Therefore I would say to the House that the principle of abortion has thereby been accepted and we are here to-day to discuss whether it is advisable to extend the surgical practice. So I hope that, when it comes to voting, no noble Lords will go into the Division Lobby against this Bill believing that they are voting against the principle of abortion. Abortions are being done in all the hospitals in London, probably to-day, on women who are suffering from serious diseases and who it is believed may lose their lives if they are allowed to go to term.
My Lords, we are being asked to-day to discuss whether this human principle shall be extended to two or three other pathetic categories of women who cannot help themselves but who are dependent upon you. I believe that public opinion is now leading in this matter, and Parliament must not drag its feet by endless moralising. Moralising leads us nowhere. We have heard it for years. It sounds good, but what does it do? Does it at any time help any poor suffering being? These women, my Lords, are asking for you to act to-day, not to listen to moralising.
As has been said, in March a survey was carried out by the National Opinion Polls which showed that 72 per cent. of the people are in favour of some reform of the abortion law, and I want to stress again what the National Council of Women have said, because I feel that this has not been sufficiently stressed. The National Council of Women, a representative organisation of women in this 1192 country, have recommended that the 1861 Act shall be amended in accordance with the Inter-departmental Report, to which I have just referred, and they ask that abortion should be legalised where there is a grave risk of a serious defective child being born and where the pregnancy results from a sexual offence such as rape or incest. With all due respect to the Church, this is a matter in which the voice of women should be the deciding factor, and with all respect to my noble friend Lord Iddesleigh, whom I do respect, surely he must realise that it is not for celibate men to decide the fate of these women. The modern law on the subject in many other countries—and we are dragging behind other countries—aims primarily to protect the mother and to make it clear that her interests are paramount.
I should now like to comment, quite briefly, on the various proposals in the Bill. And here I would say that, while I think the drafting is defective, I have seen in another place Bills drafted as badly as this put right on Committee; and there are only five clauses to put right. It would seem from the practice, as I have already said, in our hospitals to-day that the provision in paragraph (a) of Clause 1 is already observed; that is to say, as I have just described, pregnant women who are suffering from serious diseases can to-day have their pregnancy terminated. But it is right that this should be embodied in an Act of Parliament.
With regard to paragraph (b), we know that, as has already been said, a mother who has contracted German measles early in pregnancy may bear a child defective in the eyes, ears, heart or brain, and that the inadequately tested drugs on the market may well be responsible for further thalidomide tragedies. Do not let us gloss over this situation. All these drug houses are pouring out drugs every day, competing with each other. These drugs are inadequately tested, and the risk of pregnant women getting them is, I think, just as great to-day as it ever was. Are we to ignore this knowledge acquired by the scientists, and deliberately allow a child to be born with shocking deformities, by withholding the skilled hand of science? My Lords, it is a paradoxical state of affairs. On the one hand, we sit back and see these things happening, because science has advanced to such a degree that we give pills and tablets for various ends; 1193 but, on the other, we must not sit back like primitive people and say, having done that, "You must suffer. We are not going to let a skilled surgeon come along and terminate the pregnancy, even if the child may be deformed". And we have heard to-day from the noble Lord, Lord Brain, that the view is that a very large proportion of these children will be deformed.
I suppose the first question that a woman asks after childbirth—I know it was mine—is, "Is the baby all right?" The expectant mother experiences a deep anxiety, stemming from her maternal love, lest a child may have to suffer all its life from some physical imperfection. Having learned, therefore, that there is a chance that her child may come to some harm because she has taken some drug, or because she has had some illness which has accompanied her pregnancy, she must be free to decide. I am quite prepared to agree with the right reverend Prelate that she must discuss it with her husband; but she must also discuss it with many experts in this field, and she must be free to decide whether, in all the circumstances, she wishes to continue her pregnancy. For let us remember it is she who will have to bear the burden of a crippled child throughout its life.
Under Clause 1, paragraph (c) (which again has been very badly drafted), provision is made for a woman to have her pregnancy terminated on social grounds. Here I am unhappy about the social grounds which might be considered legitimate in the circumstances. If the social conditions under which she is living affect her health, and if the situation would be aggravated by a pregnancy, then it is understandable that she should seek relief. But this paragraph requires clarification, because, according to this provision, "social conditions" could well cover living in a one- or two-roomed home, living with a difficult mother-in-law, or the temporary unemployment of her husband. This, of course, would be quite unacceptable to many of those who are otherwise sympathetic to this Bill. If, however, this paragraph refers, as is the practice in Scandinavia, to the mother of a large family who is abandoned by her husband, or a woman with a low I.Q. who already has illegitimate children, then I find it quite acceptable. But I believe that the words "social conditions" must be carefully defined.
1194 Furthermore, I feel very strongly that the provision of facilities to secure an abortion must not be looked upon as a reason for not using some method of birth control. In 1920, abortion clinics where a woman could have her pregnancy terminated on demand were established in the Soviet Union. When I first visited the Soviet Union in 1932, I asked to see one of these abortion clinics in operation. In a large room six operating tables were being used simultaneously and every few minutes a fresh batch of women were wheeled in. The operation itself takes only two or three minutes. I was reminded very disagreeably of an assembly line in action. And I was relieved to find on my last visit that in 1936 the Soviet Union rescinded the liberty of abortion on demand owing to the high morbidity rate among women who had availed themselves repeatedly of this service. I have not to tell this House that I am a champion of my sex; but in seeking to help women we must not establish a service which used indiscriminately might react to their disadvantage. Safeguards are very important; otherwise the floodgates will be opened.
I now come to Clause 1(d). This is concerned with those girls against whom an offence has been committed, under the Sexual Offences Act 1956. A girl who has been the victim of rape cannot be expected to feel anything but loathing for the man who has assaulted her. Her human rights have been totally disregarded, and when pregnancy results it violates her maternal functions. Can it be argued that it is socially desirable and reconcilable with human rights that she should be compelled to bear and rear a child criminally begotten? And the birth of the child does not solve her problem. She will find it difficult to get the child adopted, because a child born as a result of rape is not wanted by anybody.
The noble Earl, Lord Iddesleigh, reminded us of these homes where there are children. Life without love is very sterile, and however devoted these people may be, in these homes the human personality thrives and flourishes only where it can find love. I cannot agree that it is desirable to bring into the world a child who knows he has been hated since his birth.
§ THE EARL OF IDDESLEIGH
My Lords, I really feel that the noble 1195 Baroness may reconsider those words. The tendency to-day in child care is to get rid of the children's homes wherever possible and foster all the children—and it is most of the children who are capable of being fostered—and to look after the more difficult ones who are really seriously troubled in very small homes, where, I do beg the noble Baroness to believe, they do get love.
§ BARONESS SUMMERSKILL
I am very sorry, but I totally disagree. The law punishes rape as a serious crime. Should it not also help to its maximum potential the one who has suffered most from the crime? Have we not already established the principle that the State should recompense the victim who has suffered some injury at the hands of a criminal? While it is impossible to recompense a girl for the violation she has suffered, at least she should have the resulting pregnancy terminated. Can it be argued that it is in the interests of the child—again I ask—that it should survive, when it is known that in addition to being fatherless it was entirely unwanted and hated by its mother since conception?
One function of the law is to uphold the rights of the individual. Roman law gave the husband the power to authorise the abortion of his wife, and a right to damages against a third party who procured her abortion without his consent. That law was designed to safeguard the man's absolute interest in his wife and children as persons subject entirely to his power and control. I am asking this House to recognise that the human rights of a mother must be upheld, and that the law should safeguard her interests above the claims of all others.
§ 6.6 p.m.
THE EARL OF ARRAN
My Lords, I support this Bill, if not in its present form, and may I say straight away I have the deepest sympathy with the noble Lord, Lord Silkin. Your Lordships may recall I had a little Bill before your Lordships last summer and I was told to go away and redraft it, which, with the kindly aid of the Parliamentary draftsmen, was done. I deeply hope the same assistance will be given to the noble Lord.
This is not a subject I know a great deal about, and I am going to talk 1196 about only one aspect of which I have experience. It is seemingly the fact that 80 per cent. of all abortions are carried out on married women. Personally I think this is a comforting statistic; one had imagined it was mostly girls in trouble who had their pregnancy terminated. But your Lordships should not think that, even for a respectably married woman, giving birth is easy. The lady may be physically ill. A lady I know extremely well had two pregnancies in two years. On both occasions she vomited unceasingly; on both occasions her weight went down to below 6 stone. In both cases it was clear, even to a layman, that she was desperately ill. There was no question here of an unwanted child. Both parents deeply wanted it; it was perhaps what they wanted most. But they were faced with the position that if the pregnancy were to continue the mother might conceivably die.
Could they in these circumstances get a certificate from the local general practitioner recommending an abortion? Not on your life. The doctor hung on. "It may be all right", he said. It was not all right. On both occasions the lady was taken to hospital in an ambulance, and on the second occasion the surgeon said to the father, "Lucky she came in; she might have been dead in a week". Why did the G.P. withhold the certificate? I am convinced that it was because he was frightened lest in giving the necessary permission he might be regarded as too easy-going in such matters, or might even find himself on the wrong side of the law. Perhaps he was not a very brave man. At all events, he feared it and did not take the risk, even though in doing so he was taking a much greater risk, that of losing his patient's life. I conceive that one of the purposes of this Bill is to make doctors less fearful of the consequences of agreeing to abort in cases where abortion is clearly a physical necessity. For that reason alone, I will support this Bill, but in addition I welcome a measure which I believe will reduce human suffering.
§ 6.10 p.m.
§ LORD TAYLOR
My Lords, my noble friend Lady Summerskill, in that very spirited speech which she has just given to us—with most of which, almost all of 1197 which, I agree—said that the woman must be free to decide herself in the case of a potential thalidomide baby or other drug-induced deformity of the fœtus. Under this Bill she would not be so free to decide. The decision would be made by a single medical practitioner, as I read it, and I think that this is correct. He would make it in his belief that the pregnancy would involve great risk that the child would be deformed. I should be much more inclined to agree with my noble friend. There is a very strong case for saying that in such a situation the facts should be placed before the mother and she should make a decision. I think this is right, but this is certainly not what the Bill provides.
This afternoon we have had a number of examples of good intent in this Bill, but they did not achieve what one might want them to achieve. I quoted one particular example because my noble friend Lady Summerskill was critical of my noble friend Lord Brain, and by implication of my noble friend Lord Amulree, in suggesting that the problem might be referred to a Select Committee or to some commission of inquiry. I feel with her exactly as she does about the boxing inquiry. It is a tragedy that this wretched committee has not reported. But here we are dealing with problems—and I do not know the answer to it—of which I have just given her one single example.
