§ 3.45 p.m.
§ Order of the Day for the House to be put into Committee read.
§ LORD SILKIN
My Lords, I beg to move that this House do now resolve itself into Committee on the said Bill. It is, perhaps, unusual for anything to be said on a Motion of this kind, but the circumstances are somewhat exceptional and I hope the House will forgive me if I just say a few words by way of introduction.
The House will remember that on November 30, when we had the Second Reading, this Bill was discussed at considerable length and met with a good 285 deal of criticism in detail. There was a certain amount of opposition to the Bill, but I think that the House was prepared to accept it, although a number of matters did not commend themselves to the House at that time. I promised the House that, if it gave the Bill a Second Reading, I would endeavour to seek agreement with the principal critics, and if possible to introduce a new Bill as an agreed Bill. I have met the chief critics: the noble and learned Viscount, Lord Dilhorne, on several occasions; the right reverend Prelate the Bishop of Exeter; I have had correspondence with the noble Lord, Lord Brain I have had the advantage of meeting representatives of the Churches, and of reading their Report; I have seen the British Medical Association and have had a good deal of correspondence with them, in addition; and I have met a great number of other people. As a result of all this, I decided, after consultation with the noble and learned Viscount and others, that the best course was not to try to inroduce a new Bill, which would not be an agreed Bill in any case, but to try to amend the existing Bill by way of Amendments.
I realise that the Amendments are pretty drastic. I realise, also, that on a previous occasion some years ago, when this fate befell somebody else who had introduced a Private Member's Bill, I myself was very critical of the moving of a large number of Amendments to a Bill in such a way as virtually to make it a new Bill. I do not think this is a new Bill. I think its basis stands. In one or two respects I have altered the Bill, but fundamentally the principles of the Bill as originally introduced are retained in the Amendments. I will say this in extenuation. While the question of abortion is a vital subject and, to my astonishment, has aroused tremendous interest throughout the country, nevertheless, to my knowledge, it has never been discussed in this House before and very little in another place. Therefore, the reaction of noble Lords to a Bill of this kind was quite uncertain.
I decided that I would introduce the Bill in virtually the form in which it was introduced and, I think, rejected some years ago in another place. I thought that was the best course, so that I might discover what was the reaction of noble Lords to various points in the Bill. I had that advantage. Noble Lords were 286 very frank and critical, and I have tried to meet by way of amendment such criticisms as I agree to, and in the language in certain respects of some of my critics. For instance, a number of provisions in my Amendments are exactly in the form of the Report of the Churches' Commission, and I hope that they will be prepared to accept them. There are others which are in the form which the noble and learned Viscount drafted, and I am sure he will accept those for which he is partly responsible. There are others for which I myself have to take full responsibility. Finally, I say, quite frankly, that I am not satisfied even not with the drafting of the Bill. I am not a Parliamentary draftsman, and the more I look at the Bill the more I realise that there are drafting defects. I am hoping that, once we have got the Committee stage through, I may have some help from experienced Parliamentary draftsmen to enable me to put up a better show before the Report stage. I hope the Committee will be prepared to give the principles of my Amendments full support.
Now I think it may be for the convenience of the House if I state what I have in mind so far as the timetable is concerned. I hope we may succeed in getting Clause 1 of the Bill through this evening, but the last thing I want to do is to curtail discussion; and, whether we do or not, I would propose to ask the Committee to postpone discussion at 7.30, or as near to that time as possible—that is, if I can bear up until then. If I find I am thoroughly exhausted as a result of the discussion, I hope the Committee will not mind my asking for a postponement before that time; but I will do my best. However, your Lordships may take it that it will not be later than 7.30. My Lords, I beg to move.
§ Moved, That the House do now resolve itself into Committee.—(Lord Silkin.)
§ 3.52 p.m.
§ VISCOUNT DILHORNE
My Lords, it is unusual to have anything in the form of a debate on this particular Motion, but I am sure the House is grateful to the noble Lord for the explanation he has given. He started, I thought, by trying to erect a shield in case he was attacked, or in case observations which he had made on a previous Bill were thrown 287 at him. I, for one, would be the last to complain that he had taken steps to improve a measure which was justly criticised to a very great degree—and not only on matters of detail—in the course of the Second Reading. The Amendments are, as the noble Lord has said, pretty drastic. I do not think there is any clause in this Bill which, if the Amendments are carried, will not be changed; but I for one do not regret that, and I shall not myself criticise the noble Lord for seeking your Lordships' agreement to the making of drastic changes in this particular measure.
I do not agree with him when he says that what we shall see if these Amendments are carried will not be a new Bill. It will be a very different Bill from the Bill he introduced, but it will at least be somewhat better—and I hope that in the course of the Committee stage, when we shall have some interesting questions to debate, we shall succeed in making it better still. I am one of those who want to see a Bill on this subject, a proper Bill, on the Statute Book, and I therefore do not propose to take up any more time by saying anything further upon this Motion.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 [Termination of pregnancy by registered medical practitioner]:
§ 3.54 p.m.
§ LORD SILKTN moved to leave out Clause 1 and insert the following new clause:
§ Medical termination of pregnancy
§ "Subject to the Provisions of this Act it shall be lawful for a registered medical practitioner, after obtaining a concurring opinion from a second registered medical practitioner, to terminate a pregnancy:
§ Provided that such two registered medical practitioners certify in writing that in their opinion the termination of the pregnancy is necessary on the ground that—
- (a) the continuance of the pregnancy would involve serious risk to the life or grave injury to the health whether physical or mental of the pregnant woman whether before at or after the birth of the child; or
- (b) the child if born would be likely to suffer from such physical or mental abnormalities as to deprive it of any prospect of reasonable enjoyment of life; or
- (c) the pregnant woman is or will be physically or mentally inadequate to be the mother of a child or of another child as the case may be; or
- (d) the pregnant woman is a defective or became pregnant when under the age of sixteen or as the result of rape or of intercourse which was an offence under section 128 of the Mental Health Act 1959 or section 97 of the Mental Health (Scotland) Act 1960 (relating to sexual intercourse with patients)."
§ The noble Lord said: I beg to move the first Amendment standing in my name on the Order Paper, which is to leave out Clause 1 and insert an entirely new clause. There are a number of Amendments to this which we shall be dealing with in due course, and I therefore do not think that the Committee will expect me to go into this new clause in great detail. I would just summarise what I think we are doing and what are the changes that have been made here as compared with the provisions of the previous Bill.
§ The Bill, as it was introduced, provided that an abortion could take place after certification by one registered medical practitioner. The new clause provides that there must be two registered medical practitioners who should certify that, in their opinion, the termination of the pregnancy is necessary. There will be some criticism, I think, of the fact that there is no description of the kind of medical practitioner who should be able to certify for this purpose. I know there is the idea that there would be a possibility of abuse if the two medical practitioners happened to be partners, or people who rather specialised in this kind of work and were seeking to become known as practitioners who would be fairly easy in giving certificates, carrying out abortions, and so on. It has been suggested that there should be some limitation or restriction on the kind of medical practitioner who should carry out the abortion; and the noble and learned Viscount has an Amendment on that point which will be considered in due course. While I would agree with him that some amendment is necessary, I am not very happy about the language of his Amendment, even; but we shall come to that.
The grounds upon which an abortion can take place are set out in the remainder of the clause under paragraphs (a), (b), (c) and (d). Paragraph (a) is
generally accepted, I think. That is where the life or health, mental or physical, of the expectant mother is endangered. There is certainly no Amendment to paragraph (a), and I think we might generally accept that—subject, of course, to the possibility that, even there, the language migh conceivably be improved. Paragraph (b) is, I admit, controversial. It is on the ground that
the child if born would be likely to suffer from such physical or mental abnormalities as to deprive it of any prospect of reasonable enjoyment of life;…
There is an Amendment by the right reverend Prelate to delete that paragraph, and we shall have a discussion on it. At this stage I do not think I need say more about it—the provision speaks for itself—except that the language is by agreement with the noble and learned Viscount, for I think that, in paragraph (b), I have adopted the language which he himself used.
The ground set out in paragraph (c) is:
the pregnant woman is or will be physically or mentally inadequate to be the mother of a child or of another child as the case may be;…
That, I know, will be criticised, partly because of the language, partly because it will be alleged to be vague and covered by other provisions and partly by the fact that it is an unreasonable extension of the justification for an abortion. There again, at this stage I think I had better leave it at that, and we shall have a discussion on whether a provision of this kind is justifiable or not. I will say at once that I myself am not happy about the actual wording—as to the pregnant woman being
inadequate to be the mother of a child.
and I am hoping very much that if this clause is acceptable to the Committee in principle, I may get some help in drafting something that will be more satisfactory.
The last of the four justifications for abortion is:
the pregnant woman is a defective or became pregnant when under the age of six-teen…"—
that, I recognise, is highly controversial—
or as the result of rape,"—
that is also controversial—
or of intercourse which was an offence under…the Mental Health Act…",
and so on. There are Amendments on that. Again, I look forward to a very interesting discussion in which I recognise that I shall have fully to justify abortions on the various grounds which are being criticised. I do not think I need say much more in support of the clause at this stage. I look forward to a helpful discussion in due course. I beg to move.
Leave out Clause 1 and insert the said new clause.—(Lord Silkin.)
§ THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL)
I should point out to the Committee that Amendments to proposed Amendments are taken after the original Amendment has been moved and the Question put for the first time. After such Amendments to an Amendment have been disposed of, the debate on the original Amendment is resumed.
§ 4.2 p.m.
§ VISCOUNT DILHORNE moved, as an Amendment to the Amendment, to leave out "after obtaining a concurring opinion from a second registered medical practitioner". The noble and learned Viscount said: I think it would be to the convenience of the Committee to consider Amendments Nos. 2, 3 and 4 together because Amendments 2 and 3 are paving Amendments to No. 4. The noble Lord, Lord Silkin, has made some observations about the content of his new Clause 1. I agree with him in thinking that that clause is a very considerable improvement in more than one respect upon the clause in his Bill, but it still has blemishes and defects which we shall do our best to correct.
§ Under the original Bill it was left to one doctor to decide whether or not the operation should be performed if he decided that the grounds existed that would make the performance of the operation lawful. On the Amendments that I am about to move we are not considering what are the grounds for termination; we are concerned with the system, the procedure, that should be followed. And if we want to prevent abuse, whatever ground we may decide upon, this procedure is in my view of paramount importance. I think it was going too far to suggest that this operation, which may be fraught with serious consequences for the pregnant woman, should take place on the opinion of one doctor only. This 291 was going too far. It is an improvement, under the new clause moved by the noble Lord, that the operation will be lawful only if performed on the certificate of two doctors.
§ However, I do not think that that improvement goes far enough. I think that one of the two doctors whose opinion should normally be required—I I say "normally" because there may be reasons why he is not prepared to give the certificate which the woman requires—should be the woman's regular doctor; for he is very much more likely to know about her health, her home life and the conditions in which she is living than is any other doctor whom she may go to see, perhaps for the first time, when pregnant. Her regular doctor will be in a good position to judge of the effect on her health during pregnancy and after pregnancy taking into account all the relevant circumstances.
Here I would, if I might, correct something that the noble Lord said just now in relation to paragraph (a). If one compares the wording of paragraph (a) of the original Bill with the paragraph of this new clause, one sees that it has been changed in material respects. The new clause makes it clear that regard must be had to the health of the pregnant woman
before at or after the birth of the child ".
I do not think there was any reference in the original paragraph (a) to "after the birth of the child". I mention that in passing. The point I want to make is that normally one would have thought the woman's regular doctor would be in the best position to express an opinion on these matters and to give a certificate. Therefore, I think it is important to stipulate that one of the two doctors whose certificate is required to make the operation lawful must be the woman's regular doctor; and, if the woman's regular doctor is not prepared to certify, that. I should have thought, should be regarded as a fact of some significance by any other doctors who are asked by her to give a certificate—unless it was apparent that the refusal of the certificate was simply made because her regular doctor had a rooted objection, on principle, to any form of termination.
§ So, because there may be cases where the woman's regular doctor is not pre 292 pared to certify—not because he is of the opinion that one of the grounds laid down in the Bill does not exist; but because he has a rooted objection to abortion in any circumstances—it would he wrong to prescribe that in every case there must be the certificate of the woman's regular doctor and a certificate of another doctor employed in a National Health Service hospital. Therefore, in the Amendments I have tabled I have provided that the certificates required must either be the certificate of the woman's regular doctor and of a doctor employed in a National Health Service hospital, or certificates of two doctors employed in a National Health Service hospital. If these Amendments are accepted, as I hope they will be, the operation will he lawful on the production of certificates from such doctors.
§ It has been suggested to me that it would be preferable to say "on the staff of the hospital" rather than "employed in" the hospital under the National Health Service. Well, I have no strong views upon that. By the words I used I certainly meant on the staff of the hospital. But I would not wish to limit it to those employed whole-time on the staff. I hope I have said enough to make it clear what I am seeking to achieve by these Amendments. If after careful consideration by both Houses of Parliament this Bill, in one form or another, reaches the Statute Book—and, if my Amendments are accepted, I hope it will—it would be unfortunate if there were a door left open to abuses.
§ There was an interesting article in last week's Observer telling of what happened in an Aberdeen hospital under the law of Scotland. It said that, in consequence of the abortions performed in the hospital, the back-street and highly dangerous operations which we all deplore had substantially diminished. I am sure that we all hope that that will be the result of this Bill; but, just to leave it to any two doctors to certify, as does the noble Lord's new clause, seems to me to leave open an undesirable possibility of abuse. There are black sheep in every profession—the legal profession, the medical profession, and in other professions. I should not like to see two doctors setting up in practice together just to perform abortions; and that is what could happen under the 293 new clause moved by the noble Lord, Lord Silkin, if these Amendments were not accepted. It could not happen, or at least it would be most unlikely to happen, if the certificates had to be given by the regular doctor and a hospital doctor, or by two hospital doctors.
§ There is also this to be borne in mind; and I suggest that it is a matter of some importance. If the procedure envisaged under this new clause is followed, there will be no chance of a prosecution for the performance of an illegal operation. If two doctors certified that one of the grounds specified existed, and that the operation was necessary, there could be no prosecution unless the prosecution could establish that the certificates were false; that, for instance, they did not express the opinion of the doctors. I find it almost impossible to envisage a case in which the prosecution would be in a position to prove that the doctors in question had falsely stated their opinions. It seems to me to follow that at least one of the two certificates must be signed by someone holding a responsible position in the National Health Service. And in some cases the two certificates would he so signed. I hope that I have made the object of these Amendments clear. I beg to move.
