§ 3.21 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Silkin.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Debate resumed on Lord Silkin's Amendment to leave out Clause 1 and substitute a new clause, the proposed new clause having been amended on the first day of Committee to read as follows:
§ Medical termination of pregnancy
§ ".Subject to the provisions of this Act it shall be lawful for a registered medical practitioner to terminate a pregnancy:
§ Provided that two registered medical practitioners, 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, 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)."
§ VISCOUNT DILHORNE moved, as an Amendment to the Amendment, to leave out paragraph (c) of the proposed new clause. The noble and learned Viscount said: We now resume consideration of this Bill, which I, for one, regard as very important. I am grateful to the right reverend Prelate the Bishop of Exeter for putting his name to the Amendment which I am now moving. With recollections of our debates on another Bill last Session, some of your Lordships may think that this is an unusual combination, but I am glad that for once—and I hope that it will not be a unique occasion—the right reverend Prelate and I are on the same side. The noble Earl, Lord Lytton, has also added his name to the Amendment, and I hope the weight which that gives will facilitate acceptance of this Amendment.
The grounds contained in paragraphs (a) and (b) of the proposed new Clause 1 both relate to health. In the one case it is the health of the mother and in the other of the child, but paragraph (c) seeks to apply an entirely different criterion. We are not concerned here with the health of the mother, either before, at or after the birth of the child; we are not concerned here with whether or not the child when born, will have such physical or mental incapacity as to deprive it of any prospect of reasonable enjoyment of life. Paragraph (c) can be required only where there is no serious risk to the health of the mother and where it cannot be said that there is no prospect of reasonable enjoyment of life by the child, and we are asked by the noble Lord, Lord Silk in to agree that, none the less, it shall be lawful to destroy a potential human life, on the ground that the mother
is or will be physically or mentally inadequate to be the mother of a child…
This provision was not in the original Bill, and we have had no explanation from the noble Lord, in moving this new clause, of what this form of words is intended to cover. Therefore we have to seek to interpret the words in the paragraph.
§ What exactly is meant by "inadequate to be the mother"? If it is intended to mean—and the phrase is capable of this meaning—that she is not, or will not be, a good mother, are two doctors, no matter how high in the positions they hold, the right persons to judge of this? No 493 Question of health is involved, only adequacy. But even if it were right to prescribe that two doctors should judge of this, surely it cannot be right to destroy a potential life on the ground that it is thought the mother is not, or will not be, a good mother. Surely the right course is not to terminate the pregnancy but to seek to remedy the inadequacy.
§ I have a slight suspicion that in drafting this provision the noble Lord, Lord Silkin, has been affected by some of the current jargon in use among the younger generation. They describe things as "fab", and people as "squares", "not switched on" or "not with it", and I wonder whether they do not also say sometimes that so-and-so is "inadequate"? As my two children have gone back to school I have been unable to get confirmation of this point of view, but I hope that the noble Lord, Lord Conesford, will be able to give me some assistance.
If it is thought that the mother will be inadequate our social services should help to remedy that state of affairs. If the pregnant woman does not know enough to be able to look after the child properly, surely she should be helped and taught; and I would emphasize that this paragraph is directed solely to consideration of the mother's adequacy. As my noble friend Lord Grenfell said last Tuesday:
We want to be quite clear-cut in what we intend to do, and any vagueness should he cut out of the Bill."—[OFFICIAL REPORT, Vol. 272 (No. 28), col. 330; 1/2/66.]
This provision is very vague and, if enacted, would, I fear, open the door to abortion far wider than I, for one, should like to see. This is indeed a controversial proposal, and the more controversial proposals there are in this Bill the less likely it is to reach the Statute Book, and the greater are the opportunities for those (and I think they are in the minority) who are opposed to any legislation on this subject, to obstruct its passage.
§ I hope that, on reflection, the noble Lord, Lord Silkin, will accept this Amendment. He may take the view that the Bill would be better with this provision in it, but I hope he will not allow what he considers to be the better to be the enemy of the good. But if he does not accept this Amendment then, since I think this question is of such importance, I shall 494 have no alternative but to press the matter to a Division. I beg to move.
Amendment to Amendment moved—
Leave out paragraph (c).—(Viscount Dilhorne).
THE LORD BISHOP OF EXETER
It is indeed a most agreeable, if surprising, experience to find myself in agreement with the noble and learned Viscount. But certainly on this matter I am entirely in agreement with him, and I also share his total ignorance of the meaning and purpose of this particular paragraph. I cannot think what reason could have persuaded the noble Lord, Lord Silkin, to put it down. It seems to me to be an extraordinary assumption of arrogance that I, or any one of your Lordships, or any two medical practitioners, should determine whether a woman is or is not "adequate" to be the mother of a child. There may, of course, be certain extreme cases where it is quite obvious to any medical man, or indeed to a man of common sense, that a particular woman, by reason of her disabilities or of the size of her family, could not possibly cope with the upbringing of this child and her other children without serious impairment of her mental and physical health; but paragraph (a) deals perfectly adequately with such a case.
Once one goes beyond the ground of a severe threat to the physical and mental health of the mother, as I was trying to explain to your Lordships on Tuesday, one runs into innumerable dangers, and this is but further evidence of that fact. I am sure we all know that there may be a woman whose mental oddities some of us might think would make her inadequate, but it is also within our experience that some women of that type can make, and do make, extremely affectionate mothers, even though their efficiency may not be very great. And in the upbringing of a child affection is far more important than mere efficiency. You may bring up a child with all the luxury of a nursery in Mayfair, while the mother spends most of her time in Bermuda, but that child is less well brought up than the child of a mentally handicapped woman who bestows upon the child the utmost affection. I beg to support the noble and learned Viscount.
§ LORD AMULREE
I would support in one word what the noble and learned 495 Viscount and the right reverend Prelate have said, because it seems to me that the people whom this clause was meant to cover are far more properly dealt with in paragraph (a) where one has the two doctors consulting and probably somebody from the Social Welfare Department is concerned whose opinion should be asked, and they will be able to give an opinion about the mother's health. At the present time I can see no point at all in this paragraph, and if we do go to a Division I shall certainly follow the noble and learned Viscount.
§ LORD SILKIN
I am sorry the noble Lord has already made up his mind before hearing the case for the paragraph. I should like to put the case. I recognise that I have to face a very formidable combination, even if it is unusual. The noble and learned Viscount, I thought, based most of his case against the provision on the vagueness of the language and the use of the word "inadequate", and so on. I would assure him that in drafting this I have not been in consultation with the younger generation; I do not know the vocabulary and I have not been in any way affected by it.
Perhaps the best thing I can do is to explain to the Committee the kind of case I had in mind where the prospective mother would be inadequate to bring up the child properly. There are women who suffer from illnesses which, while they do not affect the pregnancy itself and therefore are not covered by paragraph (a), will nevertheless make her less able to bear the burdens of motherhood. Epilepsy is one case; a woman can be an epileptic and nevertheless be otherwise quite capable physically and mentally of bearing a child. There is the case of a woman who is in prison, serving a long term commencing between the beginning of the pregnancy and the time at which she will give birth. Obviously that woman is inadequate to be a mother of a child. There is the persistent offender, or the shoplifter, and there is the mother who has in the past been found guilty of neglecting or ill-treatment of her existing children. These are some of the cases I have in mind. There is the drug taker or the alcoholic. I am sure the right reverend Prelate would not suggest that such a mother is a fit person 496 to be in charge of children. There is the woman who already has a large family, perhaps six or seven children.
I should like to read to your Lordships a letter I had this morning from a woman who wrote to me about her own circumstances. I will not read the whole letter but a number of extracts from it:I am one of those unfortunate women who am fighting to have a legal abortion, not because I am selfish but I have a very hard life with trying to bring up six children aged from 18 down to 7. I have a husband who is unable to keep a job more than a few days. He is a nervous case. I had a nervous breakdown four years ago through the worry of not being able to make ends meet.She goes on to say that she has recovered, and continues:I am happiest at work in a maternity hospital, but at Christmas I fell for another child. The surgeon who is in charge of my case was very cross with me when I suggested an abortion and he said that if he were to go ahead he would find himself in the Old Bailey and struck off.That is just a case at random, but no one can suggest that that woman would make a good mother capable of bringing up children, when she has to go out to work—I do not know what she is doing, whether she is scrubbing in a hospital—and has to come home at the end of a hard day's work, having left the children to their own resources during that time, and then do her duty as a mother and a wife.
There is the question of the woman who loses her husband during pregnancy and has to go out to work, and obviously cannot bear the strain of doing a full day's work and looking after a child. There is the woman whose husband is a drunkard or a ne'er-do-well, or is in prison serving a long term, and she has to go to work. These are the cases I have in mind. There is no question whether a woman will have the necessary affection for her child; it is a question of whether she is really able to do her duty as a mother and bring up the child as it should be brought up. We have said a great deal about the health of the mother, and the right reverend Prelate regards that as the only consideration to be taken into account. I understand his views. I do not agree with them. And already this House has gone a stage further in accepting the provision 497 Concerning the child who is deformed, incapable of enjoying normal life.
This is another case, and I would submit that this is a question not only where the mother's and the child's interests are involved, but where those of the community are involved as well. I think we owe it to ourselves as a community to ensure that the children who are brought into existence are given a fair chance in life and are capable of being properly brought up, and to start off with some of the terrible handicaps to which I have referred is not really giving a fair chance either to the child or to the community.
I was reading the Report of the Inter-Departmental Committee which sat in 1939. Their views were to some extent colored at that time by the fact that it appeared that the population of this country was declining. To-day there is no such problem; in fact the problem is the other way. But I am not asking the Committee to consider the question on that ground. I do not think it would be right, because it may well be that in future there might be a decline once more. But the fact is that these were considerations certainly in the minds of the Committee, and they were considering the interests of the community as well as the interests of the mother and of the child.
The noble and learned Viscount pointed out, and I think with force, that it is unfair—and the right reverend Prelate said it was arrogant—to expect doctors to pass a judgment on this kind of thing. I respectfully disagree. I believe that they are in a position to express a view. After all, in the first place, if they are not satisfied they are under no obligation to carry out an abortion: there is no compulsion about it. Then, secondly, they are entitled to take advice. They can get the advice of a social worker; indeed, I greatly hope that they will do so in doubtful cases of this kind. If, on the report of a social worker, and in the knowledge of the conditions into which a child will be brought, they take the view that an abortion is justified, then I think it is a proper subject for inclusion in this Bill.
I hope that your Lordships will regard this provision dispassionately. I admit 498 that it is an extension of what is at present the Case Law on abortion, but the purpose of this Bill is to extend the opportunity of an abortion to any proper case. I should like this Bill to legislate for a long time ahead, and if, in the circumstances of each case, an abortion is desirable, then I do not think we should be tied to the fact that under present Case Law its legality is limited to questions of the woman's health. For all these reasons, I hope that your Lordships will see your way to accept this new clause as is stands, and will not accept the Amendment to omit paragraph (c).
§ 3.42 p.m.
§ BARONESS SUMMERSKILL
I do not believe that I shall be able to change the mind of the right reverend Prelate this time. He is shaking his head before he has even heard me; so I am condemned on prejudice alone.
THE LORD BISHOP OF EXETER
Perhaps I may say that I have heard the noble Baroness speak on these subjects before, and I know what she is going to say.
§ BARONESS SUMMERSKILL
The right reverend Prelate has never in his life heard me speak on this Amendment before. I would ask him perhaps to give me the same kind of hearing as I always give him. Of course we approach this question from entirely different points of view. I listened to him the other day and he said something to this effect, "I cannot see how the destruction of a potential human being can be justified on any grounds when the woman can, without risk to herself, bear it". The difference between us is the difference between the meaning we attach to the word "destruction". I believe that deliberately to allow a being to be born when it will destroy the chances of human fulfillment and happiness of its mother, is morally wrong; and I feel morally as strongly for my point of view as the right reverend Prelate does for his.
The mother is already a mature individual who, despite her physical or mental inadequacies, is responsible for caring for her husband, for any children already born and for her home. My noble friend has mentioned that she might be an epileptic. As I listened to him, it occurred to me that she might be an 499 arthritic, with rheumatoid arthritis—not uncommon in a young woman. Or she might be a diabetic. Or she might have some form of neurosis. None of these is a "killer" disease. None of them would make her eligible for an abortion under paragraph (a). But they are conditions which make the life of an individual wearisome and burdensome: the knowledge that you have a chronic illness of some kind, something that you have got to learn to live with, and a condition which is understood by your relatives and friends who try to help you.
By denying such a woman some relief under paragraph (c) it is, in my opinion, proposed deliberately to add to her burdens, while other agencies, which the noble Lord on the other side mentioned, are trying to help her. He said, "What are the welfare agencies doing?" Precisely. The welfare agencies, I know, are trying to relieve this young woman, for the sake of her husband and the existing children. They are all trying to lighten her burdens. Then, unfortunately, another pregnancy comes along, and these welfare agencies have no way in which to help her: they rely upon the doctors.
On the question of mental inadequacy I can say also that there is an abundance of statistics which show that by their progeny high-grade mental defectives are responsible for some of our problem families. As the right reverend Prelate says, these are women with plenty of affection. But the degree of one's affection for one's children is not necessarily related to one's intelligence quotient at all. It has been said that some of these women are highly affectionate. Nevertheless, they establish problem families which, time after time, have to be approached by the welfare agencies; and they can mark children even into the third and fourth generation. There are statistics to prove this.
The other day some noble Lords spoke about the disabilities of Helen Keller. She was blind, deaf and dumb. They said that she enjoyed life. I never had the privilege of meeting this courageous woman, but there is a great difference between courage and happiness. I do know, however, that she was born into a well-to-do family, and had the opportunities of constant help and companion ship.