There is another simple example. I think that abortion should never be done for a fee. It is a monstrous thing that, in a country where we have a National Health Service, an abortion should be performed for a fee. This is a terrible temptation to doctors to behave in an immoral way. I can see no reason whatever for it. I can see every reason why we should have all such abortions as have to be performed, performed in the National Health Service—in ordinary general hospital beds, in obstetric or gynæcological wards, or even in amenity beds—but certainly not in pay beds, in private nursing homes or in private houses. But this Bill will not make any such provision of that sort. In fact, it will make it legal for one registered medical practitioner's opinion to make abortion possible. That is a very bad thing for the woman.
1198 The third situation which is unsatisfactory is where doctors disagree about aborting a woman, or where they refuse to abort a woman on medical grounds. I can think of a lady doctor of my acquaintance who was refused an abortion and who appealed to a very great doctor, and the decision was reversed—quite rightly, in my opinion. I should like to see some provision for an appeal by the woman against the decision of a doctor to refuse to abort her. Nobody likes performing abortions; it is a horrible business. There is a certain disgust about it, because you are destroying an unborn life and because the fœtus is manifestly alive. It is not a nice business at all. Again, I agree with the way in which Lord Brain decides it, but I must say that I should like to see provision for any woman to have the right of appeal if she is refused when she thinks her grounds are good.
Fourthly, I agree with those who have spoken so strongly on the subject on social grounds. If there are to be social grounds for an abortion—and it may be that there should be social grounds for an abortion—it is not for the medical profession alone to decide this; but it is a social decision and society must have a share of the responsibility. I would not mind if a woman justice of the peace or some other responsible citizen—I would prefer that it should be a female citizen—were to join with the doctor and the social worker in inquiring into the case when making such a decision. Once one introduces social conditions, having regard to the provision that social conditions may make a woman unsuitable to assume the legal and moral responsibility for caring for a child, then it is society as a whole making the decision and not just the medical profession.
Finally, I should like to see the veiled sale of abortifacient drugs dealt with, if practicable. I cannot see why this should not be done at the same time. It is a singularly unpleasant trade which is going on. We all know about it and we all know the names under which these drugs appear. Therefore, I personally think—and I should certainly vote for my noble friend's Bill, I am glad that he has introduced it—that there should be a proper Royal Commission. I would prefer a Royal Commission to undertake this task once and for all and to make 1199 a thorough job of it, in the same way as the Wolfenden Committee cleared up a very unpleasant mess. I do not think we shall get what we want by amending this Bill, but I am prepared to try. I am going to vote for the Second Reading, but I would prefer to see a full-scale investigation.
§ 6.15 p.m.
§ VISCOUNT WAVERLEY
My Lords, I have not previously spoken in your Lordships' House on a Second Reading debate, so if I fall into any error I ask your Lordships' indulgence. I venture to address your Lordships to-day because I am one of the relatively small number of Members in this House who have a personal involvement in the often difficult problems which arise from a decision to terminate a pregnancy on medical grounds.
When we are to-day considering alterations in the law relating to termination of pregnancy, it is paradoxical to realise, as is true, that the very uncertainty of the existing law has resulted in considerable safeguards to the mother and to the unborn child. This is undoubtedly so in conventional hospital practice. Because of the uncertainty, at least consultants in appropriate specialties will confer, and in difficult cases there will be more. These cases may indeed pose the most appallingly difficult decisions in the whole realm of medicine. Whatever is in due course found to be the will of Parliament, they will continue to do so.
Let no one underestimate the purely medical difficulties, to say nothing of the moral, the ethical, difficulties. Last year a lady was referred to one of the consultant obstetricians at the Royal Berkshire Hospital, where I have the honour to be one of the consultant physicians. She was eight weeks pregnant; she had rheumatic heart disease—one of the heart valves was seriously obstructed. In consequence, she was in heart failure. She had been referred by her general practitioner for termination, and you may think that this was not only a very reasonable act on his part but, indeed, obligatory. However, in accordance with our invariable practice a joint consultation was held. The obstructing valve was deemed to be amenable to operative repair. This was done: the obstruction 1200 was removed and the heart function recovered. The lady was delivered of a live, healthy baby. She herself is now well and has been advised that, if she so wishes, it will be perfectly safe for her to undertake further pregnancy in eighteen months' or two years' time.
Whatever the grounds of termination, be they medical, moral, ethical, sociological, the responsibility is much too great to be vested in one individual; and also, I suggest, often outside any one person's competence. That it should be lawful for one registered medical practitioner to perform the physical act of termination is, of course, acceptable; and that is really all the Bill says, as I understand it. But it is another matter for that one registered medical practitioner to decide alone that termination should be performed. This is to me, as to so many other noble Lords, unacceptable. Lone judgments on matters of this sort are too susceptible of error.
When left to an individual, causes of wrong decision may range over a wide spectrum, from creditable to discreditable. At one extreme, one may put the medical practitioner who loses objectivity through too deep personal emotional involvement in the distress of his patient; at the other end, there is the practitioner who would terminate for gain. There is, also, as I hope I have made clear, the grave risk of serious academic medical misjudgment. Like other noble Lords, particularly the noble and learned Viscount, Lord Dilhorne, I am convinced that the decision to terminate must not be vested in one individual, no matter how high-minded or professionally skilled.
The prevailing practice within the hospital service, whereby such patients are seen by at least two consultants, works well. I wonder whether an adaptation of this observance could be incorporated in the law. Perhaps, as I believe is the practice in the United States, there should be set up an advisory panel in each large hospital, comprised of consultants in the appropriate medical specialities, and from these a board or tribunal—call it what you will—would be convened to examine each case on merit, thereby relieving any single practioner of the burden of responsibility, and also acting as a powerful safeguard against abuse. In so far as I have had 1201 time to ask, none of my general practitioner friends has been anything but enthusiastic about such a notion. As any legislation will so vitally affect future generations of doctors, I canvassed the views of a number of young men and women at my own hospital. These are young men and women at present in house officer or registrar posts. There was unanimity in the view that to allow one general practitioner alone to decide on termination was most dangerously permissive. My Lords, that generation's views deserve, and should command, respect.
It only remains for me to say that, because the present state of the law is so incoherent, and because, therefore, the very integrity of my profession is so liable to be compromised, I shall support the Second Reading of this Bill. But that is subject to our receiving an assurance from the noble Lord, Lord Silkin, that he will give the most earnest consideration to my deep anxiety, and the anxiety of so many other noble Lords, over the contemplated permission for a single medical practitioner to decide alone about termination on any grounds whatsoever.
§ 6.25 p.m.
§ LORD LLOYD OF HAMPSTEAD
My Lords, there are 26 noble Lords down to speak in this debate and we are only halfway through, so I think all will agree that we should be as brief as possible. I would venture to support the principle of this Bill, though I entirely concede that it is open to some objections of detail, as well as from the point of view of drafting, which my noble friend Lord Silkin has already very candidly conceded. But it is a humane Bill, and it embodies a principle which I venture to think your Lordships ought to support.
There are three basic objections against leaving the present law as it is. In the first instance, the present law is very uncertain, as has been pointed out, and therefore, there is need to have the law properly defined so that doctors know where they stand. But, quite apart from this, it seems reasonably clear that the law does not confer immunity in important cases where it ought to; in particular, 1202 where the pregnancy is due to rape, and equally, in my opinion, where there are eugenic grounds such as a grave risk of congenital defects, as in the case of the thalidomide babies.
I observe that the noble and learned Lord, Lord Denning, has pointed out that there is possibly some basis for saying that even at present our existing law would confer immunity in these cases. Of course, any expression of view on a legal matter coming from such a source will deservedly receive the closest attention of your Lordships' House. At the same time, I venture to think that the noble and learned Lord, Lord Denning, would be the first to concede that some, at any rate, of his opinions have not always commanded the universal consent of his brethren.
I venture to suggest that, so far as these two grounds are concerned, it is extremely difficult to see why a woman should be forced to give birth to a seriously deformed child. In addition, I entirely support the view of the noble Baroness, Lady Summerskill, when she says, in effect, that she can see no reason whatever why a woman should have to nourish within her body the seed placed there by a sex maniac, which is, in effect, what is being asked for when it is said that a woman who has been subjected to rape should be forced to go on and give birth to a child, and then either rear it herself or have it adopted.
I quite see that paragraphs (b) and (d) of Clause 1 of this Bill may be open to some drafting objections, but surely these are matters which can be put right. Indeed, the noble Lord, Lord Brain, made, if I may say so, some valuable suggestions as to the way in which they could be improved. I am bound to say that I feel rather more hesitation about paragraph (c) of Clause 1. I think that the essential question is an extremely difficult one; but, at the same time, with adequate safeguards, particularly if one introduced the idea of a medical board such as applies in Sweden, it may be that a paragraph of this kind, suitably amended, would be of value.
Then, of course, there are the great social evils attendant upon the present state of the law, and I need not dilate on them. We have heard a great deal about them already, and we all know 1203 about the illegal abortionists and all the dangers which threaten to the mother; the fact that the mother may, without any proper advice, apply dangerous drugs to herself with disastrous results. We know, too, that if the law were amended in the terms of this Bill these evils would by no means be eliminated. But, at any rate, I submit that they would be to some extent reduced and therefore, to that extent at any rate, this change in the law will be beneficial.
As to the arguments which are put forward, in perfect sincerity of course, against any extension of the present law, there are of course the religious arguments. However, I think it is fair to say that we have heard comparatively little of these this afternoon, and I do not propose to say anything about them. Of course, these views are held with utter sincerity; but I venture to think that these are matters which concern the criminal law and that we ought not to invoke the criminal law merely on the basis of the religious persuasions of any group of persons, however influential.
Then, my Lords, it has been suggested that care should be taken in amending the law because the operation effecting an abortion, even when carried out by a qualified practitioner, may be harmful. The noble and learned Viscount, Lord Dilhorne, referred to this. But, surely, with great respect, this is rather a strange argument. There are a great many operations in medicine which are dangerous, but we do not, on that account, invoke the criminal law in order to restrain their being carried out. This is a matter for doctors; it is a medical question. I should have thought we would be better advised to leave that question to the doctors, and not to transfer it to the criminal lawyers.