Amendment to Amendment moved—
Line 2, leave out from ("practitioner") to ("to") in line 3.—(Viscount Dilhorne.)
§ 4.12 p.m.
§ BARONESS SUMMERSKILL
I feel it only right and proper that I should tell the Committee that I have already warned my noble friend that I proposed to follow the noble and learned Viscount, Lord Dilhorne, and in substance support what he has said, although I hope that he will also he guided by me on some of the detail. My noble friend's new clause provides that certificates should be given by two registered medical practitioners. In my opinion, this is a great improvement on the original provision, which gave the right to one medical practitioner to terminate a pregnancy without further consultation. I ask my noble friend to strengthen his provision, because I believe that the service given to these women at such a time is of such vital importance that the whole future of the Bill may hinge upon it.
294 I wish my noble friend would consider making it compulsory that at least one doctor should be a surgeon with gynecological experience who is in contract with a hospital. At the same time, I would ask the noble and learned Viscount to reconsider the wording of his Amendment, which simply specifiesa registered medical practitioner employed in a hospital.This could mean a clinical assistant who also could be a general practitioner who had been invited from outside the hospital to come and help a hospital staff subject to great pressure. Therefore, if the noble and learned Viscount simply asks for a doctor who is employed in a hospital, I think that he may be defeating the object he has in mind.
Furthermore, I believe that the doctor who supports the general practitioner should have specialised knowledge of surgery, preferably gynæcological surgery. May I briefly describe the procedure in order to emphasise my case? Let us assume that this Bill reaches the Statute Rook. A woman may then ask her National Health Service doctor for an abortion under the new Act. For conscientious reasons, the doctor may refuse; indeed, it seems that if he is a Catholic, he will certainly refuse, and has every right to do so. But the expectant mother has every right to ask for consideration of her case under the Act, and as a patient of the National Health Service. If the doctor feels that he cannot reconcile his conscience with his Hippocratic Oath, he can send the woman to another doctor.
Let us be realistic. Being paid on a capitation basis in a small town, a doctor may be reluctant to send a patient to another doctor, and he may delay doing so. I need not remind those of your Lordships who have followed the progress of the Bill throughout that a delay of a week or two in taking a decision may result in a woman being denied the chance of an abortion. Furthermore, if the doctor says that he will send the woman to a neighbouring practitioner, and asks her to remain on his list (which would be quite understandable) the woman will have to be treated as a private patient and pay a fee. Let us remember that throughout this debate we are talking not about wealthy women, but about poor women who generally live in rather distressing circumstances.
295 In a town with a large Catholic population, the doctor to whom a woman goes as a private patient will, in his turn, have to seek a second doctor, which may prove difficult. All these difficulties could be resolved, and the woman's doctor would be able to reconcile his religious scruples with his professional principles, if the woman were sent to a surgeon with gynecological experience at her local hospital. The surgeon could obtain a second opinion from a colleague, and the woman could be admitted to undergo an operation in the best possible circumstances.
I come now to the case where the woman's general practitioner has no conscientious scruples, where he agrees that an operation is necessary, and finds a neighbouring practitioner who concurs. I will not emphasise the important point about collusion made by my noble friend, which was also made by the noble and learned Viscount. Two general practitioners having agreed, where is the operation to be performed? Only last week the Minister of Health said that because surgeries like slum properties existed he was prepared to finance new buildings. Is the operation to be performed in a place where there are no facilities? The average general practitioner is not an expert. He will not have procured an abortion before. In his professional life he may have been asked a thousand times to procure an abortion, but he would know that if he did so, although he may think it just, he would run the risk of being struck off the Register. Therefore, the general practitioners we are talking about will have had no experience, and will procure abortions in their surgeries only when this Bill is on the Statute Book and becomes law.
Where else can this be done? In the woman's home? Let us be realistic. We are dealing with a tragic problem which in the past has had certain squalid features. It was not unusual for back-street abortions to be performed in the home on the kitchen table. Where else could they be done? We are talking about homes with two or three rooms, which are already overcrowded, and where there are no facilities for an abortion to be done. It is no good noble Lords thinking that all that general practitioners would have to do would be to telephone a hospital and say that the 296 operation had to be done there. Two general practitioners cannot direct a surgeon to perform any operation. A surgeon is not a carpenter or a plumber. It would not be possible in every area to telephone a hospital and earmark a bed. The opinion of a surgeon must be sought. He will then be prepared to perform an operation and to provide a bed for the patient, where she is able to stay for, I hope, at least two days. I would emphasise that point, because if it is done in a surgery, does she walk home or is an ambulance forthcoming? We are seeking to eliminate the back-street abortion. It is essential that women should be given the best treatment in hospital, the kind of treatment that any other patient has.
There is another argument for this procedure, which every harassed general practitioner will appreciate. He will not be subject to undue pressure from women who are not strictly eligible for abortion under the Act. If he can refer them to an independent doctor at a hospital, he will not have his livelihood threatened—because the present capitation basis, which I hate, means that before a poor doctor offends the patient, he has to consider his livelihood. He should be free to say to a patient, who has every right to ask about abortion, that he would like a second opinion and that she should go to hospital and see a gynæcologist. The same point, of course, applies in regard to doctors who are asked by their patients for expensive proprietary drugs. We must not expose doctors to a new form of pressure. Finally, I would say to my noble friend Lord Silkin, with the utmost sincerity: if we do not provide conditions which are safe for the mother and acceptable to the medical profession, this Bill could fail to achieve its purpose.
§ 4.22 p.m.
§ LORD STONHAM
I hope it will be for the convenience of the Committee if, before speaking to the Amendment now under consideration, I indicate the Government's general approach to the Committee stage of the Bill. Your Lordships will recall that, on Second Reading, I made it clear that the Government were neutral on issues of principle raised by the Bill, and members of the Government are free to vote as they wish. That remains the position. But the Government 297 recognise that your Lordships' House, by its decisive vote on Second Reading, has shown itself, in principle, in favour of some amendment to the law on abortion. In view of this, the Government are prepared to advise on the practicability of a particular Amendment, although this will not necessarily imply that the Government consider the Amendment desirable.
In reply to the question of my noble friend Lord Silkin, we are also prepared, as in the case of the Sexual Offences Bill, introduced by the noble Earl, Lord Arran, to make available the services of Parliamentary Counsel to look at any Amendments accepted by the House in Committee, and, if necessary, to put them by the Report Stage in a proper form to give effect to the expressed wishes of the House. It occurs to me that there may be parts of clauses of the Bill which meet general approval, whereas the whole of a clause or subsection may not, and our offer with regard to drafting covers any of these contingencies. I shall refrain from comment on matters of principle, whilst giving whatever assistance I can on matters of fact, feasibility, and the practical application of the proposals your Lordships have under consideration.
This leads me to say at once that, in the view of the Government, neither the Amendment which Lord Dilhorne has moved, nor Lord Silkin's proposal, which he seeks to amend, would leave us in a satisfactory position, because neither Amendment fulfils what we regard as four essential safeguards. The first is the need for two concurring opinions. That is provided for in both Amendments. The second is that the doctor must act in good faith. That is provided in neither Amendment. The third is that there should be a certificate, which is provided in both Amendments. And the fourth is—and I was delighted to listen to the speech of my noble friend Lady Summer-skill, who dealt with this—that operations of this kind must, in the view of the Government, be performed in a hospital or a registered nursing home with the necessary facilities. We propose to consult my noble friend Lord Silkin about this matter and at a subsequent stage to assist in making the necessary provisions.
I think that I should comment on what the noble and learned Viscount had to say with regard to National Health Ser- 298 vice doctors. Of course, they include those who are part-time hospital doctors and those who have substantial- private practices as consultants. Therefore, in our view, the safeguard he has mentioned does not cover the whole point satisfactorily. Let me take the first point, about adequate safeguards against certificates being issued in bad faith—for example, on a mere pretence that one of the statutory grounds had been satisfied, Lord Silkin's new clause would make it lawful for a pregnancy to be terminated if two doctors certified that this was necessary. The effect of this would make the legality of the abortion dependent on the issue of the two certificates, and if these were available it would seldom, if ever, I am advised, be possible to challenge the grounds on which the certificates were issued, because in law they are virtually unchallengeable. I gladly acknowlege what we all know to be true, that the overwhelming majority of doctors treat the subject of abortion according to the highest: standards of professional conduct; but that makes it the more necessary not to leave a wide open door for the tiny minority who do not.
§ VISCOUNT DILHORNE
Would the noble Lord be good enough to explain to me how it makes it more easy to challenge them if we insert the words "in good faith"? Without those words in the Bill, if we can show that the certificates are false, a prosecution can be made. We cannot prosecute if we put in the words "in good faith", unless we can show that the certificates are also false. So the addition of these words will add nothing. I think the Home Office ought to think again about this matter.
§ LORD STONHAM
Perhaps the noble and learned Viscount will wait until I have developed the argument. Then, if he is still of the same opinion, it would be a matter of discussion at a later stage. It would be more helpful if I completed the whole argument. I was making the point, with which the noble and learned Viscount agrees, that it would be wrong to leave a wide open door for the tiny minority of doctors who do not observe the best standards of professional conduct in this matter. Whatever the final version of the Bill, in essence it will say that abortion should be permissible only on certain carefully specified grounds; and 299 if that is Parliament's intention, it is imperative that there should be adequate means of checking the claim that an abortion was performed on one or other of those grounds.
Your Lordships will recall that my noble friend's original Bill, which we considered on Second Reading, refers to a pregnancy being terminated by the doctor "in good faith" that one of the specified grounds made the operation necessary. We think that the words "in good faith" should be retained, because the absence of good faith—for example, where there were no grounds for believing the operation was necessary under the terms of the clause—would enable a prosecution to be mounted. Of course we should also still want, as Lord Silkin proposes, the requirement of a concurring opinion from another doctor and certificates from both doctors—but neither these words nor the alternative proposed by Lord Dilhorne would provide us with a real case for prosecution when doctors acted in bad faith.
Another question which arises from this matter is that the present Bill provides that where a doctor is prosecuted the onus of proof that he did not act in good faith rests on the Crown. In discussion I suggested—and I believe the noble and learned Viscount concurred—that this was too onerous a burden. My noble friend Lord Silkin has now avoided this problem by the form of his present Amendment, and he proposes at a later stage to move an Amendment to leave out the present clause on onus of proof. The Government would not wish to object to the onus of proof resting on the Crown if a certificate from both doctors and notification are required, because the prosecution would then have advance notice of the grounds on which it was alleged the abortion had been performed, and if there was failure to notify, even after criminal proceedings had been started, that could be evidence on which the prosecution might rely to establish that there was not good faith.
There are several other similar and related points which we have under consideration, and obviously we must reserve the right to consider the whole problem further; and Parliamentary Counsel will also need to consider the precise relationship between the present proposals and 300 Section 58 of the Offences Against the Person Act. Meanwhile, the Government agree that, if it is found necessary, the Bill should deal expressly with onus of proof. This point can be considered with the others I have mentioned with the redrafting of the whole of Clause 1 after your Lordships have revised it.
In the Government's view, it is also necessary, as I mentioned earlier, to make some provision as to the place at which termination of pregnancy may be carried out, because, as my noble friend Lady Summerskill mentioned and as we all know, this is an operation entailing some risk—and perhaps a good deal of risk—to the woman, and it is surely essential that it should be carried out either in a hospital or a registered nursing home which has the necessary facilities. When we reconsider this matter we can take account of Lord Silkin's point about the need for a properly qualified surgeon to perform the operation; and if the woman goes to hospital, obviously she will have the necessary stay according to her condition after the operation. This is in accord with the views of the British Medical Association, and before the Report stage we should like to consider how it might be implemented.
May I now deal briefly with the particular issue of the choice between Lord Silkin's proposal, that the certificate should be signed by the doctor who performs the operation and one other and Lord Dilhorne's alternative suggesttion, by the woman's own doctor plus the hospital doctor or two hospital doctors: and I would point out that in Lord Dilhorne's proposals neither of the two need be the operating doctor. If the noble and learned Viscount's Amendment was accepted, two doctors could certify, neither of whom had anything to do with the operation.
§ VISCOUNT DILHORNE
The noble Lord has pointed that out, but I am not sure whether he is saying there is anything wrong with it or not.
§ LORD STONHAM
That is what I am going to deal with, and that is why I pointed it out. This raises two issues: first, whether the Bill should restrict the medical practitioners who may issue certificates; and secondly, whether the operating doctor should be one of the 301 signatories. We appreciate that Lord Dilhorne's proposal—and he made this quite clear—is intended as a safeguard against abuses; against certain doctors who would be ready to provide certificates without asking too many questions; against doctors who might set up in partnership and who, in fact, might almost be prepared to sell certificates. In our view, however, the method proposed by the noble and learned Viscount could exclude doctors whose opinions may be needed and ought to be accepted. For example, when the effect on the mental health of the mother was at issue, a psychiatrist might be needed, and some well-qualified and responsible psychiatrists practise outside the National Health Service.
Safeguards against abuse would be provided, as I have suggested, by the retention in Clause 1 of the requirement as to good faith; by the requirement for notification; and, as I also suggested, by specifying the places at which operations may be performed, all of which I hope your Lordships will agree should be included in the Bill on Report. Meanwhile, the Government are strongly of opinion that no doctor should be expected to carry out this operation unless he himself considers it a wise course to take, and for this reason we agree with my noble friend Lord Silkin that there are good grounds for requiring the doctor who operates to be one of the doctors who certify that the operation is necessary. On this particular matter, subject to the other points that I have made with regard to safeguards, we prefer the method of certification proposed by my noble friend Lord Silkin.
§ VISCOUNT WAVERLEY
I wish to add only two things, and that quite briefly. The first is that the noble and learned Viscount, Lord Dilhorne, spoke many times about the "patient's regular doctor". It seems to me exceedingly important that this character should be identifiable. I wonder whether at this stage the noble and learned Viscount could tell me how this identification is to be made.
§ VISCOUNT DILHORNE
If the noble Viscount wants me to answer the question now, may I say that I should think that when a woman has a regular doctor she knows who he is, and it is easier for people to find out who that regular doctor 302 is. If she has not, then she has the alternative procedure.
§ VISCOUNT WAVERLEY
With the greatest respect, where a National Health Service patient is concerned she has the doctor to whom the National Health Service card has been given. But by no means all patients are National Health Service patients. In the part of the country where I practise medicine there are significant numbers of patients who are private patients, who live in the country at week-ends and live in London during the week. They have two private doctors, one in the country and one in London, and they seem to me to be equally ill in both places. I find it difficult, in my capacity as consultant, to find out from either of the two doctors or the patient who is the regular doctor. It is a cause of great difficulty to me in my professional life. It seems to me that this point should be clarified to some extent.