§ LORD SOMERS
If I may interrupt the noble Baroness for one moment, I would remind her that Helen Keller was not born blind and deaf; she became so at an early age.
§ BARONESS SUMMERSKILL
I am grateful to the noble Lord. The argument the other day was not contradicted, and I was under the impression that these disabilities were congenital. The argument the other day in a debate of this kind was that this woman was born with these disabilities. However, let us think of a woman with certain of these disabilities, particularly blindness, who is poor, in a poor home, and who already has two children. If you take out paragraph (c) this blind woman is still to continue to bear children. In a slum home (which is what we are talking about), in a home with two or three rooms, with children already, is she to be denied relief? Should we not show compassion and charity for the chronically disabled woman who becomes pregnant and survives childbirth, but whose life becomes more intolerable with the need to care for another child?
If, this afternoon, paragraph (c) is deleted, and no relief within the law is given to these women, will they accept this merciless decision? Of course not! These are precisely the women who will continue to go to the back-street abortionist. It is the back-street abortionist we have been asked during this debate to help to eliminate from our society. Indeed, if paragraph (c) is deleted this afternoon, no great radical change will have been made in our abortion laws by the passage of this Bill.
§ 3.49 p.m.
§ LORD ILFORD
I am bound to say that I find myself in complete agreement with the point of view that has been put by my noble and learned friend. It seems to me that what is essential, particularly in a Bill of this nature, is the maximum precision of language. In this Amendment, the language which is used seems to me to be completely lacking in precision. One doctor may take a certain view of what is inadequacy in the mother, and another doctor may take an altogether different view of what is inadequate. That is not a satisfactory state of affairs for a Bill which aims at making these fundamental changes.
501 I listened carefully, as I always do, to the noble Lord, Lord Silkin. It seemed to me that all the cases to which the noble Lord referred were cases which would have been covered by paragraph (c) of the Bill as originally drafted. The possible exception is the case of the woman who is in prison or whose husband is in prison. If she herself were in prison, I should have thought there might be a great deal to be said for the view that her social conditions made her inadequate as a mother. The case of a woman whose husband is in prison is perhaps rather different.
I suggest to the noble Lord, Lord Silkin, that he might agree to take this clause back and try to frame it in language of greater precision than is to be found in the Amendment. I am quite sure that most of the cases to which both he and the noble Baroness, Lady Summerskill, referred are cases with which this Bill ought to deal; many are cases which the Bill would have dealt with in its original form. The case which the noble Baroness referred to was the case where the health of the mother precluded her from being a satisfactory mother. That case would have been covered by paragraph (c) of the Bill as originally drafted. In these circumstances, I ask the noble Lord to take hack the clause and endeavor to frame it in more precise language than he has hitherto found it possible to do.
§ LORD REAY
I think this paragraph is the most important paragraph of the Bill, and for two reasons. In the first place, because it raises most directly the question of eligibility for abortion for those cases that do not depend on an estimate of the health of the mother but on an estimate of the life that the child will be born to, on the effect its birth and its existence will have on its family and on its mother, or on itself and the mother alone if there is no family. And, without concentrating on the single question of whether one life is worth living, in principle it admits as relevant determining factors of the propriety of an abortion the consideration of social and economic circumstances. Secondly, because by admitting, at any rate by implication, these considerations, this paragraph (in a rather curiously ordered conjunction with Amendment No. 11) ap- 502 Proaches nearest to the real reasons why the majority of abortions are desired.
How many abortions are practiced a year and how they therefore would break down by category of motive is anyone's guess, and I think that there is something alarming in the fact that few estimates are made to anything more precise than the nearest 50,000. But, on the basis of available evidence, it seems that about 80 per cent. of those who have had an abortion are married women whose concern is the strain that an additional birth will impose on themselves and their family. These women do not go to a practitioner, whether authorized or unauthorized, because their motive for abortion is their alarm at the threat to their own physical or mental health. They go to a practitioner for an abortion for reasons, respectable or less respectable, that they do not want their child. This clause has therefore the overwhelming merit of inviting the pregnant woman to an argument over the real reasons as to why she wishes an abortion.
If the legislative imagination has been stimulated to a reconsideration of the law on abortion by an appreciation of the suffering caused and the dangerous illegalities committed as a result either of the law's vagueness or its rigidity, the Legislature will hardly have served its ameliorative intention if it produces a Bill that does not in practice reduce quantitatively this suffering and, specifically, reduce the resort by frightened, desperate, and unwelcome women to illegal practitioners or to incompetent and often superstitious attempts upon themselves.
On Second Reading it appeared that the noble Earl, Lord Iddesleigh, was arguing that there could be no such thing as an unwanted child. This is a metaphysical claim. It may be untrue to say that there are no unwanted children: it cannot be meaningful to argue that there cannot be. It is, for instance, becoming painfully and belatedly clear that certain societies do not want additional children. In our society it must be relevant to investigate the capacities and demands of adoption societies. It is, alas!, also becoming reasonable to believe that children who are born unwanted into families who nevertheless continue to be responsible for their care (if either of the words "responsibility" or "care" 503 Can be properly used) can arrive into a broken home or can break it by their arrival, or can be completely deprived of necessary affection; and that children from such homes can be the maladjusted and the delinquents of their own generation and the inadequate parents of the next. If such a history is a plausible one, then I doubt if society has taken a responsible decision in refusing wanted abortions that might have made such a history less probable or less frequent.
There is a familiar pattern of deterioration in the woman who applies for an abortion. A woman who does so to-day is unlikely to be an untroubled person. She is probably humiliated, indecisive, exceedingly anxious, perhaps unstable, unquestionably very uncertain as to what is safe for her, within her means, right for her, permitted to her. She is probably courageous—and certainly she is unusual if she makes any approach to the medical profession at all. The effect of her initial approach is unlikely to alleviate much of her anxiety—her reference to another practitioner, delay for an investigation of the honesty of her claims, an interim uncertainty by doctors and laymen alike of the precise nature of the changes in the law.
And I think it is important to emphasise that there will be an interim period before a recognition of a more permissive law—if that is what we are to receive—and the evident appearance of a more sympathetic attitude in society will stimulate women who want an abortion to less despair and to more confidence in the qualified medical profession. Before this happens, I do not expect to see much diminution in the deterioration of these women through fear and delay; deterioration in their confidence until they can commit or attempt to commit suicide—which, though uncommon, occurs, as I know from my own experience; deterioration in their capacity until their existing homes are threatened; deterioration in their respect for society's laws until they resort to the illegal practitioner or to attempts to abort themselves.
The most important thing we can do with this Bill is to impress the public with a new generosity in our social laws. The least we can aspire to is to make the authorized medical profession as 504 initially accessible as possible—this is an important consideration to bear in mind when it comes to redrafting the Amendment which was moved by the noble and learned Viscount on Tuesday—and its handling of individual cases as efficient and reassuring as possible to the woman who wants an abortion. The less inviting we make the prospect of appeal to authorised practitioners, the more will alternatives be preferred.
I will conclude by stating my own point of departure in this debate from the proposers of the Bill which, in compromise, I support. I do not believe that the mother is necessarily the best judge of the future lives of her family and its capacity to accept another child or of her own reactions to this child after its birth. But I believe that legally she should be the ultimate judge. I cannot accept that any woman should be forced against her will to bear a child she has conceived.
There would be reasons to accept for the time being, as a legally allowable date for a terminable pregnancy, a cautious estimate based on current medical experience and knowledge of up to the moment when the fœtus could have a viable life outside the womb of the mother. Certain conditions, perhaps, ought to be satisfied before this could be obtainable on the National Health Service. Colorful examples have been given of the girl who will want an abortion because she wishes to go ski-ing or to a garden party. Let such cases be treated as one treats cosmetic surgery. Consider such a girl as frivolous, as trivial, as amoral, as unprincipled; bring to bear all the sanctions of your venerable disapproval. But legal sanctions? No. Leave the passage of morality from one generation to another to the methods that alone bring morality and honour—to influence by education, to persuasion by argument, and to instruction by example.
I am capable of concluding, ruefully, that this view will not be that of the majority of the Members of your Lordships' House. But if it is your Lordships' wish to reduce the resort of women to the commission of illegalities, if it is your wish to reduce the strain, the danger and the exploitation for tens of thousands of women annually, you do this only to the extent that you include in your legislative 505 Permission those reasons for which women actually wish abortions. You can completely do so only if you include them all, and you can be certain that you have included them all only if you leave the ultimate discretion—allow as much power of dissuasion as you please to the doctor and psychiatrist—to the mother.
I do not expect that your Lordships will accept this view, but in my opinion the reasons I have given for rejecting this Amendment to the Amendment require refutation. If all other provisions but this one were to stand part of the Bill, it would, in my submission, probably be regressive, and certainly would be niggardly and inhumane. It could be regressive, because it has never been legally established that abortions for these reasons are illegal; and those who read the descriptions that Sir Dugald Baird gave in last Sunday's Observer of his own decisions in Aberdeen will have seen that, in the opinion of this distinguished and courageous man, these reasons were probably not, in all the circumstances, illegal grounds. It would be niggardly and inhumane, because it would have amended the fringe, but left untouched the cruel heart of this unhappy problem.
§ 4.5 p.m.
§ LORD MOLSON
I am glad the noble Lord, Lord Silkin, has indicated that he is going to stand firm upon this principle which is included in his Bill. My noble friend Lord Ilford began by saying that he found himself in complete agreement with my noble and learned friend Lord Dilhorne, but he later went on to express his approval of paragraph (c) of Clause 1 of the Bill as originally introduced by the noble Lord. It seems to me that the principle which is contained in the paragraph we are discussing now is the same as the principle in paragraph (c) of the original Bill.
After carefully listening to my noble and learned friend Lord Dilhorne, I came to the conclusion that he really was opposed to the principle of allowing abortion in cases where the social and family circumstances were such as to make the mother unlikely to be an adequate parent. My noble friend Lord Ilford suggested that the noble Lord, Lord Silkin, should accept this Amendment to his Amendment and bring forward a re-worded 506 clause at the next stage. It is clear to me that it is essential that in this Committee stage your Lordships should make up your minds whether you are prepared to accept—as I hope you will—this extension of the existing law regarding abortion.
It has been made quite plain all along that the Government will be willing at a later stage to provide skilled drafting help in giving effect to the principles which your Lordships accept in the Committee stage. I think it is essential that this very important principle, which is contained—even if imperfectly worded—in paragraph (c) of the Amendment should be fully debated. Also, your Lordships should take a clear decision to-day whether you desire this Bill to accept this wider and, as I think, most essential principle, or whether you are prepared to drop it and cause this Bill to be really little more than a statutory legalization of what is believed to be the existing law upon the subject.
On Tuesday, without a Division, your Lordships accepted the principle that abortion was justified in the interests of the health of the mother. After a Division, but by a very large majority, your Lordships then went one stage further and agreed to the principle of abortion being legalized in order to prevent a physically or mentally abnormal child from being born. But so far your Lordships have concerned yourselves only with what might be considered to be the physical aspects of the matter. This paragraph asks that your Lordships should go further, and should accept that there are circumstances which are not physical where it is undesirable for a child to be born.
Anyone who has had experience in a constituency, and surely anyone who has read the law reports in the daily newspapers, must be aware that there are many families in this country where a child is brought into the world who has little or no chance of a reasonably happy family life or the prospect of being reasonably brought up. Not only does being born in those circumstances involve for that child the prospect of unhappiness and misery, ill-health, probably crime and, in any case, a thoroughly unhappy life; it may also be that that birth, in addition to bringing unhappiness upon the new-born child, is going to bring great 507 Unhappiness and suffering upon the family into which it is born. It is surely essential that we should take a broader and more humane view, and not regard abortion as justifiable only because of a physical deformity. It is something much more important than that. This should be a major step forward, in order to avert great human unhappiness which can be foreseen and can be prevented.
The noble Lord, Lord Reay, has rightly emphasized another aspect of this matter. Probably most of the illegal abortions which take place at the present time are due to the prospect of a child being born into a family in just the sort of circumstances I have tried to describe. There, the mother, however inadequate she may be in some ways, has at any rate the perception—perception perhaps brought on by long and prolonged suffering—to realize how undesirable it is that that child should be born, and so she goes to an illegal abortionist. Surely, when we are legislating upon this subject we should try so to widen the grounds of legal abortion, in a way which would appear to be reasonable and justifiable to two responsible medical practitioners, so as to avoid the illegal abortion, which is likely to be the only alternative to legal abortion.
So I hope that your Lordships, having gone as far as you have done in dealing with the physical matters, will take a broad and an enlightened view, as I suggest, and will consider other things besides mere physical infirmity; and that, where it is obvious that the grounds should be widened, as is contemplated in paragraph (c), abortion should he legalized. A large proportion of the mental defectives in this country are so by heredity. It is passed on from generation to generation; and I suggest that the safeguards already provided in this Bill are adequate. The consent of the mother or of the mother's guardians is required, and the approval of two responsible members of the medical profession.
I regard this Bill as an attempt at a great, beneficent and human social reform, and if the Amendment to the Amendment were carried I believe that much of the benefit to the nation and to future generations would be lost. I therefore hope that the noble Lord, Lord Silkin, will stand firm, and I hope your Lordships 508 will take the view that I have ventured to put forward.
§ 4.13 p.m.
§ LORD CONESFORD
I so often agree with my noble friend Lord Molson that I am sorry to differ from him on this occasion. Nearly every noble Lord who has spoken has found this problem very simple. I confess that I do not: I think it is difficult. I certainly appreciate, as I think the whole Committee does, the humanity that underlay the reasons given by the noble Lord, Lord Silkin, and the eloquent support that was given him by the noble Lady, Baroness Summerskill. At the same time, I believe that this paragraph of the clause is one that we cannot leave in. We are, after all, amending the criminal law, and if we amend the criminal law we must, I think, do it in language of sufficient precision to make it quite clear what our object is, and to be certain that the clause achieves that object.