Then, again, it is said—and, I venture to think, with very great force and cogency—that this Bill incorporates insufficient safeguards from the point of view of the doctor, who is apparently given carte blanche to form his own bona fide view when faced with this difficult problem, and from the point of view of the patient and, indeed, that of the community; because, of course, if it is left to one doctor, not only may opinions 1204 differ, but one must recognise that there is the danger of abuse. But surely this is a matter which can be comparatively easily remedied in Committee, because there are a number of ways in which one can build adequate safeguards into this Bill. One of them was suggested by the noble and learned Viscount, Lord Dilhorne, himself when he suggested there should be two doctors, one of whom should be a consultant. An alternative would be to introduce something like the Swedish system of having a medical board which would certify in these cases.
So I venture to submit that those are not really fundamental objections, and that in principle the Bill is deserving of support. The real principle embodied in this Bill, if I may venture to remind your Lordships of it, is that the present law ought to be clarified and, in certain limited cases, extended; and it is that principle which I support. Although there are points of detail and drafting about which I, like so many of your Lordships who have spoken this afternoon, have considerable reservations, I have no hesitation whatsoever in supporting the principle of the Bill and its Second Reading; and, if there is a vote, I, for my part, intend to vote for it.
§ 6.33 p.m.
§ BARONESS AUDLEY
My Lords, may I ask the House for the indulgence which is customarily given to maiden speakers? I have listened intently, and with great respect, to the speeches of noble Lords on this very difficult subject of abortion, giving both legal and medical views, clearly and perhaps forcibly put forward. I am going to speak very shortly, just as a woman, realising, as we all must, the gravity of cutting off, at one act, the potential life and development of a human soul—an aspect mentioned earlier in this debate by the noble and learned Viscount, Lord Dilhorne. The act of abortion, the scope and consequence of legal abortion, and the social impact of allowing abortion, produce in me a sense of fear, tragedy and abhorrence. There are reasons for considering the introduction of legal acts of abortion—for instance, the control and prevention of backstairs and secret abuses which can, and do, amount to destroying life. So I ask your Lordships, humbly, to give the utmost thought and consideration to the full 1205 meaning and implication of this Bill, and its scope.
§ 6.35 p.m.
§ LORD WINTERBOTTOM
My Lords, I know your Lordships' House will join me in congratulating the noble Baroness, Lady Audley, on her maiden speech. As one who has only recently made his own maiden speech I can appreciate her emotions only too clearly. We all respect her for coming here, probably moved by conscience and probably at some inconvenience to herself, to express her views. I am sure we all hope that her conscience will bring her here again, so that she can contribute to our debates in the near future.
The noble Lord, Lord Stonham, speaking neutrally from the Government Front Bench, said there were two starting points for one's consideration of this problem. The one from which I start is the extreme one that every woman should have the right to determine whether or not she should bear the child that she has conceived. This is, I realise, an extreme position; and I recognise that many noble Lords, and many people outside this House, have equally strong conscientious objections to this point of view—and I respect those objections. Indeed, I even considered that I might be mistaken; but it is the view I hold. Starting from that point of view, I feel that there is real unanimity in this House in the view that the law (or lack of law), as it now stands, needs amending, and that speedy action must be taken. I want action now. I know the meaning of the word "compromise", and I will settle for what I can get.
I think, again, that there has been complete unanimity throughout the debate in the view that the Bill as it stands needs amendment, but I am certain that my noble friend Lord Silkin is not surprised at this. In my view, he has performed a major public service in bringing this matter to the Floor of the House and, indeed, to the attention of the country. The mere discussion of the problem, I am certain, will help to clarify the minds of many people, both doctors and individuals in distress.
The question, so far as I am concerned, is simply this: what is the best way of amending this Bill so that we can quickly improve the Statute Law on the subject? Inter-departmental Committees have been 1206 mentioned and a Royal Commission has been mentioned, but I believe that the matter is so urgent, and so comparatively simple, in its basic factors, that further discussion by specially created Committees would cause only delay. After all, we have the 1939 Inter-departmental Committee's Report, on which no action has been taken, and I do not see that another, similar Report would produce any profoundly different changes in the view in your Lordships' House.
Therefore, the only alternatives that remain, to my mind, are the proposals put forward by the noble and learned Viscount, Lord Dilhorne, in which he suggested that my noble friend should withdraw his Bill; that the Parliamentary draftsmen should be put to work on it and that a reformed Bill should he put before your Lordships' House this Session. This strikes me as the height of optimism, because there is no guarantee that the Government will provide the time of Parliamentary draftsmen, and there is no guarantee that your Lordships' House would have time given to the Bill in its revised form. I see my noble friend Lord Stonham looking in my direction. Am I right in thinking that there is no guarantee that the time of Parliamentary draftsmen would be available for this operation?
§ LORD STONHAM
My noble friend is quite right in thinking that I cannot at present give any kind of guarantee of that nature.
§ LORD WINTERBOTTOM
Therefore, it seems to me, my Lords, that this is a job for us; that we must look at the Bill ourselves during the Committee stage and do what we can, in our collective wisdom, to improve it. I believe that we have all the knowledge here in this Chamber to do just that job. I therefore urge my noble friend to persevere in the work that he has started, and to arrange for the Bill to be discussed in Committee. At the end of the day, we may have a smaller Bill, but I am certain that it will be a good one; and, from my point of view, it will be a starting point for a further liberalisation of our attitudes in this most important matter.
§ 6.40 p.m.
LORD VAUX OF HARROWDEN
My Lords, first of all I should like to congratulate the noble Baroness, Lady Audley, on her brave first speech—this 1207 is only my second—and to say how much I agree with what she said and the way in which she said it. I am one of those terrible celibates of whom the noble Baroness, Lady Summerskill, has so low an opinion. I congratulate her on her sincerity. She does not pull her punches in spite of her boxing views. I am also a parish priest in the town which the noble Lady used to represent in another place. I am quite in touch with the inarticulate many on the ground-floor level; and that is why I came down to speak to-day.
It is perfectly true that one has a vast amount of sympathy with this Bill in so far as it makes a tremendous effort to stem back-street abortion and I cannot find words to describe what a frightful thing that is. But, my Lords (I almost said "dear Brethren") surely some other way could be found of stopping this frightful abuse. We must not substitute the scalpel for the knitting needle, and then wave a cheerful blessing over the taking of human life, which is exactly what we are asked to do to-day. It is true that it is very humble human life, very unimportant, very insignificant human life; but, nevertheless, it is human life. And though the process may be cloaked under the more pleasing phrase of "terminating pregnancy", it is, and it remains, the taking of human life which the Almighty gave and which it is the Almighty's duty to take—not ours.
I do not propose to talk on the essential matter of the sanctity of human life, nor to embroil myself in the knotty problem of when the fœtus can first be called human. Not being a lawyer, I do not propose to discuss the problem of Mr. Justice Macnaghten's ruling; but I should like to say a few words from the angle of the ordinary Christian man and woman and their reactions to this Bill. We find that it is proposed that doctors be permitted to take human life, to kill a human being if they hold the belief—I do not like that word—that the mother's health will suffer either by the strain of childbirth or by the consequent strain of bringing up the baby. You will notice that the second clause, the time-limit clause, does not apply here. We are being asked to allow the doctor to kill the child right up to the day before birth would normally take place. There is no 1208 question of Cæsarean section, no question of induced labour, no question of adoption—no mention at all of the wonderful services provided by our Welfare State.
Exactly the same applies when the doctor believes that the child may be abnormal or deformed. One noble Lord who spoke to-day asked the question I pose now: need we do more than to point to those many men and women, whom you know and whom I know, who have learned to live with their pre-natal defects and who are all the better for the process—all the better in character in sympathy and in human understanding? Need one mention also the magnificent qualities brought out in those gallant men and women who choose of their own free will to look after the mentally handicapped?
The third and fourth clauses throw open wide every other door which remains (except one which we are told of) to the unscrupulous practitioner. From my reading of it, practically everything from had housing to poverty, from temperament to tantrums, could be taken as a reason for the doctor to initiate the "belief" process, so long as he does it within the first four months. I must admit that when I first read this Bill I thought it must be a gigantic hoax. Then I decided, by the way it was printed, that it must be official. I then took a walk across my backyard to the parish school where I saw a couple of hundred happy, healthy little kids of up to the age of about 11 in the playground making the sort of noises that happy and healthy little kids make. From my knowledge of those happy and healthy little kids and of their family background, I would say that between a quarter and a half of them would not have seen the light of day under one or other of the provisions of this Bill. Indeed, one could say the same about their parents; or, indeed, my Lords, about some of ourselves. You or I, but for the British legal doctrine of the sanctity of human life, might have flickered into nothingness in the first four months of our existence under the "beliefs" of a scalpel-happy registered medical practitioner.
That such provisions should ever be seriously referred to as likely to reach the Statute Book seems to be bad enough. It opens up vistas of wholesale slaughter of unborn babies—such as has happened 1209 in one country that has introduced such laws. It opens up vistas of campaigns for racial purity, of colour bars, of genocide, such as we all had thought gone with Nazism. But, surely, far worse is that these powers recently removed from the competence of Her Majesty's Judges should be left in the hands of the greenest, most inexperienced, most immature doctor—so long as he can flourish his little bit of paper.
Then I went to a place where doctors gather. I was amazed, I said, at the provisions of this Bill. Even though I have been trying for the last thirty-five years not to get married, I keep abreast of these matters as I am the chairman of a marriage advisory committee; and I understood that therapeutic abortion was on its way out, due to the wonderful progress of medical science both in body and mind in the last few years. What I could not understand was who was promoting the Bill. I asked: Was it the doctors who wanted these powers? Were they demanding the power to take human life in the vague belief that somebody might profit by it? The answer, perhaps in deference to my cloth, was: "Not Pygmalion likely!" One man told me that I was right in my surmise that nowadays responsible medical opinion frowns on therapeutic abortion except in the rarest of circumstances. He admitted that in the far distant past he had had to do one and that the feel of that faint flicker of human life which he was extinguishing was so repugnant to him that he refused to have anything to do with it again.
Another man told me that, if this becomes law, the doctors will be inundated with ladies whose contraceptives have not worked and who threatened to have nervous breakdowns unless doctor terminates the pregnancy. We all know, with excuses to noble Ladies present, how from the very earliest days of human history woman's persistence has been wearing down man's resistance. Another criticised the alarming extent of the powers to be confererd on the doctors. The taking of life, hitherto the perquisite of the Almighty, is to be left to the discretion of a doctor with no question of consultation. Certified examination by two doctors is required for burning a dead body. This is a question of life.