The only other point I want to make is to support strongly the views of the noble Baroness, Lady Summerskill, and the noble Lord, Lord Stonham, about this business of a registered medical practitioner employed in a hospital. There are, as has been said, large numbers of general practitioners who at the moment hold short and not very important part-time contracts for half a session a week, and who could well, if they so wished, act in collusion with any other partners of theirs. I would point out, also, that if the proposal regarding the medical assistant category, which I think is being strongly supported on all sides, is implemented, there will be an even larger number of such general practitioners holding part-time contracts in the hospital but who have nothing whatever to do with decisions about termination of pregnancy. They may be working in the skin department, in the ear, nose and throat department, or in the eye department. They have no qualification, at any rate on that ground alone.
§ LORD AMULREE
I should like to support what the noble Baroness, Lady Summerskill, said about the location where this not entirely simple operation is to be carried out, and I am pleased to know from the noble Lord, Lord Stonham, that this opinion is viewed somewhat sympathetically. All I want to suggest, in supporting in general the 303 Amendment moved by the noble and learned Viscount, is that the hospital doctor should be a consultant. Whether we can specify that he should be a consultant—and I certainly do not mean by that that he should be full-time employed in the hospital; that seems unnecessary and it would be difficult to ensure—I do not know, but I certainly think he should be, for the reasons that have been put forward, so that one can be certain that the woman applying for an abortion shall be seen by a person who knows what he is talking about and, if possible, will be the person to perform this operation, which, as I have said before, is not carried out without risk.
§ 4.40 p.m.
Like the noble and learned Viscount, I read Sir Dugald Baird's description of what he had been doing in Aberdeen for many years, and it seemed to me that he was behaving extremely humanely and intelligently. The reason why he was able to behave so humanely and intelligently was because, as the noble and learned Viscount said, he was operating under the laws of Scotland, and they do not have a coroner in Scotland. This is not a joke; it is a serious fact. In Scotland, they have a procurator fiscal, and an inquest does not follow automatically when an abortion leads to death. Inevitably there will be deaths if one introduces widespread abortion, but provided it is done honestly, decently and properly, as Sir Dugald Baird has been doing it for many years, good and well; it is worth while doing it. There will be a tiny risk, but the risk attached to the Bill of the noble Lord, Lord Silkin, is that it will not be done when it ought to be done, rather than the other way round, for the doctors will be frightened, as Sir Dugald Baird was not frightened because he did not have the shadow of the coroner hanging over him all the time.
I entirely agree with almost everything my noble friend Lady Summerskill has said. I think the doctors must be of consultant status. I believe it will usually be two doctors of consultant status, rather than a general practitioner and one consultant, and for this reason. Many of these cases are "scruffy"; they 304 are sad, miserable little children who have run away from home, who may have been in trouble with the police authorities, who may have been in borstal, and who may have no general practitioner. More is the pity. They have no settled family life, and thus decisions will have to be made by a consultant physician and an obstetrician, or a consultant physician and psychiatrist, or by such people in hospital. This must be the usual procedure if this is to be humanely done.
§ LORD AMULREE
May I interrupt the noble Lord for one moment? It was made abundantly clear at Second Reading of this Bill, and it is certainly my experience in the gynæcological department of the hospital in which I work, that the majority of women patients are married women who have had several children and cannot bear the idea of having any more. The poor little thing who is having her first child does not constitute the majority of cases.
I accept my noble friend's correction at once. He is quite right, of course: the majority are worn-out ladies who have had a large number of children, but the others are the ones who will present the greatest difficulty, and those with whom Sir Dugald Baird was quite prepared to deal. I hope, therefore, that the Committee will accept the noble and learned Viscount's Amendment, but that it will be altered to provide that it will not be just, "employed in a hospital", but "employed as a consultant in a hospital". I do not think it matters whether he is an operating consultant or not, because no operating consultant will do the operation, or allow it to be done, unless he approves. In fact, I can see certain advantages in having two other people, as well as the consultant, agreeing to it.
The point that has exercised me is the place. I am quite sure that it should he done only in a hospital or a nursing home, as my noble friend Lord Stonham says. Indeed, I should be happier if it were done only in a hospital, hut I can see that this might be difficult, and I should be prepared to support the view that it should be a registered nursing home.
§ LORD STONHAM
If I might make it clear, it would have to be not merely 305 a registered nursing home, but one which could satisfy the Minister of Health that it had suitable facilities.
I am very glad to hear that it would have to be a registered and approved nursing home. Given those two assurances, and given one or two doctors of consultant status, plus the general practitioner or a second consultant, I can see no objection to this at all. It seems to me to be a thoroughly sensible idea. I hope very much that my noble friend Lord Stonham and the Government will not feel that psychiatrists outside the National Health Service must be included. I think this would be open to very great abuse. A reputable psychiatrist within the National Health Service could always he obtained, and it would be a temptation which should not be put in the way of some of us who might not be able to withstand it.
§ LORD SEGAL
I am afraid that I intervene in this debate under the disadvantage of not having had the opportunity of listening to the whole of the debate as it has progressed so far. I rise simply to question one or two remarks that I have heard since I entered the Chamber. In regard to the statement that one of the certifying doctors must be of consultant status, I think we ought to weigh very carefully what this may involve. Are we to insist that he must have consultant degrees? If so, we must realise that many doctors are in a consultant status in large provincial hospitals, or in small hospitals in relatively thinly populated areas, but do not possess consultant degrees.
The other point to be considered is this: must we always insist that this operation, involving a certain degree of risk but, nevertheless, relatively trivial, must always be carried out by a consultant of the hospital? Very often an appendectomy or a hernia operation is carried out by a junior hospital officer on the instructions or request of a hospital consultant, and I think it would be grossly unfair to expect every abortion necessarily to be carried out only by a hospital consultant.
A further point I would mention is that raised by my noble friend Lord Stonham, who said that as a safeguard he would like to insert a clause that both doctors who certify must be acting in good faith. I feel that is rather undesirable. Although we admit that 306 there may be certain members in every profession who may come under suspicion, nevertheless, I think it is undesirable that the law should set itself up as a judge of a doctor's good faith. We all know that there exists a disciplinary body for the profession, the General Medical Council, and to my mind that body alone is the only properly constituted body which ought to judge a doctor's good faith.
§ LORD STONHAM
If my noble friend will allow me, I should like to point out that the medical body to which he has referred cannot prosecute a doctor who has not complied with the conditions in the Bill when it becomes an Act, and it is no use making provisions of this kind unless it is possible for a successful prosecution to be launched.
§ LORD SEGAL
While accepting fully that point of view, nevertheless one ought to put forward the opinion that the General Medical Council can set itself up in judgment upon a doctor as a result of a complaint by any member of the public, whether a patient of the doctor or not, by a minister of religion, to whatever denomination he may belong, or even on the plea of a Member of Parliament who may object strongly to this provision. So I personally should very much prefer the deletion of these words about judging a doctor's good faith. Where the evidence is quite clear, as in the case where a doctor issues a certificate known to he false, then of course there is no question of a prosecution being justified. I should prefer this matter to be left to the disciplinary body of the profession. At this stage, that is all I would venture in the way of criticism of the provisions so far discussed.
§ VISCOUNT DILHORNE
I do not know whether any other noble Lord wishes to say anything about this Amendment. I am grateful for the consideration that has been given to it. May I say straight away that I think I was wise in the language I used about the registered practitioner in the hospital, because, with my knowledge, I should have found it very difficult to define with greater precision the kind of person whom I had in mind. I am very grateful indeed for the suggestions that have been made. What I had in mind was to have someone holding a responsible position in a hospital 307 who would give the certificates. I was not going into the difficulties and details of what precisely should be his status or degrees. My object, and the object of this Amendment, is to secure that a certificate should be given by someone holding a responsible position. The noble Baroness, whose support I welcome, suggested it should be a surgeon with gynæcological experience. The suggestion has been made that it should be a consultant.
I should be prepared to accept what was thought to be the right amendment, giving more precision to my Amendment, at a later stage, because I want to get this right; I think we are all agreed that we want a certificate to be given by someone holding a responsible position in a hospital. I do not myself want to define it so narrowly that it is going to be difficult for a woman to get the certificate. That is one of the things that were bothering me when I thought about seeing whether I could draft some definition. I do not want it to be difficult for a woman in a remote part of the country to get in touch with the people who can give her the certificate.
The noble Viscount, Lord Waverley, asked me the question who was the regular doctor, and could that be defined. I am not going to seek to attempt to do that. Whether or not a woman has a regular doctor or, as in the case he mentioned, the luxury of two regular doctors is a pure question of fact; it is not a question of law. I thought myself it was valuable to make provision for the opinion being given of the women's regular doctor, if she had one—not every woman has, but where she had—so that the other doctor would get the fullest possible information about all her circumstances and background.
I must say I was most disappointed in the views expressed by the noble Lord, Lord Stonham. I should like to deal with those in a little detail. He said—and I agree with him—that there must be two concurring opinions. He then made the point that the Bill should stipulate that the certificates must be given in good faith. To suggest that doctors would give certificates in bad faith I regard as an insult. The presumption is that where a certificate is required by two doctors, it is given in good faith. There is no need, in my 308 view to express that. Furthermore, to insert those words will not in the least degree facilitate the institution of a prosecution. If the noble Lord and the Home Office think it does, I hope they will think again.
As to the clause put forward by the noble Lord, Lord Silkin, supposing two doctors do not act in good faith. Let us just see what that means. It means that they certify that in their opinion (and this is a matter of opinion) the grounds specified in the Bill exist for an operation when in fact that is not their opinion; that is what not acting in good faith must mean. But without those words in the Bill, if it could be shown that two doctors had certified that something was their opinion when in fact it was not, those doctors could not claim the protection of this Bill; they would be open to prosecution. Therefore, the inclusion of the words "in good faith" is not only insulting but wholly unnecessary, for they add nothing.
I thought when hearing the noble Lord speak—and also from one of his interventions, when he said something to the effect that there was no use passing a Bill of this kind unless a prosecution was possible—that perhaps the Home Office were focussing too much attention on the possibilities of prosecution. If we get the machinery right with provision for certificates from responsible people in the medical profession, the risk of a fraudulent or false certificate is minimal. The chances, even if it is false, of the prosecution being able to prove that the opinion given was false—and it is a matter of opinion—are in any event negligible; and the noble Lord had better face up to that. So that second point on which he laid so much emphasis is, I think, a bad one.
Now I come to the hospital requirement. Of course we are all agreed that the operation should be done with great care, in conditions of cleanliness and in a place where there can be proper attention. But surely it is without precedent to require the legality of any operation which a patient wants to depend upon the place of its performance. I would ask the noble Lord: is there any precedent for that, or is it something conjured up by the Home Office, with a view perhaps to making it more possible to prosecute? I can think of none. I think that where the law provides that an operation should be lawful, it is left for the patient and her 309 medical advisers to decide where that operation should take place.
Provided there is the test that responsible people in the medical profession must give their opinion that the operation is necessary, I think we should rely on them to secure that the operation is performed under suitable conditions and in a suitable place. It would be entirely wrong to accept the Government's view that it would be necessary to say to this woman, "You cannot have your pregnancy terminated lawfully, because the Government insist that it can be done only in a hospital, and it cannot be arranged for it to be done in a hospital until after the baby is born." What about the pressure on accommodation in the hospital? Has the noble Lord considered that? I do not know—there are no statistics—the numbers of illegal operations that take place now. The numbers may be very considerable; and the need for the operation to take place early we all know. I am certainly not against it—indeed, I would hope that the vast majority of these operations will take place in a hospital or registered nursing home, or nursing homes, approved by the Ministry of Health. But to lay that down as a condition of the legality of the operation would, I think, be entirely wrong. I do not want to say any more about that because it is rather outside the scope of this Amendment.
This Amendment to the Amendment, as I say, is designed only—and the noble Lord, Lord Silkin, said it of his provision—to secure an objective. If my Amendment to the Amendment is carried, I will gladly consult with the noble Lord, Lord Taylor, and the noble Baroness, Lady Summerskill, and others, to see if we can find a proper way of defining the individual who holds a position of such responsibility as we all have in mind.
Before the noble Viscount completes his observations, would he be prepared to consult on this question of place? Because although one sees the force of what he says, there is force the other way; namely, that there is no other operation which is surrounded by so much legal difficulty, where there are so many penalties and dangers, for both patients and surgeons, and where, as a safeguard for both, there is much to be said for having the operation performed in a place of known safety.
§ 5.0 p.m.
§ VISCOUNT DILHORNE
With great respect to the noble Lord, I think that on this point there are two currents of thought which are somewhat conflicting. If we look at it from the point of view of the patient's safety, there is a great deal to be said for having the operation done in the hospital or the registered nursing home. But I should not like to lay it down that, from the patient's point of view, it must he done there. That is the point I am making. So far as the patient is concerned, I would leave it to her medical advisers. Once you get a certificate by responsible people, they will be able to advise, and to advise well. So far as the patient is concerned, I see no need for making the legality of the operation depend upon the place of its performance. Nor do I see that it is necessary to do so from the point of view of the medical profession, because if the noble Lord's Amendments are carried with my Amendment, the legality will not depend upon the place of operation: the legality will depend upon whether the procedure prescribed is followed and whether the certificates required are given by persons in authority.
But I am willing to discuss this matter further with the noble Lord. There are those two different points of view. I am reluctant to say at this moment—it does not arise on this Amendment—that I would confine the operations only to those which take place in hospital or in a registered nursing home, because I think that might be unduly restrictive. The only issue on this Amendment is whether there should be a certificate of either a regular doctor, if the patient has one, and one responsible doctor in the National Health Service—who can be defined later—or the certificate of two such doctors.
§ LORD STONHAM
Before the Amendment to the Amendment is put, I should like to answer two points which have been made by the noble and learned Viscount. The first is his suggestion that the requirement of suitable conditions may have been conjured up by the Home Office in order to make prosecution easier. I assure him and the Committee that there is no substance whatsoever in that suggestion. The suggestion that I made clear is one which accords with 311 the views of the British Medical Association. The words I have used are those suggested by the Ministry of Health, and the other half of that is that the Ministry of Health consider that, in general, the Service can be expected to meet the requirement if such requirement is put into this Bill. So much for the question of suitable conditions, which would be entirely—and I should have thought this would have had the support of every noble Lord—for the welfare of the patient.