The noble Lord, Lord Reay, gave cogent reasons—cogent in his opinion, and certainly reasons of considerable force—why the mother should determine whether or not her pregnancy should be terminated by abortion. That is a perfectly arguable point of view, but that is not what this paragraph says. If this paragraph said that, we could consider the merit of that proposition. That it has got merit is even the view, according to a report that I read in the Press a week or so ago, of the Bishop of Woolwich. He thinks that if the mother desires an abortion, ipso facto there should be no criminal offence if an abortion is carried out.
§ LORD SILKIN
May I interrupt the noble Lord? The noble Lord, Lord Reay, is not here, but I think it is only right that I should say that he did not rest the case on that. He deliberately made the point that that was his personal view, which might not be acceptable to a large number of noble Lords; but he was not resting the case on that. I thought he gave very cogent reasons for opposing the Amendment apart altogether from this point.
§ LORD CONESFORD
I am not going to differ at all from the noble Lord, Lord Silkin. That was not the whole of his speech. I am sorry that the noble Lord, Lord Reay, is not in his place, because 509 he made an interesting speech on which I wish to comment, and I should certainly have much preferred that he were here; but I think his personal view was the logical conclusion of his argument. I can understand the point of view—and there would be no lack of legal precision if we expressed it in the Bill—that whether or not a pregnancy should be terminated lawfully should depend on the wish of the mother. I am not saying that I agree with that; but, if that had been honestly stated in the Bill, we could have considered that proposition on its merits.
The next thing I wish to say to the noble Lord is that, on one view of the words which he has in his paragraph and which he defends, that is, in fact, the precise effect of what is in the paragraph—though not put forward in that straightforward way—because, if a woman desires to terminate her pregnancy by an abortion, a doctor might well come to the conclusion that she was mentally inadequate to be a mother. If that is the meaning, let us put that in the Bill and consider it on its merits. What I personally find intolerable is that we should have a paragraph as vague as this, which can mean absolutely anything, and put it forward as a serious amendment of the criminal law. That seems to me to be intolerable.
Moving examples were given, both by the noble Lord, Lord Silkin, and by the noble Baroness who supported him, of cases of families where you did not want, or where no humane person would have wanted, another child. But I could not help thinking, as I listened to those sincere speeches, that the argument was not really in favor of abortion: the argument was in favor of sterilization. I have not recently studied the criminal law closely enough to know how far, supposing what is desired is sterilization, we should require amendments of our existing law. But the argument put forward seemed to me to be an argument, in certain cases, in favor of sterilization, and not in favor of possibly an unlimited number of abortions in a family where you think that there should be no further birth in the interests of all concerned.
Now I appreciate very deeply the argument that, unless you satisfy the mother in every case, you may not wholly prevent her going to some undesirable per- 510 son to have an illegal operation performed. Nevertheless, the whole of this Bill, whatever we think of it, purports to set down conditions, and will still leave some operations illegal. I shall listen most carefully, of course, to what is said by the Minister, who will give us the view of the Home Office on this subject, but I cannot conceive that he is going to say that the paragraph as it stands is satisfactory. I do not suppose for one moment that he will say that, but he may give us some guidance that will make it easier for various Members to make up their minds. But for my own part I must make it quite clear that, where we are amending the criminal law, we must do it in language of precision; and this is not language of such precision.
Secondly, if the argument in favor of the paragraph is that which has been put forward by the noble Lord, Lord Reay, then the right method is to put what he wants in the paragraph; and it is really not a justification of the paragraph we are considering. Finally, I beg all noble Lords to consider whether some of the arguments that have been put forward are not really arguments for sterilization in certain cases, rather than, perhaps, for an unlimited series of abortions.
§ THE EARL OF IDDESLEIGH
I listened with great interest to the noble Lord, Lord Silkin, but also with a sense of familiarity as he mentioned case after case which I recognized. When he mentioned the woman who was in prison, I thought: "Yes, we had her case before the Committee on which I served about three years ago." We took the baby into temporary care while the woman served her sentence; when she came out arrangements were made that she should have a job in which she could keep her baby; and I have no doubt that the presence of that baby helped to stabilize her life. At any rate, we have had no further news of her. The woman with a criminal husband—yes, we have had her. She and her children have been a very considerable problem. The last news we had of her and of her family was good news: the husband was out of jail; the family had mostly been reunited; we were keeping an eye on them; they seemed to be doing quite well. The neurotic girl—we have at least 511 Four cases of that kind every year. We assume parental rights and generally get the children adopted. We find there are still a sufficient number of adopters to take on those babies.
I have seen these cases. I know that the Children's Service provides, for the most part, a happy and decent solution. In the Second Reading debate there was talk about the unhappiness of children brought up in children's homes; but children's homes in institutions are on the way out. To-day, more and more is done by fostering. It is true that fostering is not invariably the right solution, but in very many cases it solves the problem. Children grow up well and happy and sometimes get on very satisfactorily in life. Therefore I must maintain what I said on Second Reading: that I think, with community care for these children, it is broadly true to say that the unwanted child does not really exist.
I agree with the noble Lord, Lord Molson, that this is about the most important clause in the Bill. In fact, I think it is the only thing which really makes very much difference; the rest is a tidying-up operation and will not greatly alter the behavior of the majority of the medical profession. Many of us have read Sir Dugald Baird's account of what he has been doing in Aberdeen for many years. He is doing precisely what paragraph (c) describes. He is quite tough about it. He is, in fact, dealing with unmarried mothers who are unsuitable, for social reasons, to have their babies and mothers who have large families which are in the position of becoming problem families, where there is likely to be a family breakdown, a social breakdown, if they have any more. You can say: "You can push these into paragraph (a)". This is thoroughly dishonest, and I look at the noble Lord, Lord Amulree, because he wanted to do this.
§ LORD AMULREE
I must protest. I do not think it is being dishonest at all. If we are going to take the words as a whole in their broadest obvious sense, it is not going to mean whether you have a temperature or a pain; it is far more important than that. I think the work done by Sir Dugald Baird and by other people I know of in London, doing the same kind of work, could be done under 512 paragraph (a) as simply as under paragraph(c)
THE LORD BISHOP OF EXETER
Has the noble Lord considered the effect of Clause 2(1) in this respect? It seems to me that Clause 2(1) covers almost all, or could cover almost all, the cases that have so far been raised.
I think I had better not be led to give a snap opinion on Clause 2(1). I shall stick to this one. I think it is important that we should—
§ VISCOUNT DILHORNE
Could the noble Lord make one thing clear? Is he suggesting that under the law of Scotland at the present time there is provision similar to paragraph (c) here; or is it the case that the law of Scotland at the present time conforms to the law of England? As paragraph (a) embodies the law of England, presumably Sir Dugald Baird, if he is acting legally, is acting under that paragraph.
I cannot say; I do not know what the law of Scotland is in this respect. What I know is of what Sir Dugald Baird has been doing for many years, and, in my opinion, has been doing rightly. If your Lordships wish that the law of England and Wales should be the same as the behaviour of Sir Dugald Baird in Scotland I think your duty is plain: it is to support my noble friend Lord Silkin and reject the noble and learned Viscount's Amendment to the Amendment.
§ VISCOUNT DILHORNE
I hope the noble Lord will forgive me for interrupting again. His argument falls to the ground if the law of Scotland is the same as is now embodied in paragraph (a) and Sir Dugald Baird is acting lawfully—because his argument shows that you do not want anything else, if that is the case. I think the law of Scotland—although I am not an authority on this—does embody paragraph (a) and not paragraph (c). So his argument is ill-based unless he can tell us what is the law of Scotland.
§ LORD RAGLAN
One noble Lord said on Tuesday that Sir Dugald Baird was able to do this because he was not under the shadow of the coroner.
It was I who said that. It is a different question. I do not know what is the law of Scotland. I do not know whether Sir Dugald Baird was behaving legally or illegally. He was certainly interpreting paragraph (a) pretty loosely. This is what I think we want to be sure about: do we wish to ask doctors to interpret paragraph (a) loosely, as the noble Lord, Lord Amulree, would like; or tightly, as the noble and learned Viscount would, I think, like. Certainly he was very tight in his definition of paragraph (b).
§ VISCOUNT DILHORNE
May I say that I did earlier point out that paragraph (a) goes further than existing Case Law, in that it directly contemplates regard to the health after the birth of the child.
I think that is an inevitable concomitant of mental health and, indeed, of the survival of the mother, and I am quite sure that the health of the mother after the birth of the child is considered by every obstetrician; and where there is pulmonary tuberculosis or heart failure, it is the one thing that will lead to him making his decision about abortion. In practice, this particular paragraph (c) is not, in my opinion, perfectly phrased and in some ways I prefer the original phraseology. I hope very much that between now and Report stage my noble friend Lord Silkin will have a further look at it, to see whether it can be clarified a little more. But I hope that in principle, your Lordships will carry it now. That is what I think we ought to do. We ought to make a decision in principle, one way or another, so that the Parliamentary draftsmen may have a go at getting the wording clear.
I do not know what the Government are going to advise. They may think that the inclusion of this paragraph may make the Bill too wide. But I do not think so. If we are going to deal with illegal abortion, we can deal with it only by including these cases. I think this paragraph is 514 a vital piece of the Bill. Remember that there are all the other safeguards—the two specialist practitioners or the patient's own doctor. I sincerely hope that there will be a specification about the place where the abortion should be done, but that is another matter. I have no doubt at all that if we are to make any sort of useful reform we must include this paragraph.
§ LORD FERRIER
I find myself in some difficulty, for two reasons. One is that I agree with both the noble Lord, Lord Molson and the noble Lord, Lord Cones-ford. The second reason is that I am one who would oppose the Amendment to the Amendment. I venture to speak to your Lordships only because there are three points which have not come out in the discussion. I agree with the noble Lord, Lord Taylor, that we should decide the principle this afternoon.
I am not au fait with the law of Scotland, but the noble Lord put his finger on the point when he said that the system through the public prosecutor makes it more possible for a loose clause to be used as Sir Dugald Baird has used it. I think I am right in saying that in his article Sir Dugald Baird said that he also carried out sterilization in cases such as the noble Lady described, when an additional child would obviously have been a burden to the mother, to the rest of the family and to the community. But no mention has been made of the father. As the father of a large family myself, I feel that if the outcome of this debate is that the noble Lord, Lord Silkin, is to take back and re-phrase paragraph (c) we must remember that the father also is deeply concerned in this matter. I think I am right in saying that in certain other countries he has a say in law when it comes to a decision with regard to an abortion.
I see that there is a later Amendment by the noble Lord, Lord Strange, referring to the question of a welfare officer. After some of the doubts expressed by noble Lords, who have suggested that two doctors are not sufficient to judge in this matter, and the suggestion that the mother should be the sole judge, I am disposed to say that the father must come into it, too; and if the father is not available, then a welfare officer should come into it.
§ LORD AMULREE
I think that the second doctor should be a consultant on the staff of a hospital, and he would almost certainly have a welfare social worker working with him who would come in. I think that is the point which was referred to by the noble Lord, Lord Strange. Certainly there would be a trained social welfare worker.
§ LORD FERRIER
So long as that is clear, I am satisfied. I am only saying that if the Amendment to the Amendment goes to a Division, I shall oppose it; but I sincerely hope that in the light of what has been said—we still await what the noble Lord on the Government Front Bench has to say—perhaps paragraph (c) could be recast, so long as the principle for which it stands is established once and for all.
§ 4.36 p.m.
I had not meant to speak on this Amendment, but as this discussion has ranged a little further than its wording I should like to say this, as shortly as I can. There are two questions, I think, now being discussed. One is how far this clarifies the law and how far it obscures it? The second is how far is all this a step forward and how far a step back? I am absolutely in agreement with every word said by the noble Lord, Lord Conesford, about clarification. I have my own views, which I am afraid are minority views on the other question. I am not convinced that it is a step forward. It seems to me that the law at present, in the three cases which are the basis of the law, is very broad. I am inclined to place great weight on what the noble and learned Lord, Lord Parker of Waddington, said, that Judges give a liberal interpretation to this. I agree strongly with the noble and learned Viscount, Lord Dilhorne, and with the noble Lord, Lord Conesford. The word "adequate" is one which I find awfully difficult.
May I shortly give two examples in the form of questions. What is an adequate mother? Take two historical examples, one well known and one not. Was Beethoven's mother adequate? Those of your Lordships who know the life of Beethoven better than I do can give your own opinion, but I think that one thing on which we should all agree if we read an encyclopædia is that she 516 was more adequate than his father, or perhaps rather less adequate. The father was an alcoholic and was also guilty of what would now be considered a more serious offence, of forging a baptismal certificate to get money out of a charity; so that Beethoven, for much of his life, gave a false date of birth. The child born before Beethoven died at birth; the mother died with the following child and the child died a short time afterwards. That may well be an argument for saying that it would have been much happier if Beethoven had not existed. I do not know. But I think that it is an argument as to whether she was an adequate mother. I think this question ought to be more clearly based on what grounds we mean by "adequate".
I give my other example with some diffidence. I understand that the noble Baroness, Lady Summerskill, assumes that we are dealing only with cases of slums, and I understood that it was to deal with all cases. Otherwise I should hesitate to suggest the case of my own paternal grandmother who was an affectionate and delightful parent, but whose case raises certain points. She certainly produced no musical geniuses. Indeed, it is fair to say that, although she was adequate in the sense that she produced seven children, three of whom survived to the age of 80, none, I think, was, in the traditional phrase, capable of saying "Oboe" to a Goossens; and if they had been treated to an obligato, would have been hard put to know which was the obligato and which was the oboe.