I am not going to prolong my speech beyond telling that a fourth, who was 1210 musically inclined, told me that Beethoven, whose father had a certain unpleasant male disease and whose mother was consumptive, would have been a candidate for the noble Lord's scalpel. Admittedly, he did not get an M.B.E., but I am one of those who think the world would have been poorer without his Symphonies. I will not go on to tell your Lordships what my mothers' confraternity had to say about the matter; but I will end—not as a theologian, not as an official representative of my Church, nor even as a man with an axe to grind, but as representing the decent Christian thought of decent Christian people—by calling on your Lordships not to give this Bill a Second Reading and not to add your voice to the voice of the primeval temptor by saying to the whole medical profession: "Ye shall be as gods".
§ 6.49 p.m.
§ LORD WELLS-PESTELL
My Lords, as an active member of the Anglican Church I can respect sincerely the convictions that have just been voiced by the noble Lord, Lord Vaux of Harrow-den; but I should like to think that I am one of the decent Christians to whom he made reference in his speech. Whether the Bill before your Lordships to-day is good or bad from a drafting point of view, I think we have to keep in the forefront of our minds the fact that we are dealing with real human misery—human problems and human misery which cannot be measured in terms of statistics. It would be correct to say that, for the first time, abortion has become a matter of great public concern and discussion in this country, and we in this House cannot argue that it is a matter which we are discussing in advance of public thinking.
In this year, 1965, almost four million women, members of well-known organisations, have voted quite decidedly and after careful discussion in favour of a change in the abortion law. Several noble Lords have informed your Lordships that in March last the National Opinion Poll showed that nearly three-quarters of the people in this country were in favour of reforms in this sphere. May I remind your Lordships that the desire for reform does not appear to exclude any particular religious denomination? The plain fact is that Britain is about the only non-Roman Catholic country where there are no 1211 clearly defined grounds for legally terminating a pregnancy.
It has been said to your Lordships this afternoon on more than one occasion that the doctors find the present law far from satisfactory, and it would be true to say—I say this with great respect—that most of them are just as ignorant on the subject as the average lay person. Certainly they cannot get much guidance on therapeutic abortion from their textbooks and it is not surprising that, because of the absence of a clear directive, many doctors feel confused. The present law is a bad one, for many reasons. Apart from being perhaps the law that is most broken, it gives, as is so often the case, a clear advantage to the person with money, for she can arrange an abortion under the best conditions, while the ordinary woman has only a back-street abortionist. If I may say so, again with very great respect, the existing law cannot claim much respect, if any at all.
The result of self-induced or back-street abortions can be seen in our hospitals. It may take up to three weeks to get such a patient right, but it takes only two or three days if the operation is done by a skilled medical practitioner. Abortion is now the second most common cause of maternal death in this country. As many of your Lordships will know, there is in existence an Emergency Bed Service which provides doctors in London with hospital beds for acute emergencies. In 1962 the Emergency Bed Service was called upon to find beds for 5,734 abortion cases. This represented an increase of 40 per cent. over the average figures for the previous eight years.
If we may consider for a moment the economics of the situation, we find that the cost is colossal. One consultant has calculated that about £175,000 worth of National Health Service bed space a month—I repeat, a month—is occupied by septic abortion cases. In this connection we have to remember that 90 per cent. of the women are married, the highest incidence being among the 35 to 40 age group. More than half the women who died from abortion in 1962 aborted themselves, and more than a quarter of the mothers who died in this way had four or more children.
Abortion is a growing social problem. It has been said this afternoon (I have no 1212 way of knowing whether it is true) that there are about 100,000 illegal abortions each year. What we do know is that 80 per cent. of the women involved already have two or more children. It is not a case of trying to avoid parenthood or its responsibilities. Another point which we have to bear in mind is that doctors are under heavy pressure from married women patients, and the extent of this pressure is realised by very few of us. Between May, 1955, and April, 1956, under the auspices of the General Register Office the practices of 120 family doctors having between them a total of 383,000 patients, were analysed. I am sorry about these statistics for I know that your Lordships have heard a vast number of statistics to-day. The practices were spread over England and Wales, and I think it may be claimed that they represented the practices in England and Wales as a whole. It was estimated that in England and Wales about 70,000 women consulted their doctors about abortion in the course of a year. I stress that these are the women who consulted their doctors. We have to bear in mind that a vast army of women do not do so; either they abort themselves or they are aborted by another often in a most primitive fashion.
Those of us who have worked for some years in the sphere of marriage breakdowns, know only too well the tremendous strain that an unwanted pregnancy places on many marriages. I have known in such cases wives who have gone to pieces and been unable to cope and whose mental condition deteriorated to the point where they were no longer able to function adequately as a person, a wife, or a mother. I know that this does not apply to all women faced with an unwanted pregnancy, but it happens to far too many in our society to-day. The extent to which some women will go to terminate a pregnancy must speak for itself. Doctors, clergy, marriage counsellors and social workers know from personal experience that many wives are unable to resume a normal relationship with their husbands following an unwanted pregnancy. Often the opening words of many husbands seeking help to save their marriages are, "Since the birth of our last child my wife does not want anything 1213 more to do with me". It is not just the wife who suffers; it is the whole family.
This Bill in its present form may not meet with the approval of your Lordships any more than it meets with my own. It may well be that it would be wise for your Lordships' House to consider imposing some safeguards, particularly in respect of Clause 1(c). That is the paragraph which concerns me more than the other three, and which takes account of the social conditions in which the woman is living. I should like to know who is to assess these social conditions, for I doubt whether the average doctor would have the time to do so. So far as Clause 1(c) is concerned, I hope that this House will be able to say that the skill and experience of the trained social workers, perhaps those from the Children Department, can be brought in. I say this because in Czechoslovakia, where the law allows abortion for social reasons, it has led to its use as a substitute for contraception. I am not opposed to Clause 1(c), but I think that its implications need looking into very carefully. I hope that the noble Lord, Lord Silkin, will decide not to withdraw this Bill. I hope that your Lordships will support it. I believe the matter to be urgent, and I hope that, with the wisdom that prevails in this House, a really effective and useful Bill may emerge following the Committee stage.
§ 7.0 p.m.
My Lords, I welcome this Bill, with definite reservations. In principle it will make clear to all and sundry what the law is, and I trust, in particular, it will make clear to young people that it is possible to have a pregnancy terminated legally, in certain circumstances, and hence avoid the dangerous practices which many resort to in back-street abortions.
I should like to make a few observations on the clauses of the Bill. On the next stage, if your Lordships give the Bill a Second Reading, I suggest that we should consider the opening words of Clause 1, which I believe ought to read:It shall be lawful for a registered practitioner to terminate a pregnancy in good faith with the agreement of a duly qualified colleague who is not a partner or a relation of either the doctor or the patient.This addition, I believe, would greatly strengthen the hand of the registered practitioner, should his action be brought 1214 into question, and would also be of assistance in persuading parents to agree to a termination, should they find it difficult to give their assent. It would also add a degree of caution to the doctor in deciding the action which he should take.
In Clause 1(a), I believe that it would be wise to amend the words "serious injury" to "serious and permanent injury". I am advised that this is the law as it is interpreted by the medical profession to-day. It is my opinion that paragraph (b) is highly desirable and long overdue. On the other hand, paragraph (c) I find far too wide, impossible to amend, and hence should be deleted. In any case, the principle is covered in the last words of Clause 1(a).
On Clause 2, I am told that it would he medically advisable, after the fourteenth week, to terminate the pregnancy by an abdominal operation, entailing a considerably increased risk to the mother. I am not quite clear why this clause is inserted, unless it is for the very good reason of religious considerations. I approve of Clause 3, if my first Amendment to Clause 1 be adopted, thus providing for a second opinion. Clause 4 brings in the need to have the parents' permission for any operation in the case of minors, but here again I believe that my amendment to Clause 1 would at least be helpful. I think we shall have a very difficult next stage of this Bill, but I hope that your Lordships will give the Bill a Second Reading, so that there is no more delay in doing what we all wish to do—to put this Bill on the Statute Book.
§ 7.5 p.m.
§ LORD CLIFFORD OF CHUDLEIGH
My Lords, I am going to be very brief, as all the things that have been said by previous speakers have covered most of the points that I can think of, but I should like, if I may, to go from the particular to the general. What worries me about this Bill is its implications in the wider sense. Here we are having legalised abortion. What will it be next?—euthanasia, then sterilisation will be added en passant, and man, in all his arrogance, will have allotted to himself that function which those of simpler beliefs have considered to be until now the prerogative of the Almighty. Surely it can never be anything but morally 1215 wrong, and therefore, one hopes, legally wrong, for man to solve his problems by death, whether it is death at the beginning, in the middle or at the termination of his life span. It seems to me that Hitler tried to solve some of his problems that way. That is the reason why I object to the Second Reading of this Bill.
§ 7.6 p.m.
§ LORD SEGAL
My Lords, I think that noble Lords who listened with interest to the last speaker and to the speech of the noble Lord, Lord Vaux of Harrowden, would do well to cast their minds back to the speech of the noble and learned Lord, Lord Denning, with its deep humanity, in which he recited the individual cases that have come before his own judgment as one of the most distinguished Judges in the land. I could not do better than recommend to them to read in to-morrow's Hansard the remarks of the noble and learned Lord.
Whatever our approach may be towards this Bill, whether theological or legal or social, it must be agreed that the one active involvement in every case must be the medical, and it is from the medical angle that I want to approach this Bill—in other words, from the receiving end. I remember vividly from early days as a newly qualified doctor, doing my first resident post as house surgeon at Westminster Hospital, in the old days when it stood in Broad Sanctuary, just opposite the Abbey. Late one night a single girl of nineteen was admitted as a gynæcological emergency case, with a fulminating septic peritonitis and a very high temperature. The peritonitis followed a clumsy perforation of the uterus by an instrument used by a criminal abortionist. For most of the time she lay almost moribund, but in her conscious moments she was fighting desperately for life. A colleague and I, who were looking after her case together, were able to get very few details of her history, but neither legal nor theological considerations could enter our minds. All we could do was help her in her fight for life. A police constable called at the hospital every day, but had to be kept away from the bedside, as she was far to ill to give evidence.
1216 After seven days, she died, and I recall vividly how both of us, having to face our first inquest, went over the treatment of her case and wondered what else we could have done to save her life. That was 38 years ago, long before the advent of antibiotics. Since then my colleague, who was a devout Catholic, went out to the Far East and served for twenty years as a medical missionary.
All I am able to do now is to give my support to the Second Reading of this Bill. Just over a week ago, in discussing this Bill with a medical friend, who is the senior gynæcologist of a large London hospital, I was startled to hear her say that for every one patient admitted to her hospital for a legal abortion, no fewer than fifty cases were admitted for operation for the results of a criminal abortion. It is just because I want to see these figures completely reversed—that for every 50 cases where a lawful medical operation is performed, under proper aseptic conditions, where the mother can stand a good chance of full recovery and will be enabled to have healthy children in the future, only one case has to be admitted for the effects of an illegal abortion, with the risk of the mother being left maimed and mutilated, often unable ever again to have a child, however much she may yearn for it—that I hope to see this Bill given a Second Reading.