On the other point, the question of good faith, which is an important legal point—I do not wish to pursue it in any detail—the noble and learned Viscount said the suggestion that two doctors might give a certificate in bad faith is insulting. It is no more insulting than to suggest, as he did, quite truly, that two doctors might set up in a partnership and let it be known that they would be willing to accept abortions.
§ VISCOUNT DILHORNE
The noble Lord has completely missed the point. The point is the distinction between assuming in a Statute that members of the medical profession act in good faith, as they generally do, and stipulating in terms in a Statute that they must act in good faith, as if they generally did not. That is where the insult would be. That is what would he insulting. I also asked the noble Lord whether there was any precedent for making the legality of an operation dependent upon the place of its performance being in the Statute. Could he answer that question?
§ LORD STONHAM
I am afraid I cannot give a precedent now, but I will certainly let the noble and learned Viscount know the answer to that point. On the point of good faith, our understanding—and I tried to make this clear—is that the suggested new clause does not permit prosecution if there are two certificates. But in any event what we want is that there should be an offence only if there is bad faith, and not if a doctor has made an honest mistake. That is the whole position. But if there has been bad faith—and there may be some cases, as we all admit—then it should be possible for a prosecution to lie. This provision is a most difficult legal point which will require a great deal of consideration before we come to Report. I thought I 312 should make it clear that we feel that it would be a necessary provision.
§ VISCOUNT DILHORNE
If I may add a word, would the noble Lord bear this point in mind? For the operation to be lawful, what is required is to have a certificate by two doctors of their opinions. If they certify together on a piece of paper which contains something which purports to be their opinion when in fact it is not, they have not given two certificates of their opinions and therefore they cannot obtain the protection of this clause. I would ask the noble lord to give consideration to that. I think that if he does so he will find that the words "in good faith" are unnecessary.
§ BARONESS SUMMERSKILL
May I ask my noble friend one question? He need not answer me now, but he can let me know. This suggestion that the words "in good faith" should be on every certificate seems to me to be absolutely novel. If it is so important, why have not his Department seen to it that the hundreds of thousands of certificates which doctors sign have on them the words "in good faith"? Does it mean that without good faith the certificate is not legally valid?
§ LORD STONHAM
My noble friend has completely misunderstood what I said. I am sorry if I did not make it clear. I never suggested at any time the form of the certificate that should be given, or that the words "in good faith" should appear on it. I am merely suggesting that under the Statute it should be necessary—and the exact form of words I am not yet suggesting—to act in good faith; indeed, my noble friend Lord Silkin has those words in the original Bill. I am merely saying that they should be retained in the new Bill, and I did not hear anyone suggest, when my noble friend moved the Second Reading of his own Bill, that to suggest that any doctors might act otherwise than in good faith was insulting.
§ LORD COLERAINE
I speak with great diffidence, because I am neither doctor nor lawyer, but I wonder whether my noble and learned friend can clarify one point that raises difficulty in my mind. He said, I think, that if it was not the real opinion of the two registered medical practitioners that the termination 313 of pregnancy was justified, they could not get the protection of the Bill. As I read the proviso, it would seem to me that it does not insist that it should be the opinion of these practitioners, but only that they should be prepared to certify that it was. Am I wrong in that?
§ VISCOUNT DILHORNE
If two doctors certify that it was justified, I should have thought it was clearly implied that that was their opinion. If they have given a certificate which does not state their opinion, it is not a certificate of their opinion. I think it is as simple as that.
§ 5.10 p.m.
§ LORD SILKIN
A great part of the discussion has taken place on words which are neither in my Amendment which is before the Committee nor in Lord Dilhorne's Amendment to the Amendment. The phrase "in good faith" has been used. My noble friend Lord Stonham is seeking to put into both of our Amendments something which neither of us inserted. It is true that in the original Bill there appeared the words "in good faith", but I explained to the Committee that I had entirely recast the Bill, I had thought about it again, and had come to the conclusion, as did the noble and learned Viscount, that those words were unnecessary, and indeed rather offensive; and they have been left out deliberately. If, however, I am advised by the Parliamentary draftsmen that those words are essential to the Bill, I shall, naturally, be ready to listen to what they have to say.
However, the question before us at the moment is not whether there should be a second opinion, but what should be the nature of the concurring opinion. Those who have spoken to-day have not agreed on what it should be—they have not even agreed with the noble and learned Viscount. Certainly I would agree that something more than the words in my Amendment should be included. I accept that one would need some kind of qualification as to what the second opinion should be.
It has been clearly shown that the noble Viscount's Amendment, as it stands, will not do; in fact he has admitted it. I suggest to him that we should all think again as to exactly the words that we want to include. We are 314 not clear at the moment, and to include something in place of my provision which itself it not satisfactory is not very good business. I suggest that we should all get together to try to thresh out something, and if the noble Viscount will then put down an Amendment it will probably go through without any difficulty. That would probably be the simplest way of getting over the impasse in which we find ourselves at present.
§ VISCOUNT DILHORNE
I have listened to the noble Lord sympathetically, but a little pessimistically. I do not want to reveal the contents of the long discussions which I have had with the noble Lord about this Bill, but I can go as far as to say that, up to now, it has been a point of great controversy between us. I have been saying, "I want to see two responsible doctors in the National Health Service give the certificate", and the noble Lord, having moved from one general practitioner, moved from two, and was not prepared to go any further. If we could get the principle established as the wish of the House, I do not think that the formulation of this as a matter of words would be difficult; but it is difficult to see from the speeches exactly what is the view of the Committee on the question of principle.
The principle raised by this Amendment is whether it should be a certificate by any general practitioner, or whether, as my Amendment proposes, it must be a certificate, if not by the woman's regular doctor, by responsible persons employed in a National Health Service hospital. If the Committee are in favour of what I have put forward, I think we could agree about how one should define "responsible persons in the National Health Service". It would be valuable, if we are to have further discussions—which I, for one, should welcome—to have an expression of view from the Committee on what is the question of principle raised by this Amendment. I feel that this is neccessary.
If the Committee say, "No, we are quite content to leave the certificates to be given by any medical practitioner", there is no need for further definition. If, on the other hand, the Committee say, "Yes, it should he the woman's regular doctor, if she has one; but, if not, two responsible people in the National Health 315 Service", then at a later stage we can proceed to define the position in relation to those responsible persons. While I am reluctant to disagree with the noble Lord, I feel that there would be an advantage in coming to a conclusion on this issue.
§ BARONESS SUMMERSKILL
The noble Lord left out hospitals. I am sure that he meant to say, "in the National Health Service hospitals".
§ LORD CONESFORD
Might I make a suggestion to the noble Lord, Lord Silkin? The Amendments moved by my noble and learned friend Lord Dilhorne are three in number, although, of course, they have all been taken together. Amendments Nos. 2 and 3 merely improve the drafting, and the main contribution is made by the noble Viscount's third Amendment, which is No. 4 on the Order Paper.
I have listened with an open mind to the whole of the discussion, and I should like to express my gratitude, as a lay Member of the House, to the medical Members who have given us their opinion. What has been common to them all is that something about qualifications should be included, and the Amendment of my noble and learned friend deals with qualifications. As Lord Silkin rightly said, it has been generally agreed that it is not entirely satisfactory and will not do, as it stands, but I suggest that it will be easier to amend it if it is in the Bill than to start afresh with no mention of any qualifications, as we should do if we did not accept my noble and learned friend's Amendment. Therefore, I suggest that the noble Lord, Lord Silkin, might accept this series of Amendments, leaving open what the qualifications should be. He would thereby avoid the necessity for any Division, and would do his own cause no harm.
§ LORD SILKIN
I do not want to start off by dividing the Committee on an issue which is not of very great importance: that is to say, whether the noble and learned Viscount's Amendment, unsatisfactory as it is, should go into the Bill, or whether my Amendment should be 316 retained, with an undertaking that it will be amended before the next stage. In the interests of good will, and hoping that I shall get a good mark hereafter, I am prepared to accept the noble Viscount's Amendment to the Amendment.
§ On Question, Amendment to Amendment agreed to.
Amendment to Amendment moved—
Line 5, leave out ("such").—(Viscount Dilhorne.)
§ On Question, Amendment to Amendment agreed to.
Amendment to Amendment moved—
Line 5, after ("practitioners") insert ("being either the pregnant woman's regular doctor and a registered medical practitioner employed in a hospital under the National Health Service or two registered medical practitioners so employed,").—(Viscount Dilhorne.)
§ On Question, Amendment to Amendment agreed to.
§ 5.18 p.m.
THE EARL OF LYTTON moved, as an Amendment to the Amendment, in paragraph (a), to leave out "at or after" and insert "or at" [the birth of the child]. The noble Earl said: The purpose of this Amendment is to sound your Lordships' opinion as to whether the retention of the word "after" in Clause 1 would leave the door open for this to be read in the light of the wording of paragraph (c), even if that paragraph were removed from the Bill. It was clear from the Second Reading debate that the majority of your Lordships wanted to substitute for the present Case Law, or something like it, Statute Law. It was not at all clear what proportion of Members would wish to go beyond that point. Up to that point it is covered by paragraph (a). The Bench of Bishops may consider that their views are adequately reflected in the Church of England pamphlet which has been produced since we last discussed the matter, and may feel that, ethically, their values are not violated by the terms of the clause as drawn—namely, to defend the first principle, the right of the fœtus
to live and develop. Discussion will proceed on this general assumption, that the
right may be offset by other conflicting rights; and that the proper function of the criminal law is
to regulate and adjust what cannot be regulated in other ways. I take this from page 32 of the Church of England's pamphlet.
Also, the right reverend Prelate the Bishop of Exeter, in his speech to your Lordships on Second Reading, said:
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". [OFFICIAL REPORT, Vol. 270 (No. 11), col. 1231, 30/11 /65.]
It seems to me that the purpose of paragraph (a), as expressed, is to put that limited purpose into effect and to go no further, and definitely not to go so far as paragraph (c), which we shall be discussing later. The word "after" has a limited clinical meaning, which I discussed with one of the joint secretaries of the B.M.A.'s Committee on Abortion, and, naturally, neither he nor any other doctor to whom I have spoken has the least objection to "after" being included. There are grave risks to life during pregnancy and at the time of delivery, and there is the risk of collapse afterwards. But I am asking your Lordships: does not the word "after" extend indefinitely into the future and imply something of paragraph (c)?
§ I asked the doctors, including the one at the B.M.A. to whom I have referred, whether there were medical conditions where there would not be this grave risk during pregnancy, where there would not be this grave risk during delivery, but where, nevertheless, there would be a grave risk after. But I could not find any who said that, if there was a risk of collapse afterwards, there would be no such risk at the time of delivery or during pregnancy. I am aware that the B.M.A. have not supported this Amendment of mine. I consulted them, and they told me that it was of no particular interest to them, and I have today received a courteous letter with their recommendations.
§ I have no wish to press this matter, but I should like to feel that paragraph (a) covers only the narrowest field, on the basis of the vital conflict between two beings with the right to live, when 318 the decision may be taken in the mother's favour. I do not wish to say anything more, because I have no intention of pressing this small Amendment. In the event of paragraph (c) being eliminated, would the word "after" include something more than those who favour this vital conflict would want? I beg to move.
In paragraph (a), line 4, leave out ("at or after") and insert ("or at").—(The Earl of Lytton.)
§ 5.24 p.m.
§ LORD SILKIN
The noble Earl has quite clearly explained the difficulty in which he finds himself, which is that he does not want to extend the meaning of paragraph (a) beyond the actual, immediate effect of the pregnancy on the woman. I do, and that is the difference between us. I cannot pretend, of course—and I am not pretending—to be an authority on this subject, but it is conceivable to me, and I have known of such cases, that a woman can safely survive a pregnancy, but the after-effects of the pregnancy are very serious to her. I need not go into detail about that, because I do not know enough about the matter, but, as they stand, the words in my Amendment are intended to cover these cases. In other words, the danger to the woman is not ended at the delivery; it may continue afterwards. Therefore I hope that the noble Earl will be prepared to accept what I have said, and not to press his Amendment.
§ BARONESS SUMMERSKILL
Having had babies, I should like to ask whether the noble Earl has ever considered this point. A woman might have a chronic illness which has not entitled a doctor to procure an abortion, because he does not believe that she will die at childbirth. So she is carefully looked after during her pregnancy and after the childbirth, and she survives, but she is still a sick woman. Has the noble Earl considered the appalling strain to which that woman is subjected after the confinement, when she has to care for the child? I cannot quite understand, when he suggests that a woman is not subject to any strain after having a child. I should have thought that the strain to which a sick woman was subjected was much greater after the birth of the child, and, indeed, for many 319 years after, when she may be up day and night with a screaming baby.
§ VISCOUNT WAVERLEY
I will not take up your Lordships' time for more than a moment or two. On this question of leaving out "after", there is one relevant consideration, and that is of post-confinement psychoses, which are mostly depressive illnesses, often accompanied by a risk not only to the mother of suicide, but also to the child of infanticide. The latest figures show that 86 per cent. of all psychoses associated with pregnancy occur after the confinement rather than during it. Furthermore, there is some evidence, although this is not common, that such post-confinement illnesses are repetitive and occur in one confinement after another. There would, therefore, in certain circumstances, be a perfectly valid ground for terminating a pregnancy when a situation has recurred in the postpartum period.
§ LORD STONHAM
There is one other point which the noble Earl might like to consider. It is generally accepted that the words used by my noble friend in paragraph (a) of his Amendment give statutory effect to the present position under case law. If I may remind the noble Earl, in the Bourne case the judge said in his summing-up:If pregnancy is likely to make the woman a physical or mental wreck, the jury is entitled to take the view that a doctor, who, in these circumstances, and led by his belief, operates, is operating for the purpose of preserving the life of the woman.That implies that, in considering the risk to the mother's life, a doctor is entitled to consider the possible effect of the pregnancy on her health, not only before or at the time of the child's birth, but also afterwards. Therefore, if the noble Earl succeeded in taking out the words he seeks to remove, and if this Bill were passed, it would make the statutory position more restrictive than the present position under case law.