My grandmother raises the point about what is an adequate mother. Is it a sign of adequacy or inadequacy to bring up a live pig in the nursery with one's children? I suppose that it was adequate for the pig, which was regularly fed out of a bottle—and I understand it was not her fault that it died. I believe I am right in saying that it diverted much less of her attention from her six children than did a baby crocodile which I am told she kept under her chair. All I mean is that she may be accused of having been an inadequate mother in that she did not always clearly remember the names of her children. She was constantly surprised by the regularity with which they returned from school—and delighted, as I think any 517 Government, except perhaps the contemporary one, are surprised by the English weather. It took her by surprise every time.
I think the only serious accusation is that she was incapable of sending them to school in the right clothes. It was more serious for my father, who at the age of four or five had a great deal of pleasure out of the pig in the nursery, but had no pleasure from having to appear on the first morning of boarding school, rather late for prayers, in a suit belonging to his brother and three sizes too large for him. The noble Baroness will say that this is not a relevant case, because she was in comparatively good circumstances.
That raises another question. Are we legislating for the whole country or legislating for a class? It seems to me that, if we are going to word this clause so that the law would be narrower than it is now, then the word "adequate" is inadequate.
I think I have stated my point of view and will not say any more on that, because the question of principle of whether abortion should be something that any woman is entitled to depends on what one believes about taking human life. I do not think that many noble Lords would suggest, although with the best of motives, that because a woman's life is being made intolerable by blackmail through no fault of her own it is necessary to pass a Bill saying that the blackmailer must, on the advice of one solicitor or a solicitor and a barrister, be silently and painlessly liquidated, because otherwise she has no alternative but to go to the nearest band of thugs and have him put out of the way. That, of course, is an extreme case, but if we regard the fœtus as a person it seems to be a relevant example.
I have not yet been convinced that a human being before it is born—I say this with great respect to the noble Lord, Lord Soper, with whom I had a conversation after our last discussion on Committee—has no personality and that his personality is something that emerges only with self-consciousness. It was said by Hood,It gives me little joyTo know I am further off from heavenThan when I was a boy518 It is far less blessed on the whole to think that,The experts cheat usWho tell me I have now more soulThan when I was a fœtus.This is a point which I think might be discussed later on. But, on the wording of the Bill, I am perfectly sure that it does not assist clarification. That is all I have to say.
§ LORD STONHAM
Until I listened to the noble Viscount, Lord Barrington, I thought that this was a subject on which it was possible to speak without apparent emotion. We have heard a number of moving and passionate speeches. We were asked by my noble friend Lady Summerskill to exercise compassion and charity, and by the noble Lord, Lord Molson, to take a broad and human view. These are appeals which are never made without avail in your Lordships' House. I must remind your Lordships that, when the Committee stage started, I promised to refrain from comment on matters of principle and to confine myself to comment on facts, feasibility and the practical application of the proposals before the Committee. I hope that I have your Lordships' sympathy while I try to walk this somewhat difficult tightrope.
The noble Lords, Lord Molson and Lord Conesford, referred to drafting assistance, mentioned that the Amendment might possibly be imperfectly drafted and not viable for that reason, and suggested that my noble friend Lord Silkin might take it back and look at it again. This is one of those occasions when it would appear, from what noble Lords say, that the principle is conceded but the drafting is not viable.
§ LORD CONESFORD
I rise only to correct the noble Lord. I did not make that suggestion, though I think that the noble Lord, Lord Molson, did.
§ LORD STONHAM
The noble Lord, Lord Molson, and the noble Lord, Lord Ilford, though he is not here at the moment, did so in terms. I want to make it clear that though my noble friend Lord Silkin, if he feels so inclined after the debate, may wish to come forward at a later stage with a different form of words, I am not giving that advice. This is clearly a matter for the Committee to decide in principle—there seems to be no sort of halfway house. I would also 519 Make it clear that this is a point which we have not previously considered in Committee. Broadly speaking, what we have been considering is mostly medical evidence. Here, though there are medical grounds, it is largely a sociological question. I think that my noble friend Lord Silkin and the noble Lord, Lord Reay, would not disagree with that.
We have heard a conflict of opinion between Peers who are also doctors. On the one hand, the noble Lord, Lord Amulree, declared that many of these cases would be covered by paragraph (a), where two doctors are of opinion that the mother's life or her physical or mental health might be gravely impaired or endangered if pregnancy were to continue. My noble friend Lady Summerskill, supported by my noble friend Lord Taylor, took the contrary view. I am not going to express any opinion on that, except to say that my noble friend Lady Summerskill mentioned one or two specific diseases, of which I noted arthritis and neurosis, and said that they do not affect pregnancy and therefore would not come under paragraph (a). I would hope that, whatever views are expressed on either side, it should not be taken that the fact that certain diseases do not affect pregnancy necessarily precludes those who are suffering from those diseases and being considered for abortion from having these considered as at least one of the factors guiding the doctors' decision. I do not want to go farther than that, but I must say that so far in our discussions we have attached the greatest importance to the opinion of the doctors. It is not a question of an opinion on a group or class of abortions, but of an opinion at the time on the woman they have in front of them and the factors relating to her.
The next aspect which must be emphasized is that paragraph (c), which it is sought to delete, can be of use only when the health of the mother is not in danger. When we are considering an Amendment and what is meant by it, naturally we all put our own interpretations upon it, and I had regard to the fact that this particular paragraph will he governed by the proposed new Clause 2 which my noble friend Lord Silkin will be moving later, and therefore covers 520 the total environment, actual or foreseeable, of the pregnant woman.
I must confess that the kind of case which came most readily to my mind when considering what my noble friend intended was the case he mentioned of the woman with a large family to whom the prospect of an additional child was something unthinkable. I must say that I was not prepared for the long list of examples that my noble friend gave. I do not want to repeat them all, but I was particularly struck by the fact that he mentioned a woman in prison, a persistent offender and even a shoplifter. Shoplifting is something that we do not like and it has to be punished; but it is not the greatest of crimes. Therefore it would mean that almost any indictable offence, or certainly an offence not greater in gravity than that of shoplifting, could be taken into account. That is what is intended if this paragraph were to be accepted. If it is going to be as wide as that, it could be taken into account by doctors who would have the job of considering whether an abortion is legal. It was, in fact, rather a long list but I mention merely those cases.
I must then point to the practical difficulty for the doctors, and, since this is going to be a Statute, of enforcement. The Government feel that this is not simply, or even mainly, a medical problem, but it is also a social problem. Our great difficulty is in deciding how the mental or physical inadequacy of the woman is to be decided by the doctors, not only on medical grounds but on social grounds. Therefore, it is my duty to point out that paragraph (c) is open to objection on the practical ground that it would be difficult to apply, and on grounds of principle in that it introduces these sociological considerations. The right reverend Primate said that it was an agreeable and surprising experience to find himself in agreement with the noble and learned Viscount, Lord Dilhorne.
§ LORD STONHAM
Perhaps I had better not comment on that. It might be regarded as showing bias and getting off that tightrope. But the right reverend Prelate, the Bishop of Exeter, said it 521 was an agreeable and surprising experience to find himself in agreement with the noble and learned Viscount, Lord Dilhorne. I make no comment of that kind, but will conclude by saying that the Government cannot commend paragraph (c) to the Committee.
§ 4.52 p.m.
§ VISCOUNT DILHORNE
Perhaps I might reply shortly to the debate that we have had, because it has traversed a very wide field, and this is, I think, an important question. I say that it has traversed a wide field because a great deal of the discussion seems to me to have gone far beyond the words of the paragraph which I seek to leave out. We have had, if I may say so, something in the nature of a Second Reading speech—we had one on Tuesday last—from the noble Lord, Lord Reay, in which he covered the whole ground. I would just say this to the noble Lord. I remember the speech he made on capital punishment and his saying how wrong it was to take any human life. I was rather surprised to hear that he regarded as a general principle that it would be right to destroy a potential human life just at the instance of the mother. I cannot go so far as that with him. But, as my noble friend Lord Conesford said, that is not really the issue on this Amendment. Here the question which has to be determined is: is the pregnant woman, physically or mentally, inadequate to be a mother? And that is all.
Is that the right test? The noble Lord, Lord Silkin, gave an explanation of what he meant to cover. I took down the list, and I hope that I have it right. I must say that I was astonished at those who he thought should be included in the category of being inadequate to be mothers. He spoke about the woman who suffered an illness and was less able to bear the burdens of childbirth. These may be, and no doubt are, sad cases. But surely in those cases the illness and the condition of the pregnant woman would be taken into account by the doctors in considering whether she would suffer in health during, or after, the pregnancy. I cannot claim to speak as a doctor, but I should have thought that the vast majority, if not all, of these cases would come under paragraph (a) as it now stands.
522 The reason why I interrupted the noble Lord, Lord Taylor, in his speech was this. I read the article by Sir Dugald Baird. I should not like to assume for one moment that Sir Dugald Baird has been acting illegally under the law of Scotland in a hospital administered by the National Health Service in Scotland. I assume, too, that the law of Scotland is in this respect the same as our law. Rather than suggesting that Sir Dugald Baird's argument is an argument in favor of paragraph (c) I think it is an argument, if it can be used at all, for saying that paragraph (a) is quite sufficient.
Also in the list of the noble Lord, Lord Silkin, there were the woman in prison, the persistent offender, the shoplifter, the drug-taker and the alcoholic. Those were the people who he said were not fit to be persons in charge of children; inadequate to be mothers, in the sense of this particular paragraph. I cannot share the view that a woman has only to come within those categories to be regarded as being inadequate to be a mother. I think that we should be making bad law if we provided that.
The noble Lord went on to refer to the case, which I am sure aroused great sympathy, of the woman who had six children, aged from 18 down to 7, and who had had a nervous breakdown four years earlier and found herself pregnant again. I cannot believe that that case would not be covered by paragraph (a) of this clause as it now stands. I cannot think it would be found that doctors were not prepared to say that a woman with that number of children to look after, and with a history of a nervous breakdown, could have another child without serious risk of injury to her health. It seemed to me that, far from that case being an argument in support of this paragraph, it really destroyed the noble Lord's argument. The noble Lord referred to women who go out to work, and to women whose husbands are drunkards. Surely, these should not be grounds for saying that they are inadequate to be mothers. And that is what the wording of this clause says. I think there is great force in what my noble friend Lord Conesford said: that so many of these arguments are arguments which can be used with great effect in favor of birth control and in favor of sterilization. But once you 523 Come to the termination of a pregnancy, you move into a different field.
I listened with the greatest interest to the speech of the noble Baroness, Lady Summerskill. She obviously spoke with great sincerity when she referred to what might happen in slum homes and invited us to exercise compassion and charity. I would say to her that I do not think that inadequacy as a mother—her words were "physical and mental inadequacy to be a mother"—depends upon whether it is a slum home or a rich home. I do not think that that argument really prevails.
We had a powerful speech from my noble friend Lord Molson. He asked that this Amendment should be rejected. He said: "Let us get away from something physical"—I think he was referring to health considerations. But I would point out to him that paragraph (c) is limited to physical or mental inadequacy to be a mother. We are not considering here the wider considerations to which he gave vent. I would suggest to him that if he considers paragraph (a) and its full implications, he will find that most of the cases with which he has such sympathy, and with which we all have sympathy, cone under that paragraph.
I have dealt fairly shortly with the various points that have been raised. This paragraph does not raise the wider issues covering the whole field which have been touched upon in this debate. But it does raise a serious question of whether we are to allow a possible human life to be destroyed because some people, whoever they may be, think that a woman is inadequate to be a mother. I hope your Lordships will not give approval to that principle.
§ 5.3 p.m.
§ LORD SILKIN
I hope I am replying to the debate and that we can shortly come to a decision. In a sense, this discussion has been a lawyers' paradise. We have had three eminent Q.C.s who have directed most of their attention to criticizing and demolishing the wording of the paragraph. I say at once that it is quite easy to do that. The noble and learned Viscount himself tried his hand at drafting, and he was not entirely successful in the Amendment he put down on Tuesday.
524 I have not been entirely successful. No Private Member who tries to draft a Bill can be assured that he will get exactly the right words to meet what he wants to do. If one has the benefit of the help of the Parliamentary draftsmen, then one can put that right.
It is a fact—and I agree fully, therefore, with the noble Lord, Lord Molson —that what we want to consider this afternoon is the principle of what is behind this paragraph. I think most noble Lords will be in no doubt—I do not think the noble and learned Viscount is in any doubt at all—as to the intention of this paragraph. I am not sure about the noble Viscount, Lord Barrington. We heard so much of his reminiscences and his autobiography that it was very difficult—I am not going to give way to him. The noble Lord had his turn, and he said quite a lot. The real issue before the Committee now is that, whatever the defects in the wording may be (and I would agree that it is wrong to pass legislation which is defective as an amendment of the criminal law, but your Lordships will have two more opportunities of ensuring that the wording is not defective), all I am asking this afternoon is that your Lordships should accept the principle.
The noble and learned Viscount made great play of the fact that most of the cases—he did not say all the cases—that we intended to cover were covered by paragraph (a). Would he look at paragraph (a)? It provides that termination of the pregnancy is necessary where there is a serious risk to the life or grave injury to the health, whether physical or mental, of the pregnant woman by the continuation of the pregnancy. The cases that I have in mind do not involve any such risk, and any doctor who tried to carry out an abortion in the cases I have in mind would be failing in his duty, or going beyond what the provisions intend—and I doubt whether any doctor would. My noble friend Lady Summerskill and I set out a number of illnesses which may be affecting a woman, which would not affect gravely her health or her life but which would affect her capacity to be a mother: the woman who is suffering from epilepsy, and the woman who is suffering from an acute disease which would seriously affect her capacity to be a mother, as well as the 525 Woman who is in prison. That is the principle to which I am asking your Lordships to agree. If you do not like my example of shoplifting—and I meant a perpetual shoplifter—then forget it. I merely tried to illustrate, as best I could, the kind of cases which I thought would justify an abortion. But it is not for me: it would be for the doctors. I hope they would be guided in most cases by a social worker, especially, as has been said, if one of the doctors was a hospital doctor, who has access to social workers.