In many ways, as we are most of us agreed, this is a bad Bill, and I hope to see it reshaped in Committee and improved beyond all recognition. I hope that this House, with all its weight of legal wisdom and theological guidance, will allow this Bill to go forward to its Committee stage, and bring all its collective influence to bear on the subsequent discussions.
There are many provisions in the Bill, as it now stands, which I feel bound to query. First, the legalising of abortion on social grounds without specifying what those social grounds are may be all very well in countries behind the Iron Curtain, but to us this provision constitutes almost a reflection on our Welfare State. Secondly, the Bill permits the carrying out of an abortion by a qualified doctor in his private surgery. I feel that these abortion operations should be carried out only in a recognised hospital, with proper aseptic precautions and with the approval of at least two, or even three, hospital 1217 consultants. This is now done in many other countries and would contribute more than anything else towards stamping out the criminal trade of the back-street abortionist, as well as removing all suspicion of having a doctor perform the operation for financial gain. Thirdly, I feel that much more ought to be done in this Bill to clarify the medical indications permitting a legal abortion to be carried out.
What then should be done in the vast majority of cases where the pregnant unmarried girl or the elderly mother says: "I must get an abortion done, because I do not want to have the baby"? Here I feel there may be many cases where that abortion could be rightly refused. No doctor, if this Bill is passed, should ever be under compulsion to carry out an abortion. This Bill is only permissive. We in this country are not living to-day in a Communist State. Any doctor is fully entitled to adhere to his own religious or doctrinal beliefs and to refuse to carry out this operation. Many an unmarried mother who has had her request for an abortion refused has later felt profoundly thankful for the gift of her child. Often, where the child has not been adopted, it has proved not only a source of comfort and happiness to her, but has given her a new sense of purpose in life, and proved an enormous help to her in her own social fulfilment.
As Chairman of the National Society for Mentally Handicapped Children, I am able to speak on behalf of many of our members who are the parents of a mentally handicapped child. Members of our Society are to be found in both Houses of Parliament. The Society comprises over 350 branches all over the country, and has a membership of nearly 40,000, still rapidly growing. Many of these parents, whom I am privileged to know, are the salt of the earth. It is quite impossible to express in words one's admiration of the courage and fortitude with which they face their problems. Over and over again a mother has spoken to me in terms such as these: "I have five normal healthy children and one mentally handicapped child. That one child means more to me than all my five other children put together. I feel that this child was entrusted to me by God to be specially loved and protected from the cruel world outside."
1218 But not once have I ever heard a mother wish to have a second mentally handicapped child of her own. On the contrary, they always pray for another child to be normal. They sacrifice to urge on the work of research into the causation of mental deficiency and its prevention, so that other mothers may be saved from the ordeal that they have had to endure. And it is just because I believe that this Bill can prevent many a mother from giving birth to a mentally or physically handicapped child that I hope it will be given a Second Reading. We need only recall the thalidomide babies, or the blind, deaf and mentally handicapped children, born to mothers who have had German measles, to realise how much is at stake.
Indeed, I can hardly conceive of any justifiable grounds for rejecting the Second Reading of this Bill. The noble and learned Viscount, Lord Dilhorne, said that it would be wasting the time of this House to occupy itself with a Committee stage of a Bill framed on these lines. I cannot conceive of the time of this House being more usefully occupied than in dealing with this subject at the Committee stage of this Bill. The more the subject is discussed, the more it is freely brought into the open, the more usefully, I think, will this House be able to feel that it has devoted its time.
Of those legal authorities who contend that the law is satisfactory as it stands to-day I would only ask; since when has it been considered good law to sweep a problem away under the carpet; to turn away from the difficulties of interpreting the Common Law; to leave it to the particular background and religious outlook of the presiding judge, who has to pronounce on matters where he knows the Stature Law to be at fault? Is that really considered to be good law?
Those who oppose this Bill on religious grounds, and whose opinions I deeply respect (I have my own religious reservations on abortion, perhaps as strong as those of some other Members of your Lordships' House); I would ask: is it really the essence of true religion to pass by on the other side; to cast not only the first stone, but to continue to cast stones upon those who stand desperately in need of our compassion and medical aid? Is it not rather the duty of all the 1219 Members of this House to join together in trying to stamp out of our midst the cruel trade of the criminal abortionist?
The tragedy of our present law, as it stands to-day, is that barely one-tenth of the abortion iceberg is seen above the surface: at least nine-tenths of this trade is allowed to flourish in secret and succeeds in escaping the law. This abominable traffic is now alarmingly on the increase, as reliable sources testify. Those of us who reject the Second Reading of this Bill, whether on legal or religious grounds, are merely giving the green light to the criminal abortionists to continue to conduct their trade underground, as they are able to do at present.
One of the great virtues of your Lordships' House is that it stands immune from electoral blasts and the clamour of the hustings. It can, and does, express its own mind on social reform, freely and fearlessly. It can give a lead to public opinion as, to its everlasting credit, it has already done on more than one occasion in the recent past. I hope that this House to-day will set its seal on so much good work already accomplished, and will bring a new ray of hope to many of our fellow citizens who are in dire mental and moral distress, by according to this Bill a Second Reading.
§ LORD RAGLAN
My Lords, everything I was going to say has already been said, but I should just like to say that I am very much in favour of the Second Reading, and hope that the noble Lord, Lord Silkin, will yield nothing of his principles in Committee. I am very much against the provisions in this Bill being discussed by any other Committee than one of your Lordships' House, because this is the only place where any question can be put to the vote, and the only place where anything can and will be done about this very urgent and most important matter.
§ 7.22 p.m.
§ THE EARL OF HUNTINGDON
My Lords, at this late hour, I shall be brief. This is a most distressing subject, and obviously there are many causes for the desire to have an abortion, as we have heard this afternoon. But there is one thing which is always a common factor with any woman wishing to have an abor- 1220 tion or to terminate a pregnancy, and that is that the woman is desperately wishing for it and in need of having it done. An abortion or a termination of pregnancy is usually difficult to arrange; it is unpleasant and expensive, and there must be very strong and urgent motives which will drive a woman to wish to have it carried out.
Therefore, I think the first object of this Bill, as has been so well said before, is to relieve the distress of thousands of women who, for one reason or another—whether they cannot cope with more children; whether it is the young girl who has a job which she could not keep if she had an unwanted child, or whether it is someone frightened of bearing a deformed, mad or abnormal child—cannot face having this child. Certainly this Bill will help to relieve this distress. But what is, I think, far more important is the question of the unwanted child. The unwanted child is in a most difficult and unpleasant position, pyschologically and in every way; and although it is perfectly true that in some cases adoption works very well, in other cases it does not. There is always a psychological difficulty for the child who will eventually find out that those whom he regarded as his parents are not the real parents, and that the home he thinks is his home is not. I do not think that adoption is an answer. In any case, we certainly do not need an increase in population.
There are two valid arguments against abortion, the first being the religious. I would ask those who sincerely believe, from a religious point of view, that it is wrong to terminate a pregnancy to show a certain amount of tolerance. After all, there is nothing in this Bill, which is purely permissive, to force, or even encourage, anyone to have an abortion. It merely allows. Just as, for instance, the Mohammedan believes sincerely that to drink wine or spirits is an evil and a sin, so that it would be wrong to try to encourage him to do so, we should surely consider it very ungracious behaviour if the Mohammedan minority in this country tried to induce this whole nation to refrain from drink. I think that it is the same position, though it is rather a trivial example, perhaps. But I ask people who have sincere religious beliefs on this subject to remember that this Bill is not going to interfere with 1221 those beliefs or their habits at all: it is merely extending a right to other people who think differently.
It has been suggested that terminating a pregnancy is psychologically upsetting to a woman, but I would suggest to your Lordships that it is even more upsetting to have to cope with children who are unwanted. A great amount of delinquency comes from broken and unsatisfactory homes. This is, I think, an important argument on the other side.
I do not want to keep your Lordships longer, but I want to say one final thing which I am sure we all ought to be agreed on, and that is that we should like to take this operation of terminating of pregnancy out of the back street, out of the hands of the semi-qualified practitioner, from the midwife who has learnt a little, and to bring it into the hospital, where people can be decently and properly cared for and looked after. This would eliminate risk, eliminate expense and largely eliminate the distress of the woman. I hope that your Lordships will face these facts, and will give a Second Reading to this extremely promising Bill.
§ 7.27 p.m.
§ LORD CRAIGMYLE
My Lords, I rise rather late at night to make but three points to your Lordships. Before I start, perhaps I may answer one point which has been made by the noble Earl, Lord Huntingdon, opposite. It really is rather understating the case to assume that the objections which have been expressed this afternoon, very largely by members of the Roman Catholic Church, to which I myself adhere, are only religious objections. There are objections based on the natural order. The sanctity of human life is there, whether you happen to be a Mohammedan or a Roman Catholic or a member of the Church of England.
I was walking down Knightsbridge the other day when I saw a crane at work, with a great weight at the end of it, bashing down the old Knightsbridge Barracks. I thought, "Here indeed is an anology". It is so easy with a few aimed blows to destroy an edifice, which has taken years of painstaking labour to erect. The delicate and intricate connection between the moral law and the law of the land is just such an edifice. 1222 I am afraid that this Bill is just one such well-aimed blow.
The first point I wish to make to your Lordships concerns the present state of the law. As we have had a certain amount of repetitive argument in the course of the evening, let me say quite boldly that this is one of the most reactionary suggestions which has been put before your Lordships for a long time. I put it before your Lordships, not because I think you will approve of it as a reactionary suggestion, but because I think it may free us from what the Socialist apologists in the old days used to call the tyranny of customed thought. My suggestion is that the Statutes, as interpreted in the cases to which allusion has been made this afternoon, have gone slightly awry.
The law at present is not what Parliament meant when Parliament framed the Statutes. Mr. Justice Macnaghten found what he deemed to be a loophole in the law. He widened it to a breach, and subsequent cases have widened the breach still further, so that any of your Lordships could drive through it a horse and cart or an abortionist his limousine. The error, to my mind, which Mr. Justice Macnaghten fell into—and I am treading on dangerous ground, because your Lordships are fully aware that I am not learned in the law—is that he failed to realise the importance to the case he was hearing (or he failed to instruct his jury in the importance of it) of the ethical principle of double effect. That principle is a principle whereby we can ascertain the moral propriety of an act from which there are going to flow several consequences, some good and some ill.