THE EARL OF LYTTON
It is clear from all the comments that there is an objection on the part of those with a medical interest in the mother to the exclusion of the word "after". However, nobody has answered whether, by the inclusion of this word, there is any intention to open the door further and to let 320 in anything implied in these other paragraphs. I am not going to press the matter further, but I should like to ask generally whether it is the intention to retain something of the character of the provisions of paragraph (c) as well as these immediate clinical after-effects. I gathered two things from what the noble Baroness said. First, I wonder if she understood that I was not contemplating (I thought I made it clear) that a severe illness could start without anything whatever being foreseen; that it could be predicted that she might be exceedingly ill afterwards when there was no risk at delivery and no risk during the pregnancy. All this is prediction. I do not wish to press the point, but that is what I was trying to get at.
Beyond that, I have no wish to eliminate proper treatment if it can be stated that a prediction of the condition after can be made independently of that during delivery, and during pregnancy. I think I should like a lead. Opinion on the medical side strongly supports the retention of "after" for clinical reasons, and I should like to ask the Government—perhaps the noble Lord, Lord Stonham, will tell us—or the noble Lord, Lord Silkin, whether it is intended, if paragraph (c) is eliminated, that these provisions should remain through the retention of the word "after".
THE EARL OF LYTTON
I asked a question hoping that it would be answered before I withdrew the Amendment. If not, my next step is to ask to withdraw.
§ LORD SILKIN
Perhaps I should say, as a matter of courtesy, that I would rather not say what would happen in the very unlikely event of paragraph (c) being defeated.
§ Amendment to the Amendment, by leave, withdrawn.
§ 5.34 p.m.
§ THE LORD BISHOP OF EXETER moved, as an Amendment to the Amendment, to leave out paragraph (b). The right reverend Prelate said: I think that this is where the crunch really comes. My Amendment to delete paragraph (b), and indeed the Amendments to delete paragraphs (c) and (d) also, are based on my 321 objection to the new principle which these paragraphs introduce into the Bill. That the unborn child's right to live yields to the right and interest of the mother, I concede; and if the threat to the mother is sufficiently severe I concede the legitimacy of abortion. In reaching such a decision as to the gravity of the threat to the mother, I would include all those things which are called socio-medical reasons. I would wish the total human situation of the mother to be taken into account, though I agree that to make these judgments and predictions about the future will place upon those who have to make them a very difficult and heavy burden.
§ However, here in paragraph (b) we have as the justification for an abortion not any grave threat to the life or health of the mother but what are the other interests of the child. This is quite a different principle, and is one which I find unacceptable: not, I hope, from any lack of sympathy for or sensitivity to the enormous suffering which has to be endured by gravely deformed and handicapped children; nor, indeed, because I underestimate the burden which the parents of such children carry. However noble their devotion and however sacrificial their love, this does not remove the suffering either from the parents or from the child. But is it right to prevent that suffering from happening by means of an abortion? For what we are in fact saying if we advocate an abortion for these reasons is that life under certain conditions is just not worth living. We are saying, "It is better if this child is not born". Looking ahead, and with such knowledge as we have, we say, "When we see that child actually living in its deformed state we shall say to ourselves that it would have been better had that child never been born. Therefore, if that is so, ought we not now to ensure, while we have the power, that in fact it never will be born?"
§ But have we really the right to say that kind of thing? Would all the living spastics agree with us if we said it? And where would one draw the line? How would one define a "reasonable enjoyment of life"? There are some malformations which begin in the womb and which, after the birth, are of such an afflicting character that one must say, "It would have been better if that 322 fœtus had never come to birth". But here we are estimating risks, for a fœtus suffering from this kind of deformity cannot, with certainty, be identified. I understand that pædiatricians and gynecologists admit this. But they say you can accurately define the risk in any given case, and they argue that beyond certain points the risk should be judged unacceptable and abortion allowed. One pædiatrician whom I consulted said that, in his judgment; a risk of over 15 per cent., or, at any rate, under 25 per cent., would be unacceptable. It is undoubtedly true that you have this high degree of risk of serious deformities in a number of cases: one in seven, or, maybe, one in four; though I am given to understand that in the cases concerning German measles—where German measles can be accurately diagnosed, and not mistaken for something similar to it—the average risk level is not nearly as high as is commonly stated. It can vary, in some cases from 50 per cent., down to 10 per cent., down to nil, according to the period of pregnancy and the strength of the virus.
§ One of the immense difficulties confronting us in accepting the principle of abortion in the alleged interests of the child is that we are estimating statistical risks; and I am informed that there are a mere handful of doctors in this country who are capable of giving such accurate predictions in any one given case. But, granted that an accurate prediction is made in a particular case, should we force a woman to accept a risk which is, say, one in four or one in seven, that the baby she will bring to birth will be hideously deformed? Our instinct, of course, is to say, "No. No woman should be forced to face such a situation". But suppose one puts it the other way round. A risk of one in four that the baby will be horribly deformed means that you have a four to one chance that the baby will be perfectly normal; so that three times out of every four, if you allow abortion in this kind of situation, you will be destroying a perfectly normal and unmaimed life. I find it very difficult to make up my mind on these extremely serious cases where the statistical risk has been accurately estimated. But I am quite sure that a wide and general application of this principle would be utterly and entirely wrong, and would gravely damage the general 323 estimate of the value of human life which is held in our society.
§ I think that this paragraph is much too widely drawn. It would legalise abortion where there are minor risks and minor deformities. I believe also that the most distressing cases of all would probably be capable of being brought under paragraph (a). In such a situation, the mother might well be under such grave distress that an abortion would be lawful, because the pregnancy was constituting a grave threat to her mental health. But, as I say, paragraph (b) is too widely drawn by far. I think it is, perhaps, extremely dangerous and I should like to see it withdrawn. I should like to see further consultations held with the medical profession, and I believe that further advancements in medical science should be awaited before we allow the human fœtus to be destroyed without the absolute certainty that it will on birth prove to be gravely and hideously deformed. I beg to move.
Amendment to Amendment moved—
Leave out paragraph (b).—(The Lord Bishop of Exeter.)
§ VISCOUNT DILHORNE
As the noble Lord, Lord Silkin, indicated, I am responsible for this form of words; so perhaps the Committee would like to hear from me at this stage an explanation of paragraph (b) and the reason it was drafted in this way. With a good deal of what the right reverend Prelate said I find myself in agreement; but to hear him speaking I could not believe that he had really studied this provision in Lord Silkin's new clause. Most of what the right reverend Prelate said would have been entirely apt and entirely right in relation to the original clause in the Bill, because it says in paragraph (b) that the pregnancy could be terminated if it were believed that:…if the pregnancy were allowed to continue there would be grave risk of the child being born grossly deformed or with other serious physical or mental abnormality,…That is very wide. Then, indeed, the observations that the right reverend Prelate made about spastics and others would apply. But when the right reverend Prelate went on to say that this new paragraph (b) is too widely drawn, and would cover minor risks and minor deformities, 324 I can only say that I regret he has not appreciated the effect of this provision. This is what it says:…the child if born would be likely to suffer from such physical or mental abnormalities as to deprive it of any prospect "—and I emphasise the words "any prospect"—of reasonable enjoyment of life.I cannot myself think that it is a fair deduction from those words to say that that provision would cover minor risks and minor deformities. It could not. It would be necessary to find, first of all, that there are physical or mental abnormalities of such a character as to destroy any prospect of a reasonable enjoyment of human life. That is a test which I should have thought was very hard to satisfy. The right reverend Prelate's argument on statistics (when he spoke of three out of four children being born normal or all right) will not apply in relation to this test; because two eminent doctors who are to certify that the conditions required exist must be satisfied that they exist in relation to that particular fœtus.
THE LORD BISHOP OF EXETER
Can the noble and learned Viscount give any example of where the medical profession can do this?
§ VISCOUNT DILHORNE
I was coming on to that in a moment. I was saying, first of all, that I think it important, before one discusses whether the paragraph should be in the Bill, to see what it provides. I gathered from what the right reverend Prelate said that he recognised that there could be, and were, cases of such abnormality that one must say it would have been better if that fœtus had not come to birth. I think the right reverend Prelate used those words.
THE LORD BISHOP OF EXETER
Yes, I did. What I am trying to get from the noble and learned Viscount is whether he has experience of a member of the medical profession who can with certainty say that this fœtus will be diagnosed.
§ VISCOUNT DILHORNE
I was coming to that. I am not seeking to evade it. But may I first say what this Amendment is designed to do? If the medical profession cannot say that, this provision will do no harm.
§ VISCOUNT DILHORNE
And it does no good. But if it can be said, as I am told that it can, it meets the case that the right reverend Prelate recognises exists. The case for this provision and the case against it is very different from that represented by the right reverend Prelate. That was what I was seeking to put forward first.
I said something about this matter during the Second Reading debate. I think that in most of these cases where there is a real likelihood of sufficient abnormality to cause anxiety or depression to the mother, the doctors may be able to certify—and the case may well justify it—that in their opinion there would be a grave risk if the pregnancy was allowed to continue. Here we have to contemplate a case which does not fall into paragraph (a), where it can be said, perhaps because of the past medical history of the woman, who may have had three children suffering from abnormalities of the kind to which the right reverend Prelate referred and where one would have said that it would have been much better had the children not been born and where the woman has again become pregnant and the doctors (we must depend on their opinion), can say, with as much certainty as they can express an opinion on anything, that the infant, if horn, has no prospect of reasonable enjoyment of life. In such a case, and only in such a case, would this particular provision apply.
I think it would be a defect in the Bill if it did not make provision for covering that kind of case. Such a case may he very rare; I do not mind how rare; I hope it is rare. But it seems to me that it would be a serious defect in the Bill if you made provision for the termination of a pregnancy in the interests of the mother, but no provision was made for terminating a pregnancy where you were satisfied that you could not say that it was likely to affect the health of the mother hut, as a result of abnormalities, mental or physical, you were satisfied that the child would be deprived of any prospect of reasonable enjoyment of life.
The noble Lord has said that it was my wording, and I take the responsibility. It applies a very severe test. A case may 326 not often come within the test. It will be for the doctors to decide whether it does as a question of fact, after considering all the relevant circumstances. But if they reached the conclusion that matters mentioned in paragraph (b) existed, I think it would be a defect in the Bill if we did not provide for a lawful termination. That is the reasoning for it. I have agreed with a great deal of what the right reverend Prelate said in his general observations about spastics and life under certain conditions, but this provision does not apply to that. If there is any prospect of reasonable enjoyment of life, no certificate under this provision could properly be given. To me this is the unusual case. I think there will be few which cannot be dealt with under the provisions of paragraph (a) where eminent doctors are of opinion (it is entirely a matter for them to judge) that conditions under paragraph (b) are satisfied. The right reverend Prelate said that if there are no such cases this provision will not do any harm. On the other hand, if there are such cases this provision could do a good deal to alleviate human suffering. I hope that, on reflection, when the right reverend Prelate realises how tightly this provision is drawn, he will not persist in his objection to it.
§ 5.55 p.m.
§ LORD SOPER
I hope that this Amendment will be rejected. I have no particular pleasure in opposing my noble ecclesiastical friend, and it is with a certain amount of surprised gratification that I find myself largely in agreement with the noble and learned Viscount. I believe that this matter has to he judged, for those who take the particular Christian faith which I hold and which is held by many in this Chamber, on matters which are primarily matters of principle rather than matters of pragmatic importance and calculations on events as they may fall out. Therefore I ask the indulgence of your Lordships' House to say a little about the basis on which I think that this Amendment ought to be rejected.
I believe that this question of abortion is not a circle of which the mother is the centre: it is much more like an ellipse of which there are two fascia, the mother and the child. This can form an introduction, I think, to the general principle which as a professing Christian, would 327 hold, and which I know is shared by many of your Lordships. It is that we are concerned with the alleviation of human suffering in order that we may care for one another; and care for the child as well as care for the mother must be of equal importance, as it seems to me, in our calculations. It is true, of course, that one who speaks from the Christian tradition should speak with a certain amount of shame, if not of deep regret, at the way in which the whole matter has been befuddled. I suppose it is a matter of general agreement that if you have a bad doctrine it will sound rather more significant in Latin than in any ordinary language. I think that the semantic problems are immense and have obscured the main principle.
I would gently break a lance with the right reverend Prelate when he uses a phrase like "the unborn child's right to live." If you wrote that clown and studied it with some care, I think you would find it semantically nonsense. No unborn child has any rights at all. Furthermore, it seems to me that there has been a fallacious and almost ridiculous attitude to the comparable values in eternal terms of a fœtus within the womb and a fully-grown person. We, who talk so much about the sanctity of the fœtal life, are, I think, under the strong condemnation of being pretty prodigal in our attitude to the way in which we are prepared to see adult lives squandered in warfare over the years. I do not think we stand on very sound ground when we make such an extravagant case for the eternal rights of what medically, it seems to me, cannot be regarded in a pre-formative sense but must be genetical. I, for one, would come almost to the view (in fact I think I am coming to it) that there is nothing morally objectionable in early abortion; it is but a continuation of contraception. However, that is not the point with which I am primarily concerned at the moment.
What I think has to be faced in your Lordships' House is whether or not in this particular concern for the welfare of other people we ought to pay as much attention to the precise cases cited by the previous speaker as we have already paid to the welfare of the mother. I believe that this is right. You will allow me to reinforce what I say from a practical experience which some of you 328 may not have had the opportunity of sharing. I am at this moment responsible for fourteen pregnant girls in a hostel and I am quite sure, from a careful analysis of their condition and what approximately their conditions are likely to be, that it would have been a very good thing if this law were already on the Statute Book; for I believe that at least four of these girls will be permanently impaired, spiritually, psychologically, by the trauma of childbearing, particularly at a very early age.
I am also responsible for a hospital in which we seek to care for delinquent girls, and I am perfectly certain that in your Lordships' House you will not doubt or treat as trivial or frivolous this comment: that anybody who has had any protracted experience of the psychological conditions of girls who pass through the experience of childbirth in squalid and dirty conditions, knows that they themselves have in some way contributed to those squalid conditions and to the, in large measure, impossible degree of squalor in which children begin to grow up. In those cases, children are to a certain extent malformed psychologically. They would not come properly within this Amendment to the Amendment, but they would very properly come within the general circumference of the argument that we are concerned with the welfare alike of the mother and the child. Then, as the noble and learned Viscount, Lord Dilhorne, said, there are cases in which, clearly, malformation precludes any chance of a full life, or of a recognisable life. It is for this reason that I believe that this Amendment is necessary.
It will not cover a multitude of cases, but it will fully meet the argument with which we are concerned. And though we may make mistakes, it will be a commendation of our attempts to face this problem, not as a question limited to the welfare of the mother in practice, but as an all-over conception of our affection and care for one another. I notice that in Graham Greene's last book, The Comedians, he puts into the mouth of one of his characters a very strong but pertinent phrase: that he would rather have blood on his hands than water on his hands, like Pilate. I, for one, believe that there is a strong spiritual case, and 329 an even stronger moral case, for regarding care for the child as imperative as care for the mother, and I believe that it should be safeguarded.