I think I have said enough to indicate that there are many cases outside the provisions of paragraph (a) where an abortion would be justified. I would emphasise that in the last resort it will be the doctors who will decide, and not the mother. The mother will be asking for an abortion, but she will not be the deciding person—it will be the doctors. The noble and learned Viscount agreed that the letter which I read out was a pathetic letter, but he said that, surely, in a case like that she would get an abortion. In fact, she has asked for it and has been refused. She has been refused by a hospital doctor because she does not come within the terms of the existing case law. She does not, and will not, come within the terms of paragraph (a).
§ LORD SILKIN
I can assure the noble and learned Viscount that she will not. I have read the letter very carefully. She had a nervous attack four years ago, but she says that she has now recovered, and there is no reason to suppose that her life would be endangered or that she would suffer serious ill-health simply on account of the pregnancy.
Both the noble and learned Viscount and the noble Lord, Lord Conesford, suggested that many of these cases were cases for sterilization. These are not
§ mutually exclusive. There may be a case for sterilization, but we are not discussing that. In the kind of case we have in mind, a woman is pregnant, and the question that has to be considered is: would an abortion be justified? You cannot say, "We will not give you an abortion, but we will sterilize you"—certainly not under the Bill that is before us. The only question before us is: should this woman be entitled to an abortion or not? I think the case has been amply made out that she is.
§ My last point is on the speech of the noble Lord, Lord Reay. I interrupted the noble Lord, Lord Conesford, and pointed out that Lord Reay was expressing a view which a great many people shared, but that he was not basing his opposition to the Amendment on the views that he was expressing. I thought he put forward some cogent arguments in support of the clause as it stood and against the Amendment to it. It may be that his speech would have been stronger if he had omitted the expression of his personal views, but he was perfectly entitled to express them, particularly when he pointed out that he was not basing his case on them. Therefore, I hope your Lordships will not be prejudiced against the clause merely by the statement of the noble Lord, Lord Reay, or by anybody else, that the mother's desire for an abortion should be the sole consideration. That is not the intention of the clause. The intention is that on the grounds which are set out here the doctors should consider whether or not an abortion is justified. I hope that at any rate the issue is now clear and that your Lordships are ready to make a decision.
§ 5.12 p.m.
§ On Question, Whether the Amendment to the Amendment shall be agreed to?
§ Their Lordships divided: Contents 51; Not-Contents 75.527
|Albemarle, E.||Craigmyle, L.||Exeter, Bp. [Teller.]|
|Amulree, L.||Daventry, V.||Ferrers, E.|
|Ashbourne, L.||Denham, L.||Foley, L.|
|Barrington, V.||Derwent, L. [Teller.]||Forster of Harraby, L.|
|Bristol, Bp.||Dilhorne, V.||Fortescue, E.|
|Champion, L.||Douglas of Barloch, L.||Goschen, V.|
|Chester, Bp.||Dudley, L.||Grenfell, L.|
|Clwyd, L.||Dundonald, E.||Howard of GIossop, L.|
|Coleraine, L.||Effingham, E.||Iddesleigh, E.|
|Conesford, L.||Emmet of Amberley, B.||Ilford, L.|
|Kinnoull, E.||Newall, L.||St. Helens, L.|
|Lothian, M.||Newcastle, Bp.||Shepherd, L.|
|Luke, L.||Oakshott, L.||Stoneham, L.|
|Lytton, E.||Ogmore, L.||Swaythling, L.|
|Massereene and Ferrard, V.||Parker of Waddington, L.||Tenby, V.|
|Merrivale, L.||Rea, L.||Terrington, L.|
|Morris of Borth-y-Gest, L.||St. Aldwyn, E.||Ypres, E.|
|Aberdare, L.||Ferrier, L.||Moynihan, L.|
|Addison, V.||Gaitskell, B.||Plummer, B.|
|Adrian, L.||Gardiner, L. (L. Chancellor.)||Raglan, L.|
|Ailwyn, L.||Gifford, L.||Reay, L.|
|Archibald, L.||Granville-West, L.||Rhodes, L.|
|Arwyn, L.||Greenway, L.||Rowallan, L.|
|Asquith of Yarnbury, B.||Grimston of Westbury, L.||St. Davids, V.|
|Astor, V.||Haire of Whiteabbey, L.||St. Just, L.|
|Atholl, D.||Harlech, L.||Saltoun, L.|
|Balerno, L.||Hawke, L.||Silkin, L.|
|Blackford, L.||Henley, L.||Snow, L.|
|Bourne, L.||Hurcomb, L.||Somers, L.|
|Brooke of Ystradfellte, B.||King-Hall, L.||Sorensen, L.|
|Burden, L.||Lambert, V.||Stonehaven, V.|
|Byers, L.||Latham, L.||Strang, L.|
|Cholmondeley, M.||Leather land, L.||Strathclyde, L.|
|Cohen, L.||Lloyd of Hampstead, L.||Summerskill, B.|
|Cohen of Brighton, L. [Teller.]||Lucas of Chilworth, L.||Taylor, L. [Teller.]|
|Colwyn, L.||MacAndrew, L.||Teynham, L.|
|Courtown, E.||McCorquodale of Newton, L.||Thurlow, L.|
|Crook, L.||Milverton, L.||Wade, L.|
|Ebbisham, L.||Mitchison, L.||Wellington, D.|
|Elliot of Harwood, B.||Molson, L.||Williams, L.|
|Falkland, V.||Morrison, L.||Williamson, L.|
|Faringdon, L.||Moyne, L.||Willis, L.|
§ Resolved in the negative, and Amendment to Amendment disagreed to accordingly.
§ THE DEPUTY CHAIRMAN OF COMMITTEES (LORD AILWYN)
Before calling on the next Amendment, No. 8, I think I should explain that if this Amendment is now moved and agreed to I shall be precluded from calling Amendments Nos. 9 and 10 standing in the name of the noble Viscount, Lord Dilhorne. I understand that the right reverend Prelate the Bishop of Exeter and the noble Earl, Lord Lytton, are willing to move their Amendment No. 8 after Amendment Nos. 9 and 10, and that this arrangement has the agreement of the noble and learned Viscount. I think that this is for the general convenience of the Committee, and with your Lordships' permission I therefore call on Amendment No. 9 as an Amendment to Amendment No. 1.
§ 5.21 p.m.
§ VISCOUNT DILHORNE moved, as an Amendment to the Amendment, in paragraph (d) to leave out "when under the age of sixteen or". The noble and learned Viscount said: Paragraph (d), to which 528 we now turn, covers a wide variety of topics: the question whether this termination should be allowed when a pregnant woman is a defective, when she becomes pregnant under the age of 16 or as a result of rape or as a result of intercourse which is an offence under the Mental Health Act 1959. Different considerations must apply with regard to each one of these matters, and I think it would be convenient for the Committee to consider them separately. I beg to move that the words "when under the age of sixteen or" be omitted from this paragraph.
§ As I see it, the argument for this provision is that as in most cases, but not all, the pregnancy of a girl under 16 will have followed the commission of a criminal offence by a man, the girl should therefore be entitled, if she proves she is under 16, to have her pregnancy terminated. Under that age she cannot in law give consent to sexual intercourse, though in fact she may well appear to be considerably above that age and may have in fact consented. I do not myself consider that this argument, which I have summarized and I think is the argument for this provision, is really sufficient to 529 justify the destruction of a potential human life. If there was a grave risk to the health of the girl the case would come under paragraph (a), and now, if it was considered that she would be inadequate as a mother, it would come under paragraph (c). Why then is there any need for making this general provision for termination just on account of a girl's age? All she will have to do, presumably, is to produce her birth certificate, and two doctors, having seen that birth certificate, will then have to give the necessary certificate because they will be satisfied (a) that she is pregnant, and (b), that she is under 16. And so you are giving an absolute right, as I see it, if this paragraph is passed unamended, to any girl under 16, no matter how strong she may be, no matter whether or not she in fact consented to the sexual intercourse, to have the pregnancy terminated and the potential life destroyed.
§ I do not think I need say any more in moving this Amendment to the Amendment, except to say that in my opinion this really will not do. I am sure the noble Lord who is responsible for the Bill is the last person who would wish to encourage immorality among young girls, but I must say I fear the consequences of this proposal, if this Amendment to it is not carried, will be precisely that. I do not think I need at this moment add anything to the argument in favor of this Amendment. I beg to move.
Amendment to Amendment moved—
In paragraph (d), line 2, leave out the words ("when tinder the age of sixteen or").— (Viscount Dilhorne.)
§ LORD SILKIN
The noble and learned Viscount will not be surprised if I tell him that I cannot accept this Amendment, and it is not because I want to encourage immorality. I do not think whether this provision is in the Bill or not will have the slightest effect on immorality. Let us consider whom we are dealing with. We are dealing with girls under 16 who have become pregnant. They are girls against whom an offence has been committed.
§ LORD SILKIN
There is the exception where the person committing the offence believed she was over 16. The noble and learned Viscount can have that. But, broadly speaking, it is an offence to have intercourse with a girl under 16. These are girls who are not allowed to marry and who obviously ought not to have children at that age. The noble and learned Viscount made some play with the fact that some of these girls have been consenting parties. I do not know whether he went quite so far as to say that they may even have encouraged intercourse; but I have heard that argument, that these young girls have actually encouraged it. I would not dispute that there might be the odd case where this happens. But, by and large, when you are thinking of girls under 16 who have got into trouble, whom are you thinking of? You are thinking of girls who are immature, who know little about life, who, in the main, have not appreciated what they have done. To call them "innocent girls" is no doubt an overstatement, but many of them are really schoolgirls who have done something the full consequences of which they cannot appreciate. I would say that that applies to the vast majority of girls who have got themselves into this difficulty. I would say that in those cases it is right that there should be an abortion.
I was not particularly intimidated by the statement of the noble and learned Viscount. He was rather horrified at the thought that they would get an abortion as of right if they could find the doctors who would give it to them. Broadly speaking, I think he is right. I think they would get an abortion as of right, and it is my contention that they should. I do not think that the vast majority of girls under 16, who in my submission are normally innocent girls, should suffer because there are a few girls who do know what they have been about, who have been consenting parties, or who may even have encouraged the man or led him to believe that they were over 16. I think that the majority of these girls should get an abortion, because they are too young to be mothers and because it would be a tragedy if they gave birth to a child.
Even if the odd girl who the noble and learned Viscount thinks should not 531 get an abortion, gets one, I should not be unduly disturbed. Many of these girls have got into trouble through older men. Maybe they have been flattered. Perhaps they have been given a ride in a car. Perhaps they have been to a party in exceptional circumstances. They may have been given strong drink in excess for the first time in their lives. I think it is quite wrong that they should be made to suffer because of what often turns out to be a casual incident of this kind.
I would ask noble Lords and Ladies to be honest with themselves. Supposing such a misfortune happened within their own families. Suppose it was a daughter of their own under 16 who got into trouble. Would they be weighing up the finesses of the language of the clause, and saying that there may be some other girls who have got themselves into trouble through their own fault? Would they, individually, not move heaven and earth to ensure that their child or their close relation got an abortion? Quite frankly, I would. I would not let a daughter of mine, if she were under 16, go through this situation and produce a child. I have no doubt at all that every noble Lord and Lady in this House would take the same view, and I think they would be right. This is not a matter that one can argue at great length. I think that in a case of this kind there should be an abortion, simply on the ground that the girl is under the age of 16 at the time of pregnancy.
§ 5.35 p.m.
§ BARONESS SUMMERSKILL
Who are we talking about? We are talking about an individual whom educationists believe next year should not be at work but in the schoolroom—the girl of 16. In this debate some noble Lords are probably visualizing some girl of 16 they happen to know. They think of a big, tall, physically fit girl who is much bigger than her mother or her grandmother at her age was before her. This is due to the fact that she has been better fed, that school meals and school milk have resulted in producing a physically fine specimen of 16. But the educationist and the psychologist ignore that, and say that, nevertheless, society should recognize that this girl's mind is so immature that she should be in the school room. If 532 this debate were taking place next year, we should simply be saying to each other, "Well, should girls at school, if they become pregnant, be eligible for an abortion?" Your Lordships may feel quite differently about that. But that is a fact. We are talking about potential schoolgirls who become pregnant.
In an affluent society there are many boys and many older men, men of 20 and over, who are only too ready to ask a young girl to go out for the night. In these days, indeed, when there are more youths than girls, some of these pretty girls can choose among half a dozen for the night. The girl powders her nose and she does her hair. Why not? That is absolutely instinctive. She is a potential mother. She has the instincts of a woman, but she is not to be damned for that reason. She is invited to go out, perhaps for the first time. She discovers the lights. She goes to a restaurant, perhaps for the first time; and the man who has paid for her flatters her. The simplest fare the worst. Let me assure your Lordships that all my life I have examined pregnant girls. It is the simple ones who generally go to full term; the wily ones get out of it. That is a fact. We are asking whether the simple ones should be helped, not the wily ones.
The girl goes out, and the man has spent money on her. He flatters her. She thinks, "I am growing up. I must show that I understand these things." Our education system is such that often when these girls are kissed they really think that the man has fallen in love with them. That is fundamentally wrong. What we have to teach them in our education is that a kiss does not mean love. The real test of love—and your Lordships all know it at your age—is: is a man prepared to protect a woman at the expense of his own desire? I have thought of that one standing here, because I was so upset that the noble Viscount should say, as he did in his opening remarks: has age anything to do with pregnancy? The older woman knows—
§ VISCOUNT DILHORNE
With respect to the noble Baroness, I do not think that I said that age had anything to do with pregnancy. I do not know where she got that from. Nor did I say that girls under 16 should not be eligible for abortion. I did not say either of these two things. That is not the question.