The act must be submitted to four tests, and can be held to be morally sound only if it passes all four of these tests. The four tests are pretty obvious, but I am afraid it will take a number of words to explain them. First, the action itself must be morally neutral. Second, the evil results must flow from the good results; in other words, the end must not be held to justify the means. Third, the intention of the person doing the act must be to secure good results and not to secure indirectly the ill results; and, fourth, the ill results that occur must not be so grave as to outweigh the benefits of the good results. This principle is not just something culled from the moral theologians. 1223 It is enshrined, if I am not mistaken, in the English law. I do not know whether it is enshrined in Scottish law, but I suspect that it is.
Perhaps I may refer for a moment to an example to justify that remark. I would refer to the example, in 1957, of Rex v. Adams, which was tried before Mr. Justice Devlin, under the veil of which old-fashioned terminology your Lordships will recognise the identity of the noble and learned Lord, Lord Devlin. He carefully instructed his jury in the principle of double effect, and I think that instruction must have made much easier for them what otherwise would have been a difficult decision. Your Lordships will remember the principal matters of the case.
A certain doctor was facing grievous charges that he had administered such drugs and in such quantities as to secure the early demise of certain of his patients. Clearly that as an action satisfied three of the four conditions which I have just mentioned. The action itself, the prescribing of the drugs, was morally neutral; the early death of the patients seemed to have been agreed between the two sides in the case to have flowed as a consequence from the relief of pain—if it had been the other way around, it would have been euthanasia; and the fourth condition was fulfilled as the cutting short by a few weeks, or even months, of the life of an incurable, elderly patient could not be weighed in the balance against the relief of suffering for the time that remained to him.
§ VISCOUNT DILHORNE
My Lords, if the noble Lord will allow me, I should like to tell him that I was engaged in that case, and I really cannot recognise it from that description.
§ LORD CRAIGMYLE
My Lords, I am not for a moment attempting to quote the words of the learned Judge. I am merely explaining, in my own words, if I may, the principle of double effect as it seems to me to have influenced the Judge in his direction of the jury; and the jury had to decide upon the third point, namely the motive of Dr. Adams. I am not trying to summarise the learned Judge's summing-up, but am merely showing the application of this one principle to that case. However, the jury of course returned a verdict of not guilty. 1224 and Dr. Adams was acquitted. I may not have satisfied the noble and learned Viscount on the Front Bench that the principle of double effect was so very prominent in that case, but I do not think he will disagree with me when I say that the principle does have a bearing upon English law and certainly upon medical ethics.
Take a case in the immediate sphere which we are discussing this evening. A pregnant woman is found to have an advanced cancer of the womb. The surgeon recommends, and performs, a hysterectomy. How does this fit in with the four conditions which I have just mentioned? Clearly, it passes all four with flying colours. The action itself, the removal of a diseased organ, is morally acceptable. The ill-result, the death of the fœtus, follows consequently from the good result of the removal of the cancer. The surgeon's motive, clearly, is above suspicion and the death of the fœtus weighs only equally in the balance against the life of the patient. It would be very much otherwise in the case of an ordinary abortion where, although the motive of the surgeon may be above suspicion, none of the other three conditions is fulfilled.
If Mr. Justice Macnaghten had had that principle in mind, I venture to suggest to your Lordships that he would have put a slightly different interpretation on the repeated use of the word "unlawfully" in the 1861 Act. He merely said, and unexceptionably, that as the Act used that word "unlawfully" Parliament must have visualised circumstances in which abortion could be lawful. It is my submission to your Lordships that Parliament in 1861 visualised nothing obviously so complicated as a hysterectomy but operations in which an abortion occurred indirectly, though that operation was not itself an operation for abortion. The same would be equally true of the 1929 Act, Section 1 of which simply says, "thou shalt not abort a viable fœtus", and the proviso says "unless you have to do it for the purpose only of preserving the life of the mother". That seems to me to indicate that Parliament had in mind the principle of double effect, so that no one would be subjected to prosecution if he had, in fact, performed an operation which resulted in the death of a fœtus, solely and in good faith to preserve the life of the mother.
1225 Mr. Justice Macnaghten treated the proviso as a mere exception. That was the loophole he found in the law, and from thence he extended preservation of life to mean longevity, and your Lordships know how it has been widened from that. But in my view the intention of Parliament, when it passed those Acts, has been given a twist in an unfortunate direction by the legal decisions. And, of course, it is a quirk of our legal procedure that when a judge puts too rigorous an interpretation upon an Act in a criminal matter, so that the man tried before him is found guilty, the man may appeal; but if the judge puts too lenient an interpretation on the Act, and the man is found not guilty, the Crown cannot appeal. Therefore, a succession of cases can only, and must always, have the effect of watering down a strict principle which Parliament then put into an Act.
My Lords, it seems to me—and this is my first submission to the House—that it is not absolutely essential that we start to reform the law concerning abortion on the basis of codifying the present Case Law or giving statutory effect to the decisions which we have been discussing. However, I have trodden on grounds of the moral theologians, and I am no theologian: indeed, I am not particularly moral (mea culpa!). I have also trodden on the grounds—with only one slight objection from the noble Viscount on the Front Bench—of the English lawyers, although I am no lawyer—or indeed English (Deo gratias!).
In my second submission I have to tread even more warily, because I am proposing to touch on one or two medical aspects of this matter. I have been surprised at the amount of medical discussion which has dropped from the lips of noble Lords, none of which coincides with the information which I have got from men of medicine whom I have consulted. The general impression I have is that, whereas thirty years ago, or even rather less, there were many conditions which were recognised as indications for therapeutic abortion, there are now very few, if indeed there are any. Thirty years ago there were, for example, many cases of tuberculosis. In those days tuberculosis was a much greater scourge than it is now, and from the point of view of pregnancy it was considered a terror; the 1226 slightest sign of pulmonary tuberculosis in a pregnant woman was considered an indication for abortion. But this is no longer so. The tuberculosis is treated, the pregnancy goes to term and a healthy baby is probably delivered. Cardiovascular conditions have been mentioned, and the noble Viscount on the Cross-Benches has made it quite unnecessary for me to go into the difficulties that arise in those conditions, for he gave us an excellent example where abortion would plainly have been indicated to less learned men than those with whom he is privileged to work, but in fact the correct treatment for the case was to treat the condition and allow the pregnancy to go to term.
No one has mentioned so far rhesus factor incompatibility. This, until very recently, was considered, and may well still be considered by some doctors, to be an indication' for abortion. But the increasing knowledge of all these complicated, highly intricate matters concerning the composition of the blood is rapidly making even that out of date. I venture to hope that in a few years' time, not only from the advance of science but from the advance in the arrangements available for coping with difficult cases, rhesus factor incompatibility will no longer be considered by anyone an indication for abortion. Lastly, one noble Lord mentioned the case of extreme forms of morning sickness. This, I understand, is now considered to be largely a psychiatric disorder rather than a pathological one and if taken in the early stages will respond to psychiatric treatment. Here, again, if it is properly treated—and it should be properly treated; we are not talking about countries far overseas; we are talking only about this country, where proper treatment is available—there is no therapeutic reason for abortion.
In certain cases which are purely psychiatric there may well be many doctors and psychiatrists who would advocate abortion. But it appears from all I have been told by doctors that the psychiatrists are beginning to catch up with the gynæcologists and in a few years' time most of these conditions will be susceptible to treatment without termination of pregnancy. That being so one would think that any new Bill to amend the law concerning abortion would seek 1227 rather to restrict, according to the new knowledge of the medical profession, the grounds upon which abortion can be performed. But what do we see in fact? Here is the noble Lord, Lord Silkin, with this Bill, seeking widely new grounds. So the third point I would submit to your Lordships is that these new grounds are not justified.
First of all, if the medical and psychiatric indications have fallen or are falling quickly out of vogue, surely the new grounds which we are now being asked to consider, the socio-economic grounds, will yield to treatment in the same sort of way, and in a few years' time it will be recognised, I hope, that it is for the housing officer or the welfare officer or some such official to treat a case where in the present day and age abortion might by some doctors be recommended. The improvement, in fact, in the social and economic conditions of our people will parallel the improvement in the art and skill of the medical profession, in ruling out social and economic indications for abortion.
Secondly, as has been stressed my many noble Lords, doctors are not sociologists. However skilful they may be in their own profession, they do not have the necessary knowledge—of course in practice they see a lot of social conditions, but they do not have the necessary knowledge—and specialists may not have the experience of social conditions, to make a sound opinion. Yet every one of the paragraphs in Clause 1 opens with the words "in his opinion". There is another side to that particular coin; namely, that it is very unfair to the doctors to put them in the position of having to make such decisions.
Thirdly, one overseas example has been quoted—there has been more than one, but the one I have in mind is the example quoted to us by the noble Baroness opposite, the example of Russia. She reminded us that in 1920 the laws concerning abortion in Russia were liberalised very widely, far more widely than this Bill seeks to do. The results were so horrifying—she described them, and she is a supporter of the Bill—that within a comparatively few years the legislators started producing a series of amendments which went on and on over the years, until now the laws concerning abortion in 1228 Soviet Russia are roughly speaking as strict as they are over here.
Then in Scandinavian countries the same sort of liberalisation (that is the nice word to use) of the abortion laws has had the same effect of increasing the number of abortions performed to a degree that has horrified the Government and the medical profession. In Sweden, I think I am right in saying, the law itself has not been changed but in recent years the officials charged with executing the law have tightened up their regulations and succeeded in reducing the number of abortions performed. In Hungary (I think Czechoslovakia was mentioned) we have had the same sort of story. Since the war, and under the Communist régime, the abortion law has been liberalised, and the result again has been precisely the same: an enormous increase in the number of abortions, and the population of Hungary, I am told, has stood still since the end of the war.
Lastly, of course, there is the in some ways rather exceptional example of Japan, where in the year 1948 contraception, abortion and sterilisation were all legalised by the same law. At first abortions had to be approved by a sort of panel, I think it was, of doctors, but within four years these panels were so overwhelmed with applications that the Diet passed a special law allowing what is now proposed in this Bill, abortion to be done on the "say-so" of one doctor. In each of those four countries the same terrifying statistic has turned up after only a few years—the number of abortions was actually running ahead of the number of live births. That means—and I see not the slightest reason to suppose that this country will be any different from any other country—that we can look forward to something like a ten-fold increase in the numbers of abortions being performed every year in this country.