§ 6.3 p.m.
§ LORD AMULREE
I should like to say a word in support of the Amendment of the right reverend Prelate. First of all, it seems to me enormously difficult to tell, before a child is born, that there is going to be something so wrong with it that it cannot possibly be assured of leading a normal life or of enjoying life at all. Though this can be done, as the noble and learned Viscount said, I think that it will always be a rare thing. Another point which occurred to me is that it would be possible for the cases diagnosed before birth to come under paragraph (a), particularly when we have in the Bill the additional words, "after the birth of the child". If we are going to pass a Bill like this, I think that we must make it as simple and uncomplicated as possible; and if we are going to put in a series of paragraphs trying to define things which are almost undefinable, we shall make the Bill more narrow in its application than present Case Law. That is why I, for one, should like to support the right reverend Prelate here.
§ VISCOUNT MASSEREENE AND FERRARD
What worries me about paragraph (b) is how to define "reasonable enjoyment of life ". If some noble Lord could tell me how to define that, I should feel far happier. For example, somebody could be born physically abnormal—perhaps he might have no legs—but he might become a brilliant musician and therefore could be presumed to have reasonable enjoyment of life. On the other hand, somebody could be born with no legs and with no talents at all, and it could perhaps be said that he might not have reasonable enjoyment of life. I have some sympathy with this Amendment, because I am not at all happy about this phrase "reasonable enjoyment of life".
I rise to support the right reverend Prelate. I think that we have to look at this matter also from the point of view of the two doctors concerned. Are they going to be happy about defining "reasonable enjoyment"? I find it difficult to believe this. In the Carshalton Hospital Group, of which I am chairman, there are a great number of 330 children who are mentally subnormal and physically handicapped in some way, but I find that many of them have a very reasonable enjoyment of life. For example, there are two little thalidomide children who are very happy children. If I were a doctor, I should find it very difficult to decide whether or not those children should have lived. I should also think that if it came to the stage when it was painfully obvious that, perhaps through hereditary reasons, a second child in a family was going to be seriously abnormal, and that would come under paragraph (a), because it would cause grave injury to the mental health of the pregnant woman.
I find that abnormal children are usually dearly loved by their parents, and I think that this paragraph puts the doctor in a very difficult situation. We all want to get this Bill through; we all have the same end. But I think that both paragraphs (b) and (c) are going to make it difficult for the doctor to decide. We want to he quite clear-cut in what we intend to do, and any vagueness should be cut out of the Bill. I feel sure that paragraph (b) should be taken out of the Bill.
I was mystified about why paragraph (b) had been changed, until the noble and learned Viscount, Lord Dilhorne, explained what had been done. I think that the revised version is much more liberal than the original version, and I find the word "enjoyment" very difficult to deal with. I am advised by my colleagues in the British Medical Association that they feel that the new paragraph is infinitely less good than the original one, which says…grossly deformed or with other serious physical or mental abnormality.We can make an effort to diagnose that. We can make a statistical assessment. I admit that it would be difficult, but, as the years go on, this will become more accurate. I infinitely prefer the original, as I am sure would all doctors who are faced with this problem.
I think that we should deal with this matter, and I should prefer to keep the revised version than lose it, for the reasons which the noble and learned Viscount has given. It would be ridiculous to rely on paragraph (a) to cover such cases as would come under paragraph (b). It would be running away 331 from our obligations. I think that we owe it to the medical profession to give them reasonable definitions. I still think that these were given in the original version, but not in this one.
§ 6.10 p.m.
THE LORD BISHOP OF SOUTHWARK
I find myself torn one way and the other. I listen to one speech, and I agree with it; and then I listen to another speech, and I agree with that, too. The noble Lord, Lord Grenfell, is chairman of a hospital group in my diocese, and I know the wonderful care he gives to the children and the tremendous help this is. When he speaks, I feel my sympathy going out towards him; and I feel the same when the right reverend Prelate, the Bishop of Exeter, speaks. On the other hand, I remember that when I was on the board of management of a hospital for children of this kind there were two wards where we were advised by the medical officer not to enter. I suppose those two wards together would have equalled the space of our Chamber. I took the line that if a priest could not enter there, he could not go anywhere. I think I was the only member of the committee who went into those wards. I shall never forget seeing these children—one did not know what to call them—some with large heads and practically no bodies and others in all sorts of contortions. One child I asked about had had nineteen fits that day. Whether or not they were human is a theological problem beyond my understanding.
All I can say is that if it were possible to know in advance that one could prevent the birth of those children, I am sure that one should have prevented it. There is not a shadow of doubt in my mind about that. My wonder is—and I think it was in the minds of the right reverend Prelate the Bishop of Exeter, and the noble Lord, Lord Grenfell—how can you know in advance that this is going to be so? If this matter does go to a Division, I shall vote according to the medical advice that I am given. Is there a noble Lord in this Chamber who can really advise us on this point? I remember that it was on a Christmas Day that I visited these two wards, and I have never in my experience, of wars, death and so on, been shaken to quite that extent. If I could be satisfied by 332 what a noble Lord said to me this evening: "Yes, we can prevent that", then I should vote for paragraph (b). I am sure there are many of your Lordships who are in my position and who long for some noble Lord with medical knowledge to say: "Yes; you can depend upon medical judgment". If that be the case, please let us have this information.
§ 6.12 p.m.
§ LORD REAY
My Lords, this is a difficult Committee stage to deal with, and the Amendments to Clause 1, in particular are difficult, because there are certain similarities of principle between its paragraphs (between this paragraph and the case of rape in paragraph (d), for example; even between this paragraph and paragraph (c), in so far as both are principally concerned with post-natal considerations), as a result of which certain arguments and counter-arguments are legitimately usable for successive Amendments. There are, of course, certain others that are not. But one is presented with a delicate course to pick between repetition and irrelevance.
There is the correlative difficulty, that if a more obvious consistency should be observed in our total conclusions, some of the paragraphs interdepend on each other. For example, it would not seem very consistent to me to accept—although a case could probably be made for it—paragraph (d) if we had rejected paragraph (b); there would certainly be little sense in the inclusion of Amendment No. 11, subsection (2), if we were to reject this paragraph we are debating. Moreover, in many cases I do not doubt that certain of the cases allowable specifically under paragraphs (b), (c) and (d) would in fact prove allowable under paragraph (a).
In view of these facts, I will state my arguments for the acceptance of Lord Silkin's Amendment, both where they are particular to this case, and where they stand in common to reasons adducable for the adoption of paragraphs (c) and (d). In the latter case. I will not repeat them when it falls to us to consider the succeeding Amendments. I will also assume that in considering paragraph (b) we are considering the likelihood of abnormality in the terms of paragraph (b) as a reason for an abortion only in those cases where 333 an abortion is unobtainable under paragraph (a), and only, naturally, when it is desired by the parent; in other words, where a woman wishes an abortion, where a medical likelihood of abnormality in the child is demonstrable, and where there is insufficient risk of grave injury to her own mental or physical health for us to cease insisting, notwithstanding her own preference, that she should bear the child.
The paragraph that is the subject of this Amendment is the first to break ground of serious dispute between those who do not adopt the Roman Catholic position. This is so, 1 think, partly because it appears to raise the intolerable and, in fact, in principle, unanswerable question of deciding whether or not a certain type of life is worth living; partly because it certainly raises the question of whether the community has the resources, or should devote the necessary resources, to the maintenance of such lives in a certain tolerable condition when it could have had a say in preventing their origin; partly because, if we persistently ignore the wishes of the mother—and it is the one ignoble feature of this Bill that it does so persistently ignore them—as distinct from the effects on herself of the frustration of her wishes which the law already recognises, then there seems, except for one factor, to be no logical difference between the prevention of birth on these grounds of likely malformation and the putting to death of the malformed newly born for the same reason. But this excepting factor is vital, and is itself at the root of all divisions on this subject. It is: can you distinguish in principle between the extinction of life and the extinction of potential life?
On Second Reading, the right reverend Prelate the Bishop of Exeter, in a customary lucid and eloquent exposition of his views, said that the real issue of this Bill was the value we are to place upon human life; and he referred to the inherent and basic right, the right to life. I should like to observe that the Church has in its history been very much less notable for its pure adherence to this principle of the sanctity of life than it has for its infringements, many of which have been spectacular. Indeed, whenever debate could be imagined and has been held on the moral legitimacy of infringing this principle, the Church more 334 often than not has been a protagonist of infringement. It was not until 1956 that the number of Bishops voting in this House for the suspension of capital punishment preponderated over the number that voted for its retention. For less than one-fortieth of its established life the Anglican Church has opposed the State penalty of death as a legitimate instrument of social policy.
And then there are the wars. To disregard those wars, whose origins lie in dogmatic dissension, and whose vigorous prosecution and acclaimed casualties have been due to the adamancies of one Christian interpretation against another; to disregard the sectarian persecutions which required, for them to have been undertaken at all, the determination of those that adhered to one Christian doctrine to eliminate those that held to another—I can neither remember any war of the past, nor imagine any war for the future in which this country might be involved, to which the Anglican Church would withhold its patriotic encouragement, to the undebateable infringement of this absolute principle, whatever other principle, considered for the time being superior, may have been correspondingly elevated.
Now the right reverend Prelate, the Bishop of Exeter, on Second Reading—and explicitly claiming to speak for the Benches on which he sits—adumbrated the current episcopal adaptation of this principle to the subject of abortion. He described the position he once held, which he understands to be the doctrine to-day of the Roman Catholic Church—and I agree with this understanding—that this principle is relevant and uninfringeable from the date of conception, not later, not before. There seemed to be three separable points made by the right reverend Prelate the Bishop of Exeter. The first, that the foetus is not a member of the human race, in the ordinary sense of these matters, but has the potentiality of so becoming. Secondly, that the realised rights of the living mother predominate over the potential rights of the foetus. Thirdly, that in evaluating the vital interests of the mother, one should not exclude the duties of the mother towards the living members of her family. The point at which one decides that what has hitherto been only potential life becomes life must necessarily be arbitrary. 335 I personally, should be quite happy to adopt the Roman Catholic position, if it were clear that this caused no suffering. To argue from some imagined moment of potentiality is difficult, because potentialities for the creation of life undoubtedly exist and are avoided, when an opportunity for sexual intercourse is provided and is not taken.
It also seems to me that the Roman Catholics have connived in some measure at a distinction between, as it were, the unemancipated and the emancipated fœtus, by not conducting funeral services for the miscarried foetus, but conducting them in the case of stillbirths. Certainly the law has this distinction, and I should be happy to take this point of legal difference between the miscarriage and the registrable stillbirth, which I think is 28 weeks, as the non-medical criterion for determining the limiting date to a legitimately terminable pregnancy, although obviously improvements in medical knowledge and equipment might make it less comfortable to adhere to this point of distinction.
There are various arguments for disallowing an abortion on the ground of threatened deformity alone. These arguments are well covered in an impressive document on abortion prepared in 1965 for the Church Assembly Board for Social Responsibility by the Church Information Office. This document notes that acceptance of this principle could be abused into a programme of child destruction. It is argued that, certainty never being attainable (and this is a point which the right reverend Prelate has made), undeformed fœtuses will be aborted which could have been born healthy children; and it is argued that the articulate among the congenitally deformed would not endorse the view that they would have been better unborn. Broadly, for these reasons, the document concludes that this category should be disallowed.
On the other hand, the pamphlet recognises that were a major deformity, such that the fœtus could hardly be called a potential human being (as, for example, in the case of an anencephalic child), discernible in advance, their answer in that case could be different and it seems to me that they explicitly recognise the relevance to the question of the condi- 336 tions and capacity of the society for which the legislation is prepared. I am not impressed by the arguments I have mentioned for acceptance of this Amendment. It seems to me that it is an adult society's own and later responsibility to prevent a sensible law from becoming an outrageous one, and that, on the question of uncertainty, there never could be certainty in prediction, and if some possible event is undesirable then an unacceptable level of risk of its occurring will arise and preventive action will be taken on some considered balance of unavoidable sacrifice.
Moreover, since abortion is to be allowed for other reasons there is surely a barely distinguishable degree of deprivation for a fœtus that would have been born undamaged, but was deprived of life on the ground that it might have been born damaged, from the fœtus that was deprived of life on the ground that its birth would have endangered the physical or mental health of its mother. It is perhaps worth drawing the attention of the Roman Catholics to the opinion—which, I understand, though debated, is nevertheless medically respectable—that the effect of thalidomide was to prevent spontaneous abortions that would otherwise naturally have occurred; in other words (to speak for a moment metaphysically), to the possibility that it is Nature's broad intention that malformed fœtuses should never reach the point of birth.
The argument that certain, possibly the majority of, articulate malformed persons are prepared to say they are glad they were born (and this was an argument used by the noble Earl, Lord Iddesleigh, on Second Reading) seems to me to be less an argument than evidence for an argument, and I am not sure that this evidence is admissible. Because, although it is not unimaginable that another answer may have been given, no answer to the question, "Are you glad you were born?" could be given on the basis of experience of the two alternatives, and no statement can be extracted from those to whom life was denied.
If this treatment of the argument looks absurd that is also what I consider the use of this argument for any purpose to be. But the difficulty remains that it is in principle impossible—it cannot be possible—to decide whether a life of a 337 deformed person is worth living. After all, that is what generations of healthy men have philosophically debated about themselves.
The answer to the question whether abortion should be allowed in cases of likely deformity cannot be answered by a decision as to whether such lives are worth living, for we have no test by which we can arrive at an answer. It must therefore be decided by a different criterion, and because there is available an alternative criterion that must in any case be included in any permission for an abortion on these grounds, namely, the wish of the mother, and bolstered by the opinion of the noble Lord, Lord Brain, and the noble and learned Lord, Lord Denning, given on Second Reading, that abortion on these grounds would probably at this moment be legally permissible and that therefore to prohibit it statutorily now would in a certain sense be socially regressive, I shall vote for the rejection of this Amendment.
§ 6.28 p.m.
THE EARL OF LYTTON
I rise to support in general the right reverend Prelate, the Bishop of Exeter. I am one who suspects that the executions are being carried out at the present time. I think there will be legislation about this, but I wanted to say that when I went to visit one of the joint Secretaries of the B.M.A. Committee the other day in this connection he handed me a paper produced in connection with Lord Silkin's Bill, printed in the Lancet on Saturday, January 1, 1966. The writer, he said, is an authority. Of course, there are others. He pointed out that there is at present neither statute law nor case law which supports the termination of pregnancy on behalf of the unborn child.