§ BARONESS SUMMERSKILL
I am sure that if the noble and learned Viscount carefully reads Hansard tomorrow, he will see that he implies: Why, because the girl is under 16 (he agrees with that), should she be eligible for an abortion?
§ VISCOUNT DILHORNE
With great respect, I have never said that she should not be eligible. I said that this clause provides that if she is under 16 she has an absolute right to it. The two things are very different.
§ BARONESS SUMMERSKILL
I am prepared to accept that. I say that there is an absolute right to it. I say that under the age of 16 she is still immature psychologically. I say that, under 16, she may have been out with a boy of 15, 14 or 13 who was more immature than herself. But I say that, under 16, she was probably out with somebody of 18, 19, 20, 30 or even 40. Therefore, such a girl has a right to an abortion because she is immature in the first place. She goes to a restaurant probably for the first time, she has a drink probably for the first time. And what is the punishment which, in this year of 1966, it is suggested in this Committee should be meted out to her? What punishment do you mete out to your sons who have sexual intercourse in their adolescence? Are you harsh? Do you denounce them? Do you do something which will mark them for the rest of their lives? This is what is being suggested in this Committee to-day.
The punishment laid on such a girl is so medieval in conception that it is difficult to believe that the noble Lord who suggests it has given due thought to the whole question. In this day and age, when we know how to terminate pregnancy safely and successfully, we are asked to condemn such a girl. For how long are we to condemn her? Not for a month or a year, but for life. The girl who has an illegitimate child in these days has a burden as great as it was in the last century. She either gets rid of it, if she can, to an adoption home; or, if she tries to seek a room—in spite of our enlightened views, in spite of what we learn from television about enlightened pre-marital sexual intercourse—the landlady bars the door to her. For the lapse of one night, that child of under 16 is to be punished for 534 life. The malicious gossips have no mercy on her. If she keeps her child, the gossip will follow her. If she has her baby, she must find a hospital, somewhere to hide herself. I ask your Lordships to show mercy to the child of under 16, and to vote as you did on the last occasion.
§ LORD STONHAM
After the speech which has just been made by my noble friend Lady Summerskill, I do not think there is much to be said. There must be general agreement with the provision which we are now discussing. To permit a legal abortion in the case of a girl under 16 who becomes pregnant will not have very much effect on the morals of our children. There is a practical difficulty in the case of the girl who is just over 16 in deciding whether she became pregnant when she was under 16; but it is not thought that this would be a serious problem. It is argued that many of the girls under 16 who get into this condition are themselves, through their behavior, largely responsible for their condition. It is true that to-day girls of 16 are physically more developed than were their mothers or grandmothers at the same age. It could be argued that some of them are more precocious, forward, or perhaps some of them are even amoral, but it seems that the real point is that, whatever may be said of the individual girl, all of them are children. That is the important point. As my noble friend said, in a few months' time they will be schoolchildren, and perhaps at about the same period, if we can get the necessary legislation through, they will all be treated separately as children in accordance with the proposals in our White Paper.
The noble and learned Viscount said words to the effect that there was no justification for terminating a potential human life because the prospective mother is a child. We feel that the case of a girl under 16 is one deserving of considerable sympathy, and that to require this child to bear an unwanted baby at so early an age will seriously affect her whole future life. On behalf of the Government, I have to say that if the Committee wants a provision on the lines proposed by my noble friend Lord Silkin, the Government see no practical objection to it.
THE LORD BISHOP OF EXETER
Before a final decision is taken, I wonder whether either Lord Silkin or the Government spokesman can give me some information. Am I correct in supposing that under our existing law a child under 16 cannot give legal consent, but that her parents on her behalf can do so? The situation might arise where there was a girl under 16 who deeply wanted to have her baby, and to whom abortion would be a great psychological trauma, but whose parents were determined that she should not have the baby. May I be told whether that situation could, or could not, arise?
§ LORD STONHAM
We shall be discussing a somewhat similar situation on a later Amendment, and perhaps the right reverend Prelate might consider the point then. I would say at this stage that it is the case that the girl under 16 in law cannot give consent to intercourse or to marriage. That is another point that could be considered.
§ VISCOUNT DILHORNE
I do not think there is anybody in this House who does not recognize that in a great many, if not all cases, the idea of a young child —and the younger she is the more repellent it is—being forced to have a baby is something that must be dealt with. I must admit that I was surprised by the amount of emotion which was obviously felt by the noble Baroness, Lady Summerskill, about what I had said. I was not saying that it should not be possible for somebody under 16 who becomes pregnant to have an abortion; I certainly am in favor of that being possible. The question is not, as she put it more than once, should potential schoolgirls be eligible for abortion? The question here is, should they have a right to abortion? She may take the view, and I gather she does, that in every case they should have the right to abortion if they produce a birth certificate showing they are under 16.
§ VISCOUNT D1LHORNE
I am not asking her to withdraw from that position. It is not the same point of view as I have. I should suppose that the vast majority of the cases of pregnancy under 16 would be dealt with under paragraph (a) as it stands at the present moment, because in the vast majority of cases, if not all, where the girl did not want the pregnancy to be completed and was anxious and distressed (and the noble Baroness painted a graphic picture of the difficulties and experiences of a pregnant young girl), this would all be borne in mind by a doctor, in considering whether or not it was likely to be injurious to her health if the pregnancy continued. The noble Baroness shakes her head. Of course, this is my Amendment, and I thought I was replying to the debate. I should like to make it quite clear that, if the noble Lord gets up again, I shall feel perfectly entitled to reply again to him. I should like to make that quite clear, because the last time I rose he got up again and said that he was replying.
The issue here is whether we leave these cases to be dealt with on the grounds of health under paragraph (a), and the vast majority, I should say (although I cannot claim to be a doctor), of the cases where the girl does not want to have the baby—she is 15½ or something like that when she becomes pregnant—will be dealt with under that particular paragraph. If she is in distress and likely to suffer in health in consequence of having the baby, that paragraph will apply. But what the noble Lord is seeking to say here is this: Disregard any effect upon the health, disregard everything, but just give effect to the wishes of the girl, provided that she can produce a genuine birth certificate showing that she is under 16. That, I believe, would have undesirable consequences, and I think it would be much better to leave the position as it is under paragraph (a).
§ LORD SILKIN
I do not know whether or not I am replying to the debate, but the noble and learned Viscount is quite entitled to reply again if he wishes. I think he himself recognized that there would be cases which were not covered by paragraph (a). Indeed, from a physical point of view it is quite possible for a 537 Girl of 15 to give birth to a child without any injurious effects to her health or danger to her life. He himself said that the vast majority of cases would be covered by paragraph (a), but in fact there would still be a number which would not be covered.
I do not mind very much whether this girl gets an abortion under paragraph (a) or paragraph (d). What I am concerned about is that she should be entitled to get an abortion. If a doctor will certify that her life or her health will be seriously endangered and grants an abortion on that ground, then well and good. I do not think the girl would object; I do not think her parents would object; nobody would object. But the fact remains that there are cases—and I think I quoted some on Second Reading—such as where an abortion is refused to a girl of 14, because she does not come within the Case Law, which prescribes that there must be injury to her health or danger to her life. It is in order to cover those cases that this provision is included in the Bill. There may be very few—indeed, probably, there will be few—which will not be covered by paragraph (a). But there will be a number. I hope that, whether it is under paragraph (a) or under paragraph (d), a girl will be entitled to have an abortion, as of right, by producing a birth certificate, if you like, if she is under 16. I hope your Lordships will accept that position.
§ On Question, Amendment to the Amendment negative.
§ 5.55 p.m.
§ VISCOUNT D1LHORNE moved, as an Amendment to the Amendment, in paragraph (d) to leave out "of rape or". The noble and learned Viscount said: This is an Amendment of a somewhat different and rather more technical nature. Although at first impression it may look as if I am wanting to seek to leave out rape as a ground for termination of pregnancy, in fact my Amendment has not that motive, as I shall seek to explain. It should be noted that, although there is special reference in this paragraph to rape, no provision is made for termination where the pregnancy follows incest. Of one thing I am sure; that is, that in this House and outside it, there is very great sympathy with 538 the idea that pregnancies which are due to rape—and I would say also, due to incest—should be lawfully terminable.
§ We had an impassioned speech on the last Amendment from the noble Baroness, as to the consequences of pregnancy to a young girl, even if she consented. But it requires little imagination to envisage the distress of mind and anxiety of a young girl or woman who finds herself pregnant as a result of rape. I believe that any doctor who did not on principle object to abortion would have no hesitation in certifying that the continuance of such a pregnancy involved a grave risk to the health of the pregnant girl or woman. I believe, therefore, that all the cases which arouse so much sympathy, and so rightly—though in the course of a year I do not think there are very many of them—can and will be dealt with under paragraph (a); and so, in fact, pregnancies due to rape and incest are already clearly covered without the special provision in this paragraph.
§ There are reasons why I think that this is wrong. For instance, before this part of the paragraph applies, two doctors will have to certify that in their opinion the pregnancy is due to the commission of the criminal offence of rape; and unless they are satisfied of that they cannot certify. I think that this applies the wrong test. If a girl or woman honestly believes that her pregnancy is due to rape, it matters not whether a criminal offence has in fact been committed. It makes no difference to her anxiety and distress of mind. Yet this paragraph would provide that, despite their belief, doctors could not certify under this paragraph unless they were satisfied that there had in fact been rape. They could, of course, certify under paragraph (a), and this again shows how unnecessary it is to provide that rape shall be a special ground for termination.
§ And how on earth are the doctors to tell? The new Clause 2, about which I shall have something to say later, makes provision for a certificate by a medical practitioner "as soon as practicable after the alleged rape", provided that "there was then evidence of sexual assault upon her." But that subsection, of course, does not say what that certificate is to certify. It says under what conditions it can be given, but it does not say what it is to be a certificate of, as your 539 Lordships will see if you look at the provision. And how is the doctor going to say that a rape has been committed? There may be a rape which leaves no evidence of sexual assault at all; and if a medical practitioner finds evidence of sexual intercourse, there may not be evidence of sexual assault. So I cannot myself see that he can possibly say with any degree of certainty that a sexual assault has been committed.
§ Now doctors are certainly not the right people to decide whether rape has been committed. They may hear the statement of the girl or of the woman, but they have no means of determining whether that statement is true or false. Suppose the girl says she has been raped, and names the individual. Is the doctor to decide without hearing him that he has committed this very serious criminal offence? It might be suggested that termination on this ground should be allowed only where a man has been convicted of this offence, but that would not do because that would mean that the pregnancy would last for too long. I sympathize and I am not in disagreement with what I think is the objective of this provision, but to my mind it is absolutely wrong to make this depend upon the commission of the criminal offence and to provide that doctors, who can only hear the girl and examine her, are to certify whether or not in fact that offence has been committed.
§ I would ask your Lordships to consider how the Bill would work if these words were omitted. Let us assume that the words "of rape or" are not there at all. Take the case of a young girl who finds she is pregnant, who says she has been raped and who is in a great distress of mind and anxiety about it. If she goes to see doctors and asks for the pregnancy to be terminated, is there any real likelihood at all that the doctors will say that her mental health is not likely to be seriously affected by the strain of bearing a child which she believes, rightly or wrongly, has been foisted upon her? I do not believe it for a moment. Therefore, all the cases which the words in this provision are intended to cover are, in my view, already covered—indeed, are covered better than they are by this provision—because all the cases to which I have referred, and the case where the 540 Woman honestly believes that her pregnancy is due to rape, are also covered under paragraph (a), whereas the latter category certainly is not covered under paragraph (d).
§ This is really more than a drafting matter because, while I do not think there is any great dispute between us as to how far, in this field, we want the Bill to go, I suggest most seriously to the noble Lord that to put these words in expressly is unduly limiting, and is imposing on doctors a task they cannot perform. I believe that the noble Lord can achieve the result which he wants far better by leaving these cases, distressing as they are, to come in under paragraph (a) without any special reference either to rape or, indeed, to incest. I beg to move.
Amendment to Amendment moved—
In paragraph (d), line 2, leave out ("of rape or").—(Viscount Dilhorne.)
§ 6.5 p.m.
§ LORD SILKIN
I am very comforted indeed to find that there is so much common ground between myself and the noble and learned Viscount. He is not opposed to the doctrine that a woman—and we are not talking of children now; it may be a woman—should be entitled to an abortion if she has been raped.
§ LORD SILKIN
If the pregnancy is due to rape. The only quarrel between us, if one can call it a quarrel, is that he thinks those words are unnecessary while I think they are necessary. He thinks that all cases of rape can be covered by paragraph (a): I think they are not necessarily covered. As I said in response to an earlier Amendment, I do not think the pregnant mother would care two hoots whether the abortion is permitted under paragraph (a) rather than paragraph (d). What she wants is an abortion; that is what she comes for. In my opinion, however, there will be cases—perhaps not many—which are not covered by paragraph (a). The noble and learned Viscount is attaching far too much significance to the words of paragraph (a), but let me read them once more. They are thatthe 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 …541 In many cases that might be so. But a doctor might well say, "I agree that it will cause injury to the pregnant woman, physical or mental, but not grave injury, not serious injury. I think she will get over it quite well". He might well say that, and it is that kind of case that we want to cover.
The noble and learned Viscount criticized the criterion for the doctor, and said, "What has he to go on? You are making him a judge." I tried to meet the point, and I had hoped I had done so. In the first instance, he has to see the patient as soon as practicable after the alleged rape. I take it that that means within a few days, unless she is so seriously incapacitated that it takes longer. But, assuming he does see her within a few days, I am advised (I have not consulted my noble friends Lady Summerskill and Lord Taylor on this) that if she consults her doctor at any rate within a fortnight or so, and if she has been raped, there will be physical evidence to that effect. I am quite prepared to be guided by the advice I had and by the advice I hope I am going to get; but that is the case.