Fourthly I seem to read something vaguely familiar in these grounds which are now proposed as grounds for abortion—we have seen them before somewhere. I suspect we have seen them—and this ties up with what a number of other noble Lords have said—in the propaganda of the Family Planning Association. These are the same arguments one after the other: "The young girl must have contraceptive instruction because 1229 you know what boys are like nowadays!"; "Married women have so many children that they must use contraception because it will prevent them from having any more." The Family Planning Association have always argued that the use of contraceptives will reduce the number of abortions, but in fact a very considerable proportion of applications for abortions comes from girls who have been using contraceptive techniques and have been too inefficient in their use, or perhaps there is something wrong with the technique itself; or, particularly in the case of the young unmarried, they have been too tipsy to use the thing properly. So, far from decreasing the number of abortions, the use of contraceptives may well increase it. From such statistics as are available, namely, those in the United States and Sweden, it may be seen that resort to abortion has gone up measure for measure with the practice of contraception. Therefore, it is my submission to the House that this Bill would lead to a very great increase in the number of abortions, far more than its promoters can possibly realise.
My Lords, the time is now very late. I must draw quickly to a close; I have already spoken for longer than I intended. The Abortion Law Reform Association is avowedly humanist and non-Christian. Those of us who are Christian may think they are in fact anti-Christian, although they would not say that themselves. This Bill is a humanist Bill. It springs from the line of thinking which supposes for some reason or other that a woman has the power of life and death over her own offspring. The same line of thought in ancient times led Greek mothers to expose their unwanted babies on the cold hillside, or the Canaanite mothers to offer their babies in fire to the idol Moloch. But there are those of your Lordships who would not be prepared to see the matter in such harsh terms of black and white; who would not think in terms of the sun of Christian ethic which has illuminated the law of the land for a thousand years, as against the humanist night we are now being invited to approve; who might not think in terms of human life sanctified by God as opposed to legalised infanticide. To those of your Lordships who do not see the matter in such hard terms, but look at it in a more 1230 phlegmatic way, may I suggest that the prudent question to ask yourselves is whether we shall wait for the thoughtful and careful examination of this problem by the British Medical Association, or whether we shall yield to-night to the propaganda of a pressure group.
§ 7.55 p.m.
THE LORD BISHOP OF EXETER
My Lords, I hope I shall not make a major speech at this hour of the night. I wish to try to make as crystal clear as I can what is the attitude of these Benches both to abortion in general and to this Bill in particular. We are here, as I see it, confronted with a choice between, on the one hand, the obvious humanity which inspires this Bill, the desire to reduce the sum of human misery by relieving a certain class of individuals of a heavy and great load of unhappiness which they carry by reason of fear or anxiety occasioned by their pregnancy. But, on the other hand, we know that it is our duty as legislators to do nothing which would have the effect, or be likely to have the effect, of cheapening the value set in our society upon human life.
What we have really been discussing the whole of this afternoon and evening is the value which we are to place upon human life, because whatever an unborn baby is or is not, at least it is certain that it is not a mere inconvenience to its mother. It is not to be considered on the same level as a grumbling appendix or a wart upon the nose. It has some connection with membership of the human race and the question is: What relationship has it? Is it a member of the human race, the proper possessor of all the rights which are inherent in humanity—and particularly that basic right, the right to live? If it is a member of the human race with a right to live, at what stage did it become so? There is a continuous, unbroken development of the fœtus from its conception to its birth in the gradual formation and separation of its limbs and organs, so that it makes it impossible for us to fix a point at which the unborn baby becomes a member of the human race. Therefore, it seems to me that it is entirely rational to say that the fœtus becomes a member of the human race at the moment of its conception when this continuous process first begins. There is a continuity 1231 between the unborn fœtus and the born baby. This, as I understand it, is the doctrine of the Roman Catholic Church and is not at all irrational. At one time, when I was younger, I held it myself, and if one holds it it follows, an an unavoidable conclusion, that all abortion must be treated as a form of murder or homicide.
However, there is another way of approaching this problem. It is possible to say that the fœtus, the unborn baby, is not a member of the human race in the ordinary sense of those words, but that it has a potentiality of so becoming; and it is because of this potentiality which conveys to the unborn baby a right to its own fulfilment that we have no grounds for frustrating the right of the potential to actualise itself. But since the fœtus has only this potentiality of humanity which is not yet fully real, because it is in the process of turning that which is potential into that which is real, the rights of the mother who has already passed from the potential to the real, and who is on any showing a full member of the human race, take precedence over those of her unborn baby. So where there is a direct and unavoidable clash between the interests of the mother and of her unborn baby, the mother takes precedence over the baby.
From this it will be clear to your Lordships that our attitude is that we support the principle which underlies the first clause in this Bill, which would legitimatise abortion where the interests of the mother vitally require it. Where there is a grave threat to her life, to her physical health or to her mental health, we maintain that abortion may be legitimate.
For my own part, I would go even further. The phrase in the clause about the strain of their upbringing is certainly obscure, but I take that to mean that in considering the vital interests of the mother one should not exclude either the duties of the mother towards the living members of her family. I understand that what lies behind that phrase is that the total environment of the mother, including the rights of the already born children to the care and protection of the mother, should be taken into account as one factor in reaching a decision as to whether the threat to the mother and her environment is so severe as to override the rights of the 1232 potential human being present in the baby.
From this I think it will be clear that we do not approve of the grounds listed in the other paragraphs, but we do think that most of the very distressing cases which have been mentioned in this House in the course of this debate would in fact be covered and could be brought under paragraph (a), and I think that the noble and learned Viscount, Lord Dilhorne, made the same point.
So we consider that this is a Bill which in principle we support, because we think that the law of abortion does need clarification, and indeed in some directions actual extension. We believe that if this were done it would have an effect upon the number of illegal abortions, primarily because if the law were thus clarified and extended, any woman fearful and anxious about her pregnancy would be able to go and talk to her doctor about it without any shame and without any fear. The doctor would also be able to discuss the problem with her without a shut-in mind, because however clear the present law may be to gynæcological expert consultants, I am convinced that it is by no means clear to the ordinary general practitioner with whom the ordinary woman comes into contact.
I think it would be a great advantage if a woman could go and talk to her doctor about her problem. If that were done, I suspect that in nine cases out of ten the doctor would be able to explain to the woman that there were other solutions to her problem than abortion, and much better solutions to her problem than abortion. We envisage some provision whereby permission for an abortion would be referred to a sort of consultative body attached to each hospital, to which a woman would go and meet with a gynæcologist, a psychologist, a sociologist, a social welfare worker. Her problem could be thoroughly discussed and all the alternatives put before her, and if then it were finally decided that nothing but an abortion could preserve her life, her physical or mental health or her family, then so be it. So I shall vote against the Amendment, precisely because I think the law needs clarifying and extending.
What to do about the Second Reading of this Bill, I am not quite so sure. It 1233 seems to me that it would be almost impossible, and incredibly tedious, to get this Bill into an acceptable shape in the Committee stage on the Floor of this House. I should much prefer, if it were possible, that it were referred to some body which could consult with doctors, with lawyers, and with social workers, as well as, perhaps, with the clergy. That body could then produce a new Bill, so drafted as to be acceptable to the majority opinion in this country; a Bill which would be proof against any abuse in the direction of making an abortion available on demand.
I do not know whether the noble Lord, Lord Silkin, would even consider asking some of us, perhaps, to help him to draft another Bill. The Committee of the Church of England for Social Responsibility has already one draft in print. It is not for me to say whether or not it is a good or satisfactory draft, but it is there and it could serve as a base for work. Anyway, I am prepared, I think, to vote for the Second Reading of this Bill, but I very much hope that, when I have done that, I shall never see the Bill again.
§ 8.8 p.m.
§ LORD CHORLEY
My Lords, I should not like this debate to go past without adding my support to this Bill, and expressing the hope that my noble friend Lord Silkin will get his Second Reading. It seems to me that, although there are no doubt many flaws in the Bill as it stands, the principle is clear enough and, on the whole, it has received the support which it deserves from the great mass of the speakers who have taken part in this very interesting debate this afternoon.
I was much impressed by the speech of the right reverend Prelate who has just resumed his seat, putting a balanced view in that one must take into consideration the interests of the family as a whole—the health of the mother, the upbringing of the other children, as well as the possibility of the fœtus not having a real human existence when brought into this world—when coming to a decision. Obviously, these are all matters of substantial importance. I was reminded very much of a most impressive speech which I once heard the very reverend Dean of St. Paul's make, when he said that really it is not life which is 1234 sacred; it is the personality of the human being which should count.
Obviously, in many of these cases for which my noble friend Lord Silkin is trying to provide, you are going to wear down the personality of the mother until she becomes just a drudge. You are often going to produce a malformed or mentally defective child who has no real prospect of ever becoming a real human personality. You are going to interfere with the upbringing of the other children. It seemed to me that all this was implicit in the most interesting speech which the right reverend Prelate addressed to us.
I think that we ought to give this Bill a Second Reading, despite its defects, if only for the purpose of establishing the principle and showing that your Lordships' House, like the majority of our fellow citizens in this country, as is shown by the polls that have been taken, are behind this movement. This is a Bill which is drafted in such a way that a great deal of it can, if necessary, be removed in Committee. I am not suggesting that we should be too extreme in that respect; but, to my view, even if we got only the first clause the Bill would be of the greatest value.
Cases of this nature which have been before the courts in which learned judges have summed up to juries are very few in number. The summing-up in the Bourne case is different in important respects from the summing-up in the Newton and Stungo case, and those are the only two cases which lawyers have on which to base their advice to clients, and with which the medical profession has to do its best. It was quite clear from the speech of the noble Lord, Lord Brain, that even the people in Harley Street are far from clear as to the law; and it seems to me highly important that both lawyers and doctors should be clear beyond a peradvanture in regard to these very important matters. This crime, after all, is a very serious crime, and can bring discredit and ill-fame on many people. So, as I say, even if we got only the first clause of this Bill, it would be a great move forward.
The noble Lord, Lord Silkin, will be able to consider all the suggestions that have been made. I was very much Impressed with the proposal that there should be at least two doctors brought in on this sort of occasion. I agree with 1235 the view that to rely on one doctor, often possibly not a man of the highest practical experience in his profession in this type of case, is not altogether right. This Bill could obviously be improved a great deal. It could no doubt to a considerable extent be cut down in Committee in such a way as to make it generally acceptable to the great majority of your Lordships. I think the great thing that we should do this evening is to give it a Second Reading, in order that its principle may be established.
§ 8.13 p.m.
§ LORD SILKIN
My Lords, we are about to vote on the Amendment, subject to the final speech by the noble Earl, Lord Iddesleigh. All I want to say on the Amendment, having listened to the speeches in support of it, is that the views of those who support the Amendment are quite irreconcilable with the views of those who support the Bill. There is a very deep difference in respect of religious conviction and many other factors. I do not think that the noble Earl would claim to speak with any particular authority on the specific provisions of the Bill itself: that is a matter upon which we can all judge. But on this one question as to whether the views of the supporters of the Amendment can in any way be reconciled with those in support of the Bill there is no doubt at all, and the real issue in front of your Lordships is just this. If this Amendment were carried, then we should carry on as we are to-day, with the present unsatisfactory position of the law, with these enormous numbers of illegal abortions taking place and everything that flows from it. I do not want to pursue this point because I dealt with it in my opening speech, but the real issue is: are we to go on as we are—which practically every speaker has admitted is an unsatisfactory situation—or are we to amend the law in some form? I shall say a few words on that in my concluding remarks.
That is all I want to say. The issue before us so far as the Amendment is concerned is very simple. It is whether we go on as we are, without altering the law, or whether we approve the Second Reading and amend the law in the manner laid down by the Bill subject to any Amendments that may be decided by the House in Committee.
§ VISCOUNT DILHORNE
My Lords, may I just say this? I shall vote against the Amendment if it is put to the Division, not because I am in favour of the contents of the Bill but because a vote for the Amendment can only be understood as meaning that one is not in favour of any change in the law in the present situation.
§ 8.17 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, there are a certain number of pregnant women who will be reading this debate. For their sake, I want to say something on a medical question. I assure your Lordships that I have very good authority for what I am about to say, and I should be exceedingly grateful if this part of my speech, if nothing else, were reported, since it may serve to help pregnant women. There has been invented, and there is in common use, a substance called gamma globulin, and it is available for the prevention of rubella in exposed pregnant women. On the basis of 14,054 returns from general practitioners in the years 1954 to 1961, the incidence of rubella after home exposure to the virus was only 1.27 per cent. in women so protected. And I want to stress that it is exceedingly important that any woman in pregnancy who is exposed to rubella should immediately go to her family doctor and ask for this chemical. That statement, at any rate is non-controversial, and I hope that it will be useful.
Now for the debate. I will not attempt to sum up at any great length. The noble Earl, Lord Huntingdon, held out this invitation to Roman Catholics. He, in effect, advised them to retire to a Red Indian reservation where their sensitive consciences and peculiar beliefs will be respected, but to leave alone the sense of what the country should do in matters of right and wrong. I am sorry that we cannot adopt that position. We cannot say, "Am I my brother's keeper?" We have our duties to the State, and on this occasion our duty will almost certainly be to go down to defeat, although we shall have with us a few persons who think well of our arguments. I beg that our case may be judged on the arguments that have been presented, rather than on our particular religious convictions. My Lords, it is rather difficult for us, because when we express views which we and 1237 other people think are quite logical and sensible, those views are often discounted in advance, and men say, "Oh!, he has got to say that". That was what Newman called, "poisoning the wells of truth".
I beg your Lordships to tell me, if you must, that my arguments make nonsense, but give me judgment. Do not give me prejudgment. I will not repeat those arguments. It is very largely a matter of what you mean by voting for a Bill. If by voting for a Bill you mean no more than voting for a Resolution, that is one thing. But to-night we are, in fact, voting on a Bill which has been almost entirely condemned by almost every speaker. We can, of course, follow the advice that has been given to us to vote for an enormously long and complicated Committee stage to get this Bill right—or as right as possible. But I suggest that it would have been kinder to this House if an originally respectable Bill had been presented to it.
It will be said that the authors of this Bill did not have the advantage of Parliamentary draftsmen to help them. But what is a Parliamentary draftsman for? In my understanding, you go to a Parliamentary draftsman and you say: "This is what I want to do. Will you please supply the right language in which to put it?" I do not think that the noble Lord, Lord Silkin—and I hope that he will take no offence—quite knows what he does want to do, especially in the "social conditions" paragraph.
§ LORD SILKIN
My Lords, I want to assure the noble Earl that I do know what I want to do; and if I am at fault it is in not being able to express it in the best possible language.
§ THE EARL OF IDDESLEIGH
Very well. But if the noble Lord had been able to express his meaning a little more
§ clearly, there would have been much less to criticise in the clause.
§ I must not keep your Lordships for very much longer. I cannot withdraw my Amendment. I do not suppose that I should be allowed to do so; but I will not withdraw it in any case. We may as well divide. But I am dividing the House because I consider that this is a bad Bill and one which I hope the noble Lord, Lord Silkin, will still withdraw. I am doing this out of respect to your Lordships; but I am also dividing the House because I am convinced in my views by what my theologians tell me about the life that is in the womb, be it quickened or be it only fœtal. There I may he differing from the right reverend Prelate the Bishop of Exeter. I am aware that in that we represent different theological traditions, although there is some support also for his tradition from antiquity.
§ For my part, I think it would be interesting to ask, not a philosopher or a theologian to answer this question, but a biologist. I wonder what a biologist would say. I think he would say this: "Our science advances by categorisation. We divide living things into genera and species, and then into subspecies. That is how we get on. That is our scientific principle." I think that if I were to ask him whether the fœtus is human, the biologist would reply: "What species does it belong to if it is not human?" However, my Lords, I merely suggest that that question may possibly be explored. I do not want to make a point of it, because under two clauses of this Bill the quickened fœtus and even the viable fœtus, may be destroyed. That seems to me to be a very terrible thing.
§ 8.30 p.m.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 8; Not Contents, 70.1239
|Audley, Bs.||Haddington, E.||Longford, E. (L. Privy Seal.)|
|Clifford of Chudleigh, L.||Howard of Glossop, L.||Vaux of Harrowden, L. [Teller.]|
|Craigmyle, L.||Iddesleigh, E. [Teller.]|
|Addison, V.||Balerno, L.||Byers, L.|
|Ailwyn, L.||Blyton, L.||Canterbury, L. Abp.|
|Airedale, L.||Brain, L.||Champion, L.|
|Archibald, L.||Brooke of Ystradfellte, Bs.||Chorley, L.|
|Arwyn, L.||Burden, L.||Cohen of Birkenhead, L.|
|Cranbrook, E.||Kirkwood, L.||Segal, L.|
|Denham, L.||Lindgren, L.||Shackleton, L.|
|Dilhorne, V.||Listowel, E.||Shepherd, L.|
|Elliot of Harwood, Bs.||Lloyd of Hampstead, L.||Sherfield, L.|
|Exeter, L. Bp.||McCorquodale of Newton, L.||Silkin, L.|
|Ferrier, L.||Merthyr, L.||Sorensen, L.|
|Gardiner, L. (L. Chancellor.)||Mitchison, L.||Southwark, L. Bp.|
|Gifford, L.||Monson, L.||Stonham, L.|
|Gladwyn, L.||Morris of Borth-y-Gest, L.||Strabolgi, L.|
|Grantchester, L.||Morrison, L.||Taylor, L. [Teller.]|
|Grenfell, L.||Newall, L.||Terrington, L.|
|Haire of Whiteabbey, L.||Norwich, V.||Vernon, L.|
|Henderson, L.||Raglan, L.||Wade, L.|
|Henley, L.||Rhodes, L.||Waverley, V.|
|Hobson, L.||Rosslyn, E.||Wellington, D.|
|Horsbrugh, Bs.||Royle, L.||Wells-Pestell, L. [Teller.]|
|Hughes, L.||St. Just, L.||Winterbottom, L.|
|Huntingdon, E.||Sandford, L.||Worcester, L. Bp.|
§ Resolved in the negative, and the Amendment disagreed to accordingly.
§ 8.35 p.m.
§ LORD SILKIN
My Lords, the House is now ready to decide whether it will give this Bill a Second Reading. I think the Bill has been accepted in principle by everybody who has spoken, except those who have definitely come out as opponents. Everyone has recognised that there is a need for an amendment of the present law, and most speakers that there is a need for some extension of the present law, even as it is understood by the lawyers.
There has been a certain amount of criticism of the terms of the Bill, and I accept that they could be very much improved. Much of the criticism is, I think, perfectly justifiable. I believe that none of it is criticism which could not be met by amendment in Committee, although I admit that it might be somewhat cumbersome to go through the Committee stage with a considerable number of Amendments, whether or not they were eventually accepted. However, I believe that at the end of the day, although the Bill would be improved in its language and many things made clear which are not clear at the moment, basically, the Bill would remain very much as it is.
Nevertheless, I am impressed by the suggestion that we might try to get a Bill approved by general agreement, and I wish to make this suggestion to the House. If your Lordships will give this Bill a Second Reading to-day, I am willing to discuss with the noble and learned Viscount, Lord Dilhorne, the noble Lord, Lord Brain, and anybody else who would look at the thing seriously, even the right reverend Prelate the Bishop 1240 of Exeter (the right reverend Prelate the Bishop of Southwark was much too critical) and see whether we could, very quickly, approve a fresh Bill. If we could agree upon a fresh draft, it would very much ease the procedure of this Bill through your Lordships' House, and if we could achieve that, it would be much easier when it gets to another place.
Therefore, I am prepared, if the House will give this Bill a Second Reading—I hope an unopposed one—not to press for the Committee stage until after the Recess. By that time one would hope that an agreed Bill might be prepared and, if it were, and if it were acceptable to all concerned, I should be very willing to withdraw the existing Bill in favour of that new Bill, and rely on my noble friend Lord Shepherd to give me the assistance which such a Bill would deserve when it is sponsored by such responsible persons as the noble and learned Viscount, Lord Dilhorne, the noble Lord, Lord Brain—to say nothing of myself.
There are four points on which I recognise that there is room for amendment or clarification. The first is the question of getting a second opinion in some form or another. We need not discuss now what kind of second opinion it shall be, but I think it is the general opinion that a second opinion would be very desirable. Secondly, there is a need to clarify what is meant by the expression "social conditions" in the Bill. I know what I meant, but apparently nobody else does, and it is therefore desirable that we should incorporate in the Bill something that everyone can understand.
Then there is the clause which limits the time in which an abortion can take 1241 place, under two of the classifications, to 16 weeks. To my surprise, that seems to be unacceptable. I thought I had conciliated those doubtful about it by putting in a period, but I am gladly prepared to leave it out. The last point is the question of rape and sexual offences and how they should be dealt with by the medical profession or whether they should be dealt with at all by them. Certainly there are many cases in which an abortion ought to be permitted in connection with sexual offences, but I recognise the force of what has been said, that it would be wrong to ask the doctor to constitute himself a judge in these cases.
§ Resolved in the affirmative. Bill read 2a accordingly, and committed to a Committee of the Whole House.