HL Deb 23 May 1966 vol 274 cc1208-50

5.0 p.m.

Order of the Day for the House to be put into 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.]

Clause 1:

Medical termination of pregnancy

1.—(1) Subject to the provisions of this section, a person shall not be guilty of an offence or crime of abortion by reason of the termination of a pregnancy by a registered medical practitioner if the practitioner is of the opinion, formed in good faith, that the termination of the pregnancy is necessary on any one or more of the following grounds, that is to say—

(b) there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to deprive it of any prospect of reasonable enjoyment of life;

or that the pregnant woman is a defective or became pregnant while under the age of sixteen.

(2) Except in a case where the practitioner is of the opinion, formed in good faith, that the termination is immediately necessary in order to save the life of the pregnant woman (and certifies his opinion in writing either before or after carrying out the treatment), the following conditions must be complied with in connection with any treatment for the termination of a pregnancy, that is to say—

(a) the treatment must be carried out by a practitioner who holds an appointment as registrar or in a superior capacity under a hospital board, being an appointment involving the practice of gynaecology;

(c) the opinion mentioned in subsection (1) of this section must be certified in writing by the practitioner who carried out the treatment before the treatment is begun;

(e) there has been before treatment an application in writing by the pregnant woman, or, if under sixteen years of age, of the pregnant girl and one of her parents or of the pregnant girl and her guardian for the termination of the pregnancy.

LORD BRAIN moved, in subsection (1)(b), to leave out all words after "as to" and insert "be seriously handicapped". The noble Lord said: This Amendment does not in any way conflict with the spirit of the Bill; it merely attempts to make its intention clearer, and therefore easier to carry out. In my view, it is an impossible task for a doctor to decide what constitutes reasonable enjoyment of life for an unborn child. Not only is it impossible, but, if it could be carried out, if might well conflict with what I understand to be the intention of the noble Lord, Lord Silkin, and other supporters of this Bill.

One thing which I am sure is in their minds is the reasonable fear of parents. in certain circumstances, that a child may be born to them who is severely handicapped, physically or mentally. But the test of the prospect of a reasonable enjoyment of life is not an adequate test of the prospect of serious mental or physical handicap. A mentally subnormal child whose existence is a continuous cause of stress to its parents may, nevertheless, so far as one can judge, be perfectly happy—indeed, happier than many normal people—just because its mental state shields it from the stresses and distresses to which normal people are exposed. Moreover, whereas the prospect of reasonable enjoyment of life is not something which a doctor, in my view, is capable of calculating, he is perfectly familiar with the concept of serious mental or physical handicap. I beg to move.

Amendment moved— Page 1, line 17, leave out from ("to") to end of line 18 and insert the said words.—(Lord Brain.)


I am most grateful to the noble Lord for having moved this Amendment. I am quite satisfied that it is an improvement on the wording of the Bill and I am happy to accept it.

On Question, Amendment agreed to.

LORD SILKIN moved, in subsection (1), after paragraph (b), to insert: () the pregnant woman's capacity as a mother will be severely overstrained by the care of a child or of another child as the case may be;".

The noble Lord said: This is the third attempt that I have made—I hope this time a successful attempt—to introduce into the Bill a concept which I think most of your Lordships would like to have in the Bill. It is the concept of a woman who is pregnant, and who feels that she is unable to cope with the child when born or with another child. I have in mind particularly the case in regard to which I have had so much correspondence, that of the woman with a large family, some of them grown up, who finds herself pregnant at the age of 40 or more, and who feels that life will be impossible with another child which, once more, she has to rear. In some cases she may even be a grandmother. Such a woman is quite unable to give such a child the care and attention that it should have, or to bring it up as it should be brought up. She is the judge of that.

There are some women who have had large families and who can quite well cope, and no difficulty arises. But where a woman herself feels that she cannot cope—I would submit that she is the best judge of that—she should be entitled to go to her doctor and, if he is satisfied, and the consultant is satisfied, that it is the case that she would be severely overstrained by the care of a child, then it should be possible for her to get an abortion.

I am not now, as I did earlier, putting forward the case of a woman of bad character or inadequacy. In deference to the views of the House on an earlier occasion, I have withdrawn from that. It is now largely a physical matter. It is not a case of a woman whose life is endangered, or who would be gravely affected in health by having another child; it is simply the case of a woman who feels that she just cannot cope and cannot do justice to another child, or, in special cases, even to one child. But in all these cases she has to satisfy two doctors. She has to make the application and, if having regard to her condition and her circumstances they are satisfied that she is not in a fit state to do justice as a mother, then I submit that that is a proper case for an abortion.

I think in the earlier cases there was the difficulty, which I recognise, that one was asking the doctors to judge on the basis partly of a woman's character. I gave certain instances which were, I know, ridiculed—unfairly, because the strong cases were not referred to at all—but these are eliminated now from the provisions of my Amendment. There is now no question of a woman being inadequate because she is a woman of bad character. That is quite irrelevant, and it is not for the doctor to go into that at all. All he does go into is the woman's physical condition, her mental condition, her environment, and generally whether she is fit to take care of a child and to do justice to it when born. I hope that this new, modified, much milder Amendment will be acceptable to your Lordships. I beg to move.

Amendment moved— Page 1, line 18, at end insert the said subsection.—(Lord Silkin.)