If, however, I were wrong—let us suppose that a doctor could not in a number of cases certify that there had been rape—and if (as, according to the noble and learned Viscount, is so) he can still give this woman an abortion under paragraph (a) because she believes that she has been raped, then no harm has been done. What is the harm in having these words in paragraph (d)? It would at least cover those few cases—and let us assume they are few—which are not covered by paragraph (a) but in which the doctor can find physical evidence of the fact that she has been raped.
I think, therefore, that to leave them out would be to exclude the possibility of an abortion in cases in which the noble and learned Viscount and I both agree an abortion should be possible. But let us think for a moment what risk we are running in forcing a woman to have a child under circumstances of rape simply because those words are not included in the Bill. We have heard recently of some maniac, presumably, who has gone about the country and raped three married women in one day; and we have read reports in the Press of other cases in which four women have been raped.
542 Unfortunately, their names were given. These women are to be forced to bear a child by a person whom they do not know, and who may be a maniac—at any rate, an undesirable person to be the father of the child.
Admittedly there are few cases only; but these women are to be forced, against all their instincts, to have this baby, this child they cannot possibly love or want to maintain and whom, in many cases, they would try to get rid of by adoption or by other means at the earliest possible moment. The noble and learned Viscount does not want that state of affairs; he does not want that girl to have the child any more than I do; but he still insists, even if this were to apply to only one or two cases, that this provision should be left out, and that there should be the possibility that a woman who has been raped and who cannot come under paragraph (a) should have the child. I cannot think that the Committee will accept that doctrine.
I want to repeat what I said earlier. If this should happen to any of those near and dear to us, we should not stand on finesse and say that this case was covered by paragraph (a). We should secure an abortion by any means open to us; and we should be right to do so. I hope that the Committee will allow these words to remain in the clause.
THE LORD BISHOP OF EXETER
I support this Amendment on principle and on the practical grounds given by the noble and learned Viscount, but I do not propose to deploy the argument again. It has become apparent, during the course of the prolonged debate on this clause, that what divides the two sides of the Committee on this matter is not that one side has deep compassion and humanity and the other cold insensitivity; the difference lies in the value which one side and the other put upon the human fœtus, the value which is to be attached to what is, on any showing, a potential human life. It seems to me that as the debate has gone on the value attached to the human fœtus has been continually diminished, so that it is now to be subordinated almost to the mother's mere convenience. Indeed, it has been pointed out that the logical conclusion of some of the speeches made this afternoon is 543 That any pregnant woman should be entitled to an abortion on demand, simply on the ground that she does not want to bring her child to birth.
I think that that is the logical conclusion to reach, once you abandon the principle contained in paragraph (a), that the only ground on which abortion should be considered justified is the consideration of the mother's medical and physical health "before at and after" the birth of the child. Once you leave that principle I think you end logically in abortion on demand. I do not therefore intend to oppose any more of these clauses. It is apparent to me that your Lordships have made up your minds that you wish to go on beyond the one principle which I think safe. Therefore, I shall say no more but would ask the Committee leave to be allowed not to move Amendment No. 11 which stands in my name. I reserve the right to oppose the Bill in to to when it comes from the Committee.
§ BARONESS SUMMERSKILL
I did not believe that I should ever listen to a representative of the Church of England arguing that a girl who had been raped (even if she was below the age of 16) should be compelled to have her baby.
§ BARONESS SUMMERSKILL
I would remind the Committee that a girl who has been raped has a child which has been conceived in loathing, hatred and fear. We must recognise that background. The mother's human and maternal rights have been violated. The whole thing has been done by force. The whole thing has been done in the most ugly circumstances and the child is doomed to a loveless childhood. Nobody will adopt it. Let us think of the future. We have been told time and again by the noble Earl, Lord Iddesleigh, that there are homes for these children; but we are now talking of a child that nobody wants, the child of a rape. Why should a woman be condemned to bear a criminally begotten child?
I want to remind the Committee that the law punishes rape as a serious crime. It helps victims of an ordinary crime, of an assault, to the extent that they will be recompensed financially. Is not the victim 544 Of a rape deserving of our maximum help? No financial compensation can meet this case; but we can offer the best that science has devised. While the body of the child born as a result of rape may not be deformed, it is certain it will have some psychological trauma, because all its life it will try to compensate for the awful background of its conception.
When we consider how the law should approach the question of the rape of a girl, do not let us look at it objectively, do not let us think just of a girl in a slum who has met a complete stranger who has assaulted her. I suggest, as did my noble friend, that we think of the position as if this had happened to a girl whom we know and who has been savaged by a Criminal psychopath—for that is the definition of the men who are generally responsible for rape. They are criminal psychopaths; their genes are the worst possible. I have been told time and again by medical doctors of prisons that other criminals in prison are instinctively aware of the vile potentialities of the criminal psychopaths, who are regarded in prison as untouchables. The train robbers, about whom we read every day, would have nothing to do with the criminal psychopath. Are we to permit an innocent girl who has been violated by a criminal psychopath to go to term with a child which is the product of this man's tainted sperms?
§ VISCOUNT BRENTFORD
I wonder if I might add a few words from the point of view of a member of the same profession as that of the noble Lord whose Bill this is. I am rather surprised that the noble Lord should offer us this particular provision in the Bill because he knows as well as I that rape is an exceedingly serious criminal offence. He also knows as well as I that it is one of the fundamental principles of our law that a person is innocent until proved guilty of an offence. By the introduction of these words in the Bill, the noble Lord anticipates the result of a trial for a criminal offence, because he is proposing that it shall be open to a doctor to take certain action resulting from a rape. Upon whose word can the doctor decide whether or not a rape has been committed? Surely, it can only be on the word of the patient. Is this not an 545 Open invitation to every girl who has got herself into the family way, voluntarily or not, to come along to a doctor and say, "I have been raped "? He will then say," Who raped you?" She will have to name some person or the other who will immediately be charged with the offence, of which he probably has no knowledge whatsoever.
I have considerable sympathy with the expressions which fell from the right reverend Prelate as to the extent to which this provision may in fact open the door to all kinds of undesirable consequences. If the effect of rape on a woman is to be such as the noble Lady described, there can be no question whatever that it is going to affect her mental health before, during or after the birth in such a way that a doctor would be fully entitled to carry out an abortion under paragraph (a). I therefore strongly support the Amendment.
§ 6.20 p.m.
§ LORD STONHAM
I do not think that there can be anyone (unless they would not permit abortion in any circumstances) who would not wish that it should be lawful to terminate a pregnancy which arose as the result of rape. That was the whole case put forward by my noble friend Lady Summerskill. Unfortunately, that: is not the question. Although I do not agree, wholly with what was said by the noble Viscount, Lord Brantford, he did at least outline some of the difficulties. It is not a question of detesting or wanting to bring to an end the consequences of rape. Unfortunately, it has not yet been possible to solve the difficult problem of how a doctor is to decide what is a genuine case of rape; and to await a prosecution or the conviction of an offender would in most cases delay matters until it was too late to perform the operation. In any case there would be no help for the woman unless the offender was caught. We might have a horrible case involving one of the criminals mentioned by my noble friend, but if he were not caught the poor woman or girl could not have an abortion under the law.
If you have abortion without safeguards you just encourage women to make allegations that they were raped and to name someone in order that an unwanted pregnancy might be terminated. 546 My noble friend Lord Silkin has appreciated this difficulty and seeks to lessen it by the proposals which he intends to put forward later. That would allow abortion on the ground of rape, if, and only if, it were supported by a medical certificate, presumably from one of the doctors who would certify the abortion, although that is not quite clear. The doctor must be consulted as soon as possible after the alleged rape and would have to confirm that there was evidence of sexual assault. But it does not appear that this provision removes the basic objection. It would include cases where there was no medical evidence of assault. My noble friend discussed the question of a girl under 16, and my noble friend Lady Summerskill explained about little girls. It is not a case of a girl under 16, but of a girl of 16 or 17 who may be raped as the result of having an evening out with a strange man. She might not know that she was pregnant, and would probably be too scared to tell anyone what had happened to her until some time later. How on earth could a doctor then certify or find evidence to show that she had been raped?
As I see it, the difficulty is that while everyone, or almost everyone, would wish that this matter should be resolved in the way suggested by my noble friend, the fact is that, by the method he proposes, at the very best quite a number of genuine cases would not receive help because they could not be proved. There would be other genuine cases, and a very confused situation would arise. I can only hope that we can give still further thought to this between now and the next stage of the Bill to see whether there is any way to meet a situation which we should like to resolve.
§ VISCOUNT DILHORNE
I listened with interest to what the noble Lord, Lord Silkin, said about this matter. I am not prepared to accept his assumption that cases of pregnancy following rape would not be dealt with, certainly in respect of young girls, and of older ones, under paragraph (a). I cannot conceive of a case where it would not be said that the consequences of those months during pregnancy, and maybe after the pregnancy, would be such as to cause a risk of grave injury to the health of the woman.
§ VISCOUNT DILHORNE
The noble Lady says, "Oh, no". I am not a doctor: she is. But the doctors to whom I have spoken on this matter have confirmed the view which I have put forward. It is no use the noble Lady trying to suggest that the question here is whether or not a woman who has been raped should be forced to have a child. That is not the issue at all.
§ VISCOUNT DILHORNE
If the noble Lady would listen, that is not the issue in this debate. By omitting the words "of rape or" from the paragraph (d) we do not exclude from the operation of this measure those pregnant as a result of rape. It is not a question of depriving those who are pregnant of the possibility, under the provisions of this Bill, of having their pregnancy legally terminated. The noble Lord, Lord Silkin, made a statement which, to me, was quite astonishing. He said that a fortnight after a rape had been committed there would be physical evidence of the fact that there had been a rape. I have prosecuted in many rape Cases, I have never before heard it suggested that a fortnight afterwards there is something that a doctor could see which would enable him to say that the woman had been raped. I have had letters recently from eminent doctors, Members of this House, who confirm the view that often after a rape there is no physical evidence at all. There is no physical sign which could be examined, so this is going to be most uncertain in its operation.
I listened with great interest to what the noble Lord, Lord Stoneham, said about this provision. I do not think that these words will do as they stand. Nor do I think the subsection in the next clause will do. I hope that the noble Lord will take it out, if he has any regard to the views expressed by the Government. Obviously it will not work; he has not got it right. I feel tempted, I confess, to follow the same course as that followed by the right reverend Prelate the Bishop of Exeter. He has put forward his view. I am disappointed, because the arguments I advanced on this and the last Amendment have been represented, quite wrongly, as if I was opposed to abortion being performed on pregnant girls under 548 16 who had been the victims of rape. That is not the case. In my view (I am not in the least convinced by the noble Lord that I am wrong about this) these cases are adequately covered by paragraph (a). In view of what the noble Lord, Lord Stonham, has said, I will take this matter to a Division. If I do not succeed on this Division, I will not make any further attempt to improve this Bill, and I will certainly do my best to defeat it on Third Reading and leave its imperfections as an argument for that.
§ 6.30 p.m.
§ LORD MOLSON
I should like to make an appeal to my noble and learned friend Lord Dilhorne not to persist in the attitude which he has just taken. I think I am right in saying that on this Bill he has been extremely helpful from the beginning. He was not able to accept the Bill in its original form, but expressed great sympathy with the main underlying principles. It was possible for him and the noble Lord, Lord Silkin, to agree on every clause of the Bill but not upon the extension of principle. But here there is so much agreement that I think it would be most unfortunate if, at this stage, he ceased to be as helpful and co-operative as he has been. I recognize that on this matter my noble and learned friend has a very strong case. The Government have indicated that they see great difficulty in devising any form of words which will give effect to the idea which the noble Lord has put forward, and I can understand that difficulty. After all, rape is of all gradations. It is not unusual for blame to rest on both sides. This is one of the most difficult branches of criminal law. I hesitate to express a view of this kind before such distinguished authorities, but that is the case.
Obviously, the use of the word "rape" in a Bill dealing with another matter presents extremely difficult practical points. The most obvious is the one already mentioned. It would clearly be impossible to justify an abortion under this paragraph before the rape had been proved. If an abortion took place because people in responsible official positions accepted the allegation that a rape had taken place, I can imagine the most serious and difficult consequences arising. While my noble and learned friend and 549 my noble friend Lord Brentford have advanced these serious practical difficulties, in which it is obvious the Government concur, my noble and learned friend has indicated that he thinks that the majority of cases of rape would be covered under paragraph (a), but admits that there might he a number which would not be covered, and he has definitely and emphatically stated that it would be his wish that no woman who had been raped should be obliged to give birth to a child who had been begotten in that way.
§ VISCOUNT DILHORNE
I never said that there were cases where pregnancy followed rape which, in my opinion, would not be dealt with under paragraph (a). I said that they would all come under paragraph (a).
§ LORD MOLSON
I thought that my noble and learned friend said "in the great majority of cases". I will alter the wording of my argument then, but not the substance of it. My noble and learned friend is anxious that the real point of human importance, which has been raised by the noble Lord, Lord Silkin, should be met. He is of the opinion that it can be met under paragraph (a). Clearly, there is doubt as to whether that would be so. At the same time we must all recognize that under the paragraph that we are discussing peculiar difficulties arise.
I would make an appeal to both noble Lords. I would suggest that my noble and learned friend should allow this point to go forward to Report stage, if the noble Lord, Lord Silkin, will undertake that these matters of difference will be looked at, and that, if the practical difficulties cannot be overcome, at that stage this provision should be withdrawn. If this suggestion is not acceptable, then I would suggest that the noble Lord, Lord Silkin, should drop this paragraph on Committee stage, on the clear understanding that the matter can be brought up again on Report.
In this Bill, we are going back very nearly to the old Victorian procedure of legislating on extremely difficult and controversial matters by resolution, as it was then called. Governments at that time put forward a number of resolutions and obtained the views on principle of 550 the House of Commons and the House of Lords, and when they had ascertained the views of the Legislature on matters of principle, in the light of that knowledge the Parliamentary draftsmen produced a Bill.
I am afraid that my speech has been a little disconnected, because I have been trying to think on my feet and to devise some way whereby, when this Bill has progressed so amicably and with such helpful and constructive suggestions from those who are opposed to it, we might prevent what would be really a great misfortune—that is, that at this stage, when the matter in dispute is not a big one, all co-operation should break down. Both my noble and learned friend and the noble Lord are agreed that it is undesirable that any woman should be called upon to bear a child which has been begotten as the result of rape. Surely it should be possible to continue the co-operation that there has been so far.
§ LORD SILKIN
May I say to the noble and learned Viscount, in all friendliness, that when he has had fifteen years of experience in Opposition, as I have had, he will become accustomed to not always being successful in the Amendments he has put down. I have often felt frustrated and absolutely certain that I was right, but I had to accept defeat. I have learned to accept it as a matter of routine So I hope that, if the House of is not always with him, he will be able to accept it.
May I thank the noble Lord, Lord Molson, very much for the suggestion he has made. I would agree to the first part, that the clause should stand as it is. I would agree to the second, that I should consider whether the criteria can be strengthened. But I cannot agree that, if I cannot strengthen them, I should withdraw the provision about rape. To that I could not agree—and I will tell the noble Lord why. In the first place, I think that there are cases of rape which are not covered by paragraph (a), and these cases ought to be dealt with. I think that the provisions which are included in the Bill, that a woman should have to report to her doctor as soon as practicable, and that there should be medical evidence of rape, are a sufficient protection. If the doctor cannot find any medical evidence, then, of course, he will not agree to an abortion on that 551 Ground, but, according to the noble and learned Viscount, he will still agree under paragraph (a). If the Amendment which I hope to move on the Report stage, which was suggested by the noble and learned Lord, Lord Parker of Waddington, is accepted, namely that these criteria in paragraphs (a), (b), (c) and (d) should be not alternatives but that a doctor could take account of more than one of them, then that will strengthen the position. Even if it saves one woman from having to give birth to an unwanted child under these awful conditions, then I think the inclusion of those words is worth while.
The noble and learned Viscount cannot be so sure that every single case is covered by paragraph (a). There will be cases where the girl's health, mental or physical, will not be seriously or gravely endangered. I do not say that she will not feel upset; of course she will. But some girls take these things better than others, and there will be a number of women who can even stand up to rape without serious danger to their life or their health. It is to those cases that I should like to have the opportunity of granting an abortion. If, in those cases, the test of the doctor is not good enough, then certainly I will consider whether the case could be strengthened. But I feel that we should leave this clause as it is, and certainly that I should not he under any obligation to withdraw the provision if I am not able to strengthen the safeguards that are contained in the Bill.
§ VISCOUNT DILHORNE
The noble Lord, Lord Silkin, has responded to the appeal of the noble Lord, Lord Molson, in the way of saying, "Leave the clause as it is", and, "I am not going to give any undertaking that if a more effective means cannot be found I will withdraw this particular provision". The noble Lord has made no attempt to answer the criticisms advanced by the noble Lord, Lord Stonham, on behalf of the Government on the procedure he has suggested. He has made no attempt to answer the criticisms of my noble friend Lord Brentford, or, indeed, to answer my criticisms on the practical consequences of the system he proposes—condemnation in advance of someone who has been accused of the crime of rape. 552 It is all very well to assume that the criminal offence has been committed. It is all very well for the noble Lord to assume that a fortnight after the commission of the rape there is evidence available upon the victim to show that she has been raped. I do not think this is the case, or, if it does happen, I believe it will be very seldom indeed.
I am not prepared to withdraw this Amendment on the undertakings the noble Lord has given, because he has really given none, although he has had the clearest and strongest case made by the noble Lord, Lord Stonham, that this particular provision in the form in which it is just will not do. It can do nothing but injustice. I will press this Amendment to a Division, whatever the consequences, because it is so clearly wrong. It will not work. Although I am in agreement with the noble Lord, as indeed is the whole Committee, that where you get a pregnancy following upon rape it should be possible and lawful to get that pregnancy terminated, that is not how this paragraph will operate; that will happen under paragraph (a).
I am in two minds about what future course I should take on this Bill. It has gone so far—and far beyond what I think it ought to have gone, because I do not believe, with the additions it has had, that it stands much chance of reaching the Statute Book; but we shall see—and it has become so controversial a measure that I think it is likely to be rejected. Therefore, as it has gone so far, and as it still contains extreme provisions in the future, I wonder whether there is much point in seeking to improve it. I will press the Amendment, and I reserve my decision as to what steps I might take hereafter. But I want to make it clear to the noble Lord, Lord Silkin, that at the present moment I intend to do my best to defeat the Bill on Third Reading if it is still in the same form.
§ LORD STONHAM
I do not want to add anything about the discussion that has taken place or about this Amendment, but I want to point out to the noble and learned Viscount, Lord Dilhorne, that if he takes no further part in the Committee stage it will create difficulties. For example, the right reverend Prelate the Bishop of Exeter has indicated that he 553 does not propose to move the Amendment standing in his name. That will put me, as representing the Government in this matter, in difficulties. It will impose upon me the duty of making a speech on the Motion that Clause 1 do stand part, because otherwise there will be no opportunity to point out difficulties, of which I am sure my noble friend Lord Silkin and the Committee would be glad to have notice before the Report stage, in order that they may be put right.
§ Resolved in the affirmative, and Amendment to the Amendment agreed to accordingly.
§ 6.55 p.m.
THE CHAIRMAN OF COMMITTEES
I now have to call Amendment No. 8, which has been deferred until after the consideration of Amendments Nos. 9 and 10. Amendment No. 8 on the Marshaled List is in the name of the right reverend Prelate the Bishop of Exeter.
§ VISCOUNT DILHORNE
I do not know whether the right reverend Prelate said that he was not going to move it. I do not know whether it is in order for me to move it so that the noble Lord, Lord Stonham, can make his comments on the mental deficiency part of the clause, which is defective in some respects. He rather indicated that he would be deprived of an opportunity of doing so. I do not know
§ It will be most unhelpful if we do not get on with the Bill, which I believe is what the noble and learned Viscount would wish to do.
§ 6.47 p.m.
§ On Question: Whether the said Amendment to the Amendment (No. 10), shall be agreed to?
§ Their Lordships divided: Contents 40; Not-contents 31.553
|Aldington, L.||Emmet of Amberley, Bs.||Newall, L.|
|Amulree, L.||Ferrers, E. [Teller.]||Newcastle, Bp.|
|Auckland, L.||Ferrier, L.||Oakshott, L.|
|Audley, B.||Fortescue, E.||Raglan, L.|
|Birdwood, L.||Goschen, V.||Rea, L.|
|Brentford, V.||Greenway, L.||Reay, L.|
|Chester, Bp.||Grenfell, L.||Rowallan, L.|
|Colville of Culross, V.||Hertford, M.||St. Aldwyn, E.|
|Craigmyle, L.||Howard of Glossop, L.||St. Just, L.|
|Daventry, V.||Iddesleigh, E.||Strang, L.|
|De La Warr, E.||Longford, E.||Swansea, L.|
|Denham, L.||Lytton, E.||Thurlow, L.|
|Dilhorne, V.||Massereene and Ferrard, V. [Teller.]||Ypres, E.|
|Addison, V.||Hurcomb, L.||Parker of Waddington, L.|
|Archibald, L.||Lambert, V.||Saltoun, L.|
|Asquith of Yarnbury, Bs.||Leatherland, L. [Teller.]||Shepherd, L.|
|Balerno, L.||Listowel, E.||Silkin, L.|
|Collison, L.||Lucas of Chilworth, L.||Snow, L.|
|Crook, L.||MacAndrew, L.||Strabolgi, L.|
|Effingham, E.||McCorquodale of Newton, L.||Strange, L.|
|Elliot of Harwood, Bs.||Mitchison, L.||Summerskill, Bs.|
|Falkland, V.||Molson, L.||Taylor, L. [Teller.]|
|Gifford, L.||Morrison, L.||Willis, L.|
|Haire of Whiteabbey, L.|
§ whether is would be convenient now or perhaps at a later stage.
THE CHAIRMAN OF COMMITTEES
May I suggest that, if the proposal is to resume the House, the noble and learned Viscount could make his statement on the Motion that the House do now resume?
§ VISCOUNT DILHORNE
That is true, but if need be someone else can move it. I am sorry if I have not made myself clear. I was not moving that the House be now resumed. I thought that that was going to be done at this late hour, and perhaps it might be convenient to do so, but I did not think it would be for me to do it. I was going to move the Amendment in order to enable the noble Lord, 555 Lord Stonham, to make his comment; he said that otherwise he would have to make observations on the Motion that the clause stand part. I think it might take a considerable time, and, therefore, if the noble Lord, Lord Silkin, was going to move that the House be resumed I would not move the Amendment.
§ LORD SILKIN
I was hoping that we could deal with Clause 1. I was hoping that the noble and learned Viscount would not mind my expressing that desire, because if the right reverend Prelate was not moving Amendment No. 8 we should have disposed of the Amendments. If there was any desire to discuss "Clause 1 stand part", that is another matter. I was hoping that, at any rate, we should have got rid of the Amendments to the clause, and then I would he prepared to move that the House do resume. I think we ought to get rid of those Amendments.
§ VISCOUNT DILHORNE
Then I shall move the Amendment in the name of the right reverend Prelate. It is to leave out paragraph (d). There are several questions of considerable difficulty which ought to be answered, in respect of what remains of paragraph (d), which we have not discussed. The noble Lord will see that "defective" is defined by Amendment No. 18 as:…a person suffering from severe abnormality within the meaning of section 4 sub-section (2) of the Mental Health Act 1959…".That Section of the Act reads as follows—
§ LORD SILKIN
I do not want to interrupt the noble and learned Viscount unduly, but would that not appropriately be discussed on the Motion that the clause stand part? There is no appropriate Amendment.
§ VISCOUNT DILHORNE
I am moving the Amendment because I think we ought to have a special discussion on this issue. I am afraid it will take a considerable time, and I did say that I was perfectly prepared not to move it now if the noble Lord were to move his other Motion. But the noble Lord said "Let us get on", so I am seeking to do so. But I am perfectly prepared to give way to the noble Lord. There are real points here which ought to be debated.
556 As I was saying, the definition under Clause 4 (2) of the Mental Health Act 1959 is:…'severe subnormality' means a state of arrested or incomplete development of mind …of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation, or will be so incapable when of age to do so.So the noble Lord, by the first words in paragraph (d), is contemplating a very high degree of defectiveness. With that I think we would agree. I would ask him what consent is required in such a case. No termination is going to take place without the consent of the woman concerned; and in the case of a woman having that high degree of severe subnormality, is this going to be done on her consent when she is incapable of guarding herself against serious exploitation, or is this going to be decided just by a doctor?
The paragraph then goes on to say that the pregnancy can be terminated where it is the result of intercourse as the result of an offence under Section 128 of the Mental Health Act 1959. It is worth looking at that Act. That Act makes it an offence for an officer on the staff of, or employed in, the hospital or mental nursing home to have unlawful sexual intercourse with a woman receiving treatment for mental disorder in that hospital or home. It goes on to make a provision for persons who are guardians; and then it also says:It shall not be an offence under this section for a man to have sexual intercourse with a woman if he does not know and has no reason to suspect her to be a mentally disordered patient.Here again we have the difficulty of two doctors having to decide whether or not a criminal offence has been committed, and presumably in this case without any regard to the degree of mental defectiveness of the woman.
Years ago a distressing case came to my notice of a mentally defective girl, of a very slight degree of defectiveness, who was allowed out as a domestic servant in one of our big cities. I will not mention the name. She was allowed out for a great deal of time. A young man fell in love with her and was devoted to her, and he found it quite impossible to get permission to marry her. I emphasize that she was very slightly mentally 557 Defective. The young man quite deliberately, with her consent, had intercourse with a view to her becoming pregnant. She became pregnant, and that was the only way that he thought he had of bringing this matter out in the open. In due course the question arose of prosecuting him for this. There was no concealment by him of what he had done or what the object was, and in the end, instead of being prosecuted, he was allowed to marry this slightly defective girl to whom he was devoted. If this Bill in its present form had then been enacted I suppose that baby's life could have been terminated. Is that right?
I think this particular provision calls for more thought and more consideration. I can imagine that most cases concerning mentally defective persons, whether the pregnancy was caused as a result of a criminal offence or by any other means, could fall to be dealt with under paragraph (a), but I feel concerned about the width of the second part of this provision. The second part applies to mental defectiveness of any degree, however slight, and that, I think, is difficult to justify.
I hope I have not taken up too much time. I did not put down an Amendment because I was not quite sure what the case for these particular provisions was, but I think they are worthy of serious consideration. I have now raised them, and if the House were to resume at this time there would be the advantage to the noble Lord, Lord Stonham, that he would be able to give further thought to them, as also would the noble Lord, Lord Silkin, because I think the position with regard to mental defectiveness is difficult. I beg to move.
Amendment to Amendment moved—
Leave out paragraph (d).—(Viscount Dilhorne.)
§ LORD SILKIN
I think there is a general desire that the House should resume at this stage. I agree that the noble and learned Viscount has put forward considerations which certainly I could not deal with at this time and which I do not think the Committee could fully absorb. Therefore, I move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Silkin.)
§ On Question, Motion agreed to, and House resumed accordingly.