Is not the new clause something different in nature from the old clause? I thought that the defects in children which we discussed at Second Reading had regard to their impingement on the life of the mother. By this clause we are to terminate the life of an unborn child in its interest. I think that is new. However, the writer of this paper is in favour of so doing. But he produces a number of statements which really suggest, at any rate to me, that it would be extremely unwise to pass legislation until we have heard what the medical profession is going to say.
338 In one paragraph in this very difficult paper there is a simple statement:Whenever healthy young parents have a baby"—that is, all of us, or most of us, at one time or other—they are accepting a one-in-forty risk of serious defect.He says that this risk must be counted as acceptable. I presume that that is axiomatic. If that risk is not accepted by a good many mothers, we fail to reproduce at all. He then points out at the other extreme, at the other end of the scale,If one parent manifests a dominant condition or has chromosomo mosaicism"—and other expressions of the kind—the chance of defect in the offspring is one in two, a risk which might well be regarded as unacceptable.He then goes on with a dissertation on what is probable, and surely he is able only to deal in statistics; no prediction is possible.
I think the noble Lord, Lord Stonham, on the Second Reading, said that accurate prediction in particular cases in most of these things we are considering is not possible. These figures suggest, he says. that the risk, at twice random (random is one in forty, the risk to which all of us are exposed) say, one in twenty, might generally be considered acceptable; but beyond that—and it is all a question of statistical risks—and one presumes that when the risk is one in ten, in many cases he would recommend that it should not he accepted. If ten are to go into the incinerator lest one should be severely deformed, should we not have something to say about it? Should we not know what the medical profession thinks suitable? It seems to me a terrible thing that people should be allowed to decide for themselves what to recommend. The situation is of tremendous complexity.
The writer enumerates fœtal indications for the termination of pregnancy, six under genetic, rubella, the only infection, irradiation, two sets of drugs and rhesus incompatibility, and he goes through disease after disease. Some of these cases survive for five, ten, fifteen years: it could even be twenty years. What are we to say about these comparative risks? Are we not to have these presented to us in intelligible form so that we may have 339 something to say on how many hale and hearty infants go into the incinerator? I am sure that something will come on to the Statute Book in time, and my object in rising to-night is not to stop it, but to make it efficient, or, at least, not hopelessly wide and inefficient, as would seem to be the case if we passed this clause now. That is the only part about which I should like to comment. From all the medical people I saw, it was obvious that they dearly hope we shall not pass foolish statutory legislation on a subject so complicated before even they have had time to try to sort it out.
§ BARONESS SUMMERSKILL
May I say to the noble Earl that an interdepartmental committee sat 34 years ago on this question. They sat for two years, since when the organised medical profession have done nothing about it.
I only want to answer the right reverend Prelate. He asked a specific question of the medical profession, and I think we ought to give him a specific answer. It is quite simple. The highest probability which one can arrive at is one in four. This is the highest likelihood that one has to face at the moment, in the great majority of cases, and one has to decide whether it is right to sacrifice three children in order to ensure the non-birth of one grossly deformed child. That is the highest statistical figure. On the other hand, in the case of anencephaly, where children are born with defective head and brain, grossly deformed, of the kind which the right reverend Prelate was speaking about, it is possible to diagnose them by X-ray at the 32nd week. That will present certain problems when we come to a later part of the Bill, but the patients could be dealt with under Clause 1.
I think we ought to pass this clause, because I think the pædiatrician has the right to give an opinion here. And the pædiatrician to whom I am referring is the same one to whom the noble Earl, Lord Lytton, just referred, Dr. Smills, who is consultant pediatrician at the Alderhaye Hospital, Liverpool. He says:There are fatal indications for the termination of pregnancy which may be summarised as an unacceptably high risk of serious deformity or disease. The precise indications may change with advances in medicine and the pædiatrician must be prepared 340 to advise his obstetric colleagues on the fœtal hazards in any particular situation.I think the people who have to look after these children, when they are born, have a right to say something about it, to advise the mother; and if the mother and doctor are agreed, I think that action should be taken.
§ VISCOUNT DILHORNE
May I put to the noble Lord this question, and I should like a clear answer to it. Is it not the case that in some cases it is possible to tell in advance with a reasonable degree of certainty, if not with absolute certainty, that tile child, if born, will be so abnormal that it cannot be said to have any prospect of normal or reasonable life? I am not talking about the thalidomide baby: but there may be other cases where there is the same degree of incapacity or inhumanity which cannot be foretold in advance. Does that sum up the position?
These are the anencephalic cases to which I referred. These are children one can detect only at 32 weeks, after pregnancy has gone a very long way. The child will not survive, anyway; or, if it does, it will be a log. If it is best for the mother and the child, action is obvious.
§ THE EARL OF IDDESLEIGH
I do not think there would be any objection to removing an anencephalic fœtus from the womb, and if it is necessary to enable such an abortion of anencephalic fœtus to be done, I personally should have no objection, because I should take the view—and I should, I think, be supported by the right reverend Prelate—that an anencephalic fœtus is not human.
§ 6.39 p.m.
§ LORD STONHAM
I promised at the beginning of the Committee stage that I would make no comments on questions of principle, and I do not intend to do so. But I also promised that I would try to put some facts where possible, and in view of the question which was put to my noble friend Lord Taylor by the noble and learned Viscount, Lord Dilhorne, it may be useful if I mention some information which I have. It is that the highest proportion, or the highest degree of certainty, as it were, that a child may be deformed occurs with dominant and sex-linked 341 genes. For example, a child of a person with Huntingdon's chorea has one chance in two of being affected, but one ought to add that this disease is, fortunately, so rare that only one baby in a quarter of a million births would be affected.
I also understand that with hæmophilia and a type of muscular dystrophy, the risk that the mother will have a second defective child is, again, one in two. But so far as my information goes, they are the highest proportions in particular diseases. I think the right reverend Prelate gave the risks of particular recessive disorders as one in four, which would accord with my information. I would point out to the right reverend Prelate, however, that he was wrong in saying that if there is a one-in-four chance of a child's being deformed, there is a four to one chance against its being deformed; the chances will be three to one against. I think this shows that the right reverend Prelate obviously chose the correct profession.
But the difficulty here is not, as was suggested by the right reverend Prelate the Bishop of Southwark, to make a decision or to say that a child is physically or mentally so hideously malformed that it would be better for it not to be born. That is not the decision that has to be made on this Amendment—and I am expressing no opinion one way or the other. The decision that has to be made is whether the risk that this child of a pregnant woman will be deprived of any prospect of a reasonable enjoyment of life justifies—always assuming the mothers want it; there is no compulsion about it—the risk of aborting a child who might possibly be born healthy, for the sake of terminating pregnancy in one case out of the four where the child might have no reasonable prospect of life.
I should like to put to the noble and learned Viscount, since I think he mentioned that he was largely responsible for the drafting, that in our view, in order that a closer judgment might be made, some redrafting would be helpful. The noble and learned Viscount said that his intention was to make this proposed provision much more restrictive than the one originally in the Bill. Lord Taylor, on the other hand, thought this Amendment was much wider than the 342 other. I would put it to the noble and learned Viscount that the words "likely to suffer", which appear in his Amendment, may be taken to mean more than a 50 per cent. chance, and that the paragraph as drafted implies that there has to be more than a 50 per cent. chance that the child will have no prospect of a reasonable enjoyment of life. According to my information, on that interpretation it is doubtful whether, in practice, a certificate could ever be properly given under this head by a doctor. Therefore, I would submit that that certainly could not be his intention.
§ VISCOUNT DILHORNE
The noble Lord says that a certificate could not properly be given under this head. That seems to me to depend upon whether or not, in the opinion of the doctors concerned, the conditions are satisfied. But if the doctors were of the opinion that the child, if born, would suffer from such physical or mental abnormalities as to deprive it of any prospect of reasonable enjoyment of life, then, and only then, under this particular provision would it be terminated. Surely that is much narrower than the provision which says that it can be terminated if there is a grave risk of a child being born grossly deformed, without regard to whether it has any possibility of enjoyment of life. That was in the original Bill. Surely that is much wider.
§ LORD STONHAM
I am agreeing with the noble and learned Viscount that the use of the word "likely", having regard to the medical facts, would make the interpretation of this Amendment so narrow that it would rarely apply, because, as I explained, according to my information the diseases which were most likely to produce an abnormal child were where the risk was one in two. I was trying to show that the word "likely" would appear to indicate that it had to be more than a 50 per cent. chance. Therefore, perhaps the noble and learned Viscount might feel that the words "substantial risk" would be preferable to "likely", and would indicate a less than 50 per cent. chance.
§ VISCOUNT DILHORNE
Certainly I will consider those words; but I did say what I meant, and I do not myself think that you can justify the termination of a potential human being by calculating the odds, whether it be three 343 to one or four to one, and I deliberately used the word "likely". Going back to a phrase which no doubt is familiar to the noble Lord, Lord Stonham, I think it must be an odds-on chance.
§ LORD STONHAM
It must be an odds-on chance. That is a phrase familiar to me, although all my life I have refrained from backing odds-on chances; and certainly, according to my information, there are no odds-on chances to be found in this case. As I understand it, the odds are almost always against an abnormal child being born. I am not expressing an opinion. The noble and learned Viscount is quite right in saying that the two doctors would have to make up their minds in a particular case. I suggest that they would be guided, in expressing an opinion as to whether it was likely that the child might be deformed, by the medical knowledge to which I have referred and the medical history and knowledge of whatever happened to the mother.
There is one perhaps lesser point which may be worth mentioning. I submit that it might be preferable that the effects of the physical or mental abnormalities should be described not as they are described here—deprived of any prospect of reasonable enjoyment of life",but that the child should be so affected physically and mentally as to deprive it of any reasonable prospect of living a normal life. This is a matter for consideration.
§ VISCOUNT DILHORNE
Certainly I would consider that. But, quite frankly, that is not quite the concept in my mind. I should like to make that clear. You can say that a thalidomide baby has no prospect of living a normal life. But I would never regard a thalidomide baby as coming within this definition, because you could not say in advance that the odds were on its being unable to have any prospect of reasonable enjoyment of life. I am grateful to the noble Lord for drawing attention to that. I interrupted merely to make it clear that again I had deliberately refrained from that particular formula. But of course I will consider it, as, I am sure, will the noble Lord.
§ LORD STONHAM
I am most grateful to the noble and learned Viscount. I feel that there may be some consensus of opinion on this. May I come to just one further point? The noble and learned Viscount said that if a mother was so distressed about this prospect she would probably come under paragraph (a). But what about the mother who may be convinced that she should not have the baby, but is not so distressed as to justify termination on the grounds of her own health? That is another case that would have to be considered, and it might be quite a substantial case. I hope that those factual points may have been helpful. I will make no other comments.
§ 6.50 p.m.
I am sorry to speak at so late an hour, but at the risk of differing diametrically from the two speakers to whom I most enjoy listening, the noble Lord, the Lord Soper, and the noble Baroness, Lady Summerskill, I should like to say that I warmly support this Amendment put down by the right reverend Prelate, the Bishop of Exeter. If the Bill goes through, I feel for two reasons that it should go through with this Amendment, one on agnostic grounds and one on Christian grounds. On agnostic grounds the case was clearly put by my noble friend Lord Amulree, who said that we do not know enough about what children are going to be like. I would go further and say that we do not know enough about what human beings are for, whether their purpose in the universe is to lead a "reasonably enjoyable life", or, in fact, what a reasonably enjoyable life is.
The noble Lord, Lord Soper, said that he could not understand the suggestion that a fætus could have a right to live, and he courageously used the words "an unborn child", because people have more sympathy with that. The noble Baroness, Lady Summerskill, said something of the same kind on Second Reading, without going quite so far. She thought that its right to live, compared with that of the mother, was negligible. That is where my agnosticism comes in. I think that it was Dorothy Parker who, when she was told that President Coolidge was dead, said "How do they know?" That is what I am inclined to ask when I am told that a fætus is not a person. I know 345 that in law "person" is a tiresome word; it can mean "a corporation", and so on; but to the ordinary layman the definition would be "the living body of a human being"; and if a human fætus is not the living body of a human being I should like to know what it is. If it is not living, why is it necessary to kill it? If it is not a body, can you perform an abortion on it? And if it is not the body of a human being what is it of?
The right reverend Prelate, the Bishop of Exeter, in his excellent speech on Second Reading said one thing which I could not quite follow. He clearly stated the view which, failing anything to the contrary to convince me, I believe: that from the moment of conception it is a human being. But he said that it is also possible, and orthodox, to regard it as a "potential human being". I am in Lord Soper's position, in that I do not quite know what that means. If you say that somebody is a potential violinist you mean that he may become a violinist, but may take up the bassoon; or he may not become a musician at all. On the other hand, a fætus, if a human fætus, does not have a choice of becoming either an ostrich or a kangaroo.
There are two senses in which the word "potential" can be construed. In one sense every living person in this country is a potential Member of your Lordships' House, in that nobody knows that he or she or they (in the case of Siamese twins) may not be given a peerage. The other sense in which a man is a potential Member of your Lordships' House is where he is the eldest son of a hereditary Peer. As long as hereditary Peers exist in your Lordships' House, and as long as your Lordships' House goes on, failing any attempt to deprive it of that right by force, such a person would he a potential Peer. Personally I am not convinced that one is any more right or more wrong to kill a fætus than to kill a grown being.
I do not want to go on at length but I understand that there are scientific grounds for rejecting the medieval idea that the soul comes in only after twenty days. At that time it was thought to be a vegetable for the first ten days, because that is what the embryo looks like, seen through the naked eye, without a microscope. After 20 days it was considered to be an animal and—the noble Baroness, 346 will think this a typically mediæval ideal—that the female soul came only after 80 days. I believe that was not a piece of anti-feminism, but if one looks at it without a microscope one can see the organs which differentiate the sex embryo after 80 days. The assumption was that before that they were all male. What I am trying to suggest is that we do not know enough about what life is for to decide whether we are entitled to kill a fœtus on one or other ground, let alone to kill it for its own good. One would like it to be consulted; unfortunately, of course it cannot be consulted, but I feel that somebody in this House should give its point of view.
I remember an epitaph by the late Professor Housman about young men who died in the war, which went something like this:We fought and died because we did not choose to live;To live, and shame the land from which we sprung.Life, to be sure is, nothing much to lose;But young men think it is—and we were young.A fœtus, if it could write its own epitaph, might write on these lines:We died unborn, because you did not choose When the time came, to let us pass the portal.Life, to be sure, is nothing much to lose;But mortals think it is; and we were mortal.Those are some of my agnostic grounds for supporting the Bishop of Exeter's Amendment.
On Christian grounds I will only ask the noble Lord, Lord Soper, whether, when he says that no unborn child has a right to live, he would include in that definition Christ, who at one time was certainly an unborn child. It is not a frivolous question and I think not blasphemous; and I believe it is important. One of the things I am agnostic about is the judgment of even the best of people with great experience. Unlike the noble Lord, Lord Soper, I am not responsible for fifteen illegitimate girls—
I beg the noble Lord's pardon. When there has been a large consensus of opinion among responsible people as to whether or not a man is fit to live, I do not believe the answer has always been right, even when 347 it has been nearly unanimous. I can only think in history of one opinion that comes to mind which was as unanimous as possible. It occurred a long time ago when the representatives of the Occupying Power, of what would be called the Quisling Government, of the patriotic partisans, of what was the equivalent of the Established Church, and even of His very few supporters, all agreed that this Man was not fit to live. I am referring, of course, to Pilate, Herod, Barabbas, Caiaphas and St. Peter. They may have been right to believe that, although St. Peter afterwards thought not. I should find it difficult to believe that that was right and to continue to be a Christian. On those two grounds I support this Amendment, but I may have more to say later.
§ LORD SOPER
I only want to say that I have been asked a direct question and perhaps I may make a brief reply. I do not believe in the idea of life as instant, in the same sense as we have instant coffee. I believe that any attempt to deal with this problem in static terms defeats its own ends, and the very words we use, as the linguistic philosophers have persuaded us. are irrelevant and finally are obstructive to true thought. I should have thought that the answer in general terms to the question that was asked of me was, that when you are thinking of life you are thinking of something which is imprecise. The only sort of life that I, as a professing Christian, would believe to be sacred is that which comes in the teaching of Tennant and Ward—self-conscious life. When life has acquired self-consciousness, then I believe it has a sanctity.
I am very grateful to the noble Lord for his remarks. I will not comment on them, but I thoroughly appreciate them.
§ LORD PARKER OF WADDINGTON
May I add just a word? Listening to this debate, I get the feeling that most of your Lordships—indeed, all of your Lordships—would welcome its being a ground for abortion if it could certainly be said that, if born, the child either would suffer from such physical or mental abnormalities as would deprive it of any prospect of reasonable enjoyment of life, or, as originally drafted, would be 348born grossly deformed and with other serious physical or mental abnormality".Indeed, I go further and think that most of your Lordships would approve of abortion if it could be said, although not with certainty, with reasonable certainty.
What it really comes to, in my mind, is: what is meant here by "likely"? If "likely" really means more probable than not, then let us say so and decide whether people will agree on that basis. But if it means quite likely, one in four as we have been told, then I think most of your Lordships—certainly, I myself—would violently oppose this Amendment. Therefore, my first point is: let us say what we mean before we vote on it.
The other point is this. I do not think that any of your Lordships would wish to narrow the scope of the grounds for abortion as interpreted by the judges at the moment. We do not want to narrow the scope if anything we want to be more liberal. I think myself that the judges interpret the law at the moment in accordance with paragraph (a), and that paragraph (b) is very apt to lead to a narrowing of the scope.
The medical practitioner will say to himself, "I am dealing now with a case where there is some risk "—let us put it like that—" of the child, if born, being grossly deformed. That is the subject matter with which I am dealing. I can only certify with regard to such a matter in relation to certain factors." Therefore, he may never come to consider the matter as I think he should under paragraph (a). I think the difficulty can be cured by a matter of words. It may be a question of saying:Provided that such two registered medical practitioners certify in writing that the termination is necessary on one or more of the following grounds….At the moment they look to be exclusive grounds, and I think there is a real danger that the clause would he interpreted in such a way as to be less liberal than the interpretation of the judges at the moment. I think that those two matters ought to be cleared up.
§ 7.4 p.m.
§ LORD COLERAINE
I am disposed, myself, to support the right reverend Prelate if he pushes his Amendment to a Division and I would do so, I think, for one reason, which is this. It seems to me that it is impossible for a third party 349 to judge, either of the usefulness of a human life or of the capacity for enjoyment of a human being. I do not myself believe that two doctors, however eminent, can, except in a very limited number of cases, say that if the fœtus has such-and-such a disease that human being will not enjoy life. What would have happened, for example, if Helen Keller's condition could have been identified when she was a fœtus in the womb? Would the two doctors have said, "This fœtus is going to be born deaf, dumb and blind. There is no reasonable possibility of enjoyment of life. Therefore, this life must be terminated"? If this Bill had been an Act in the United States, and if this had happened, I think a terrible thing would have been done.
The noble Lord, Lord Stonham, dropped a remark, I think, about the hæmophiliac, saying that there was one chance in three of identifying the hæmophiliac. But is it meant that the existence as a fœtus of a hæmophiliac would be terminated under this Bill?
§ LORD STONHAM
Obviously, the mother or both parents would be known to be hæmophiliacs. But what I said was that if the mother was a hemophiliac, then out of two births it was likely that one child would be deformed.
§ LORD COLERAINE
Yes, but what I am trying to get at is whether on that basis it would be possible, under this Bill, to terminate the existence of a putative hæmophiliac, because, again, I think that would be very wrong. I have only known one hæmophtliac and he lived well into the thirties. He lived a life which he enjoyed himself, and which gave much enjoyment to others, and I am fearful that under Clause 1, as the noble Lord, Lord Silkin, has moved the Amendment, such an existence might have been terminated.
§ LORD SILKIN
I think that the Committee is probably now ready to make up its mind as to whether or not it wants paragraph (b). The first thing I would say is that, in accordance with the way in which. I dealt with this Bill on Second Reading, I have listened to the various criticisms which have been made about this clause. I think, apart from the general principle to which the right reverend Prelate has made reference— 350 the question of taking life—there are two objections to this clause as it stands.
One is the question of the amount of risk of a child being born defective, and may I say to the noble and learned Viscount that I did not understand that the risk was to be more than a substantial risk. When I accepted his wording, I was under the impression that one in three or one in four would have been a risk sufficient to justify an abortion. But in view of the doubt, I think that some clearer language ought to be used.
The other objection is the question of enjoyment of life. That seems to have given a number of noble Lords some doubts about this clause. I quite agree with the noble Lord, Lord Coleraine. How can two doctors say that a particular child, if born, would not enjoy life because it was very severely handicapped? He referred to the case of Helen Keller, and I must confess that the case of Helen Keller caused me very grave doubt, too. I do not know whether she enjoyed life or not, but certainly she was a very considerable figure and made a great impression on life. But there has been only one Helen Keller.
Noble Lords have referred to their own experience. I was for a number of years chairman of a hospital which dealt with cases of the kind I have in mind. There were children who were blind, deaf and dumb, and sometimes without legs and arms. It was difficult to conceive that such children could lead a normal life, or that their lives were worth living. It is true that a good deal of love and affection was bestowed upon them, but I could not help feeling sometimes that that love and affection could have been better bestowed upon other children who could have appreciated it more—and among most people there is not an infinite capacity for love and affection. If it is bestowed on some, then it is generally at the expense of others. Usually, we are told, the mother bestows her love and affection on the particular child who is most afflicted, but more often than not the other children suffer to a certain extent.
I think that the provision in paragraph (b) will probably have to be reworded. We know what we want to say, but I am not certain about the word "risk"; and one ought to be able to find a clearer 351 criterion than merely "enjoyment of life".
§ LORD PARKER OF WADDINGTON
If the noble Lord will forgive my interrupting him, may I say, on the question of rewording, that I have prominently in my mind whether he intends "likely" to mean one in three or one in four; whether he means to refer to a substantial risk—and "substantial" is something more than 50 per cent. in certain circumstances—whether he really means "more probable than not" or "almost certain".
§ LORD SILKIN
I certainly do not mean "more probable than not". I think that is too difficult a criterion. It would be a substantial, but not a majority, risk.
The noble and learned Viscount spoke about the difficulty of reconciling paragraph (b) with paragraph (a). I think his point could be met in the way he suggests. One would be very willing to amend—it would mean amending the proviso—to meet the point that it should be on one or more of the grounds. If the Committee could accept the general doctrine—I know there might be some difference of opinion whether the doctors must be satisfied that the chances of a child being born defective are greater than otherwise; they must be satisfied about that, but, subject to that—I think the clause could be generally adapted to meet the views of the Committee as a whole. After all, the safeguarding point is that if the two doctors are not able to certify, if they feel any doubt about it, they are not obliged to certify. They can say, "We are not satisfied that it is likely that the child will be born in this way"; and, unless they can grant an abortion on some other ground, then there will be no abortion, and that will be the end of it, except that possibly such a person may he driven to a back-street abortionist, as they are now in many cases.
But the real objection to this provision in paragraph (b) is not that at all. I cannot help thinking that the right reverend Prelate put those matters forward as a make-weight, because, even if there were 100 per cent. certainty, he is not at all sure that he would agree to the inclusion of this paragraph. If doctors could say, as they might well say, that there was a very substantial risk, at any 352 rate, that this would happen, he would still not agree with paragraph (b).
THE LORD BISHOP OF EXETER
I am not sure. Since I have been studying some of the work of a pædiatrician, I am not at all sure that, if there were a 100 per cent. certainty of diagnosis in certain cases, I might not be with him.
§ LORD SILKIN
I am rather surprised, because I thought the right reverend Prelate's real objection to this provision was that it was taking life, and that it was taking life not in the interest of the mother—she comes under paragraph (a). This is taking life in the interests of the child, and I thought that that was something to which he strongly objected—and he would presumably object to it under paragraph (c), as he said, and under paragraph (d). I cannot think that there is any difference in principle between paragraphs (b), (c) and (d). There may be different circumstances, but, in principle, if you can accept the fact that it is not necessarily in the interests of the mother but in the interests of the child that there shall be an abortion, then it is considerably widening the doctrine for which the right reverend Prelate has been standing.
THE LORD BISHOP OF EXETER
Indeed, I am aware of that. It does in fact introduce a new principle. I am by no means certain that I do accept it, although my sentimentality is tempted to accept it. But I should like to have much further consultation with the medical profession to find out precisely how this new principle can be defined.
§ LORD SILKIN
The right reverend Prelate said that this is not a new principle, but it is a new principle. His principle was: if it is a case of the mother against the child, then, reluctantly, the child must be sacrificed. He is now going beyond that and saying, "If there is a 100 per cent. chance". He must really face it, that he is sacrificing his principle.
THE LORD BISHOP OF EXETER
Then I shall have to withdraw what I have just said and stick to my principles.
§ LORD SILKIN
The right reverend Prelate is going to do that anyway if it comes to a vote, but he will be doing it, if I may respectfully say so, under the guise of principle, really using the other factors as additional argument—that is, as to the risk.
353 I know that my noble friend has put forward figures as to the risks in particular diseases, but he has not referred to the medical histories, and the medical histories of many cases are known. Suppose a mother has already given birth to three children who might be said to come within the category of paragraph (b), and suppose she is pregnant and about to give birth to a fourth. There is no ground for granting an abortion under paragraph (a). I admit that this is a highly problematical case, and that there are few such cases that arise. Should these doctors grant an abortion under paragraph (b)? They know that three children have already been born who are abnormal and afflicted. They hear the family history and hear that there is an aunt who is in the same condition. Surely, the chances there are more than one in three or one in four. Surely a doctor could say, almost with certainty, that the next child would be in the same condition as the three who have already been born.
Moreover, this Bill when it becomes law will not be an Act that will stand for a day or two; it will probably remain in force without amendment for many years. Within that time one hopes that medical research will enable us to predict with much greater certainty the quality and character of a child that is to be born. Whereas to-day it cannot be said, until in some cases pregnancy is far advanced, what will be the condition of the child, surely one can look forward to the time when it will be possible to state it with reasonable assurance. I hope that this clause will he readily available for such a time.
I trust, therefore, that the Committee will be prepared to allow this clause to go through, with the assurance that it will be amended. We are going to get the help of the Parliamentary draftsman and I am prepared to consult with the noble and learned Viscount, Lord Dilhorne, and with anybody else who is interested, to ensure that we get a provision which will satisfy the whole House. I hope, therefore, that the Committee will be ready to agree to the clause as it stands.
§ VISCOUNT DILHORNE
I should like to say a word or two, in view of what the noble Lord has said. I think we really cannot leave it to Parliamentary Counsel to resolve a difference of interpretation; though he can draft and put 354 our ideas into proper Parliamentary language. I must say I never thought that if the odds are regarded as four to one against you, you are considered to have a likely chance of winning. I did mean that "likely". I drafted those words as the Committee know. I meant that the probability was that the result would he that the child, if horn, would be in this particular condition. "More probably than not," was the phrase used by the noble Lord, Lord Parker of Waddington. I should he content with that. I think the right reverend Prelate interpreted "likely" in the other way, as if it were no more than three to one or four to one against.
§ VISCOUNT DILHORNE
I am not seeking to take any responsibility away from the noble Lord. It is unfortunate that apparently, in the best of friendly discussions, we interpreted this differently. But it is because of that difference of interpretation that it is not really very easy just to say that we should let it go and that we should leave it to Parliamentary Counsel. I am in favour of accepting Parliamentary Counsel's help; but I think we ought to see whether we can reach a decision on what the whole House wants to achieve. I should hope, if the interpretataion was "more probable than not", that the right reverend Prelate might, more probably than not, withdraw his Amendment. If that is not so, I would make it clear that I will vote against his Amendment, on the ground that my interpretation of the world "likely" in this context is that it is "more likely to happen than not"; and I hope it will be more likely to happen than not that we shall defeat the Amendment.
THE LORD BISHOP OF EXETER
I am sorry; but I find here a real matter of principle. I cannot withdraw my Amendment and I think I must force the Committee to a Division. I had hoped 355 that the noble and learned Viscount, Lord Dilhorne, would have asked the noble Lord, Lord Silkin, to withdraw whoever's Amendment it is; because it is clear that very few people have read into the Amendment what the noble and learned Viscount, Lord Dilhorne, has intended it to be. If the Amendment does mean what the noble and learned Viscount intends it
§ Resolved in the negative, and Amendment to Amendment disagreed to accordingly.
§ Moved, That the House do now resume.—(Lord Silkin.)
§ On Question, Motion agreed to, and House resumed accordingly.