Surely this Amendment is the "inadequacy" Amendment in other words. Who really is going to tell whether a pregnant woman's capacity as a mother can be severely overstrained? if it is severely overstrained, surely it comes under subsection (1)(a); and if there is any danger to the health of the mother it will come under that paragraph. This Amendment seems to me to be far too wide, and to be exactly the same as a previous Amendment put in other words, and I hope that it is not accepted.


I should like modestly to congratulate my noble friend, and to hope that he will be third time lucky. He says that this is the third attempt that he has made to find a form of words which will not be open to the objections made to the previous inadequacy Amendment. I think the crucial difference between this and the previous Amendment was shown when my noble friend spoke entirely in terms of the woman's own decision. She, he said, will be the one to judge. The whole of his speech in commending his Amendment started from the woman's own wish to have an abortion. The earlier "inadequacy" Amendment was quite open to the construction that some other person would make this decision—namely, that the doctors concerned would make the decision—and that the woman herself would be a mere passive, consenting party. There is a very great difference between the two forms of words, and I do not share the fears of the noble Lord, Lord Grenfell, that this is the old story in a new form.


May I suggest this point also? One does not want to repeat what one said last time, but I ask your Lordships to consider this aspect as well. The noble Lord who has just spoken said, how can the mother decide whether or not she is an adequate mother? It will not take many experts to decide; there are friends and welfare officers surrounding her to decide whether the mother or the home is adequate. We must realise that the inadequate mother also may stem from an inadequate home—it is overcrowded, she is burdened perhaps by too many children, and feels she is quite incapable of doing justice to them all. We should also consider the lot of the child. If this Bill gets on the Statute Book with this Amendment, I feel that it will be a contribution to our social services calculated to save an unwanted child from misery, and possible delinquency. I believe it is the birthright of a child to be wanted. Not for one moment do I suggest that this Bill, limited as it is, will achieve this, but it will go some way to remove the distress of children compelled to join an already overcrowded household.

I believe that we have a moral obligation to help children to fulfil themselves. Should not our obligation become extended to the unborn child? I regard it as sheer hypocrisy, indeed humbug, to spend colossal sums on welfare services, reformatories, prisons, to produce reports ad nauseam on the psychological effects of a bad home on a child, and yet to acquiesce in a system which denies relief to an over-burdened expectant mother, who knows that she is quite incapable of doing justice to another child. Therefore, I hope that in accepting this Amendment your Lordships will recognise that we have a duty, not only to the mother who asks for this relief but to the unborn child.


Like my noble friend Lord Grenfell, I very much hope that your Lordships will not accept this Amendment. I very much agree with the noble Baroness who has just sat down that we have a duty to the unborn child. Surely the general feeling in the Committee towards this Bill has been that abortion should be allowed only in cases where it was the only solution for the welfare of the mother or of the child. In any case that I can foresee coming under this new Amendment, surely the adoption of the child would be a very much better solution. I am told that at present the numbers of people who want to adopt children amount to very much more than the children to be adopted. If a child is conceived by a perfectly healthy mother and there is no reason why the child itself should not be healthy, surely in such cases adoption of the child is a very much better solution.

5.13 p.m.


If I might intervene for one moment, I am grateful to the noble Lord, Lord Silkin, for his efforts to substitute an Amendment which is better framed than was the one dealing with inadequacy in the Bill before the last Parliament, but I am still doubtful about the wording. I wonder how the word "capacity" is to be interpreted. It seems to me that this may suffer to some extent from the same defect as the word "inadequate" did in the Bill which was before your Lordships in the last Parliament. For this reason I am doubtful about this Amendment. But I have another reason—if I may say so, with sincere deference to the noble Lord to whom so many people are grateful for his efforts to bring about a reform of this archaic law. In regard to this Amendment, if the noble Baroness, Lady Wootton of Abinger, is right that this amounts to abortion at will—which I think is what she indicated; "according to the wishes of the mother", I think were her exact words—if that is the correct interpretation, it will make it difficult for some of us who are genuine supporters of the Bill, because that is a limit beyond which I, personally, could not go. I could not accept that we should be legislating in this Bill for abortion at will of a mother.


I think I ought to make it plain that I was not reading this Amendment as making possible abortion at will. What I wanted to emphasise was that it would he abortion at the request of the mother in certain restricted circumstances. These circumstances are described in successive clauses of the Bill. Outside those circumstances abortion would not be legal. I ought to add that my support of this Amendment has, to some extent, been conditioned by what happens to a later Amendment standing in the name of the noble Lord, Lord Royle. If that Amendment is carried, I should feel very uneasy about the present one; but, since that Amendment is subsequent, I shall at the moment give my support to the present one.


As one of the supporters of the clause in the original Bill which contained the word "inadequacy", I can only say that I strongly support this Amendment which has been moved by the noble Lord, Lord Silkin. I appreciate, as I am sure do all noble Lords, that he has gone a great way to meet the objections which were raised to the wording in the original Bill. But, unless I have missed it, I think that no mention has been made of one of the serious problems which faces society at present, and that is illegal abortion. As Lord Silk in said on Second Reading, the vast majority of letters which he has received upon the subject from women concerned have been very much in line with this suggested Amendment.

Noble Lords will remember reference in the debate in the last Parliament to the work of Sir Dugald Baird in Aberdeen, and I recall a speech by the noble Lord, Lord Taylor, in which he pointed out that the situation in Scotland was, in a measure, different from the situation in England and Wales. If I remember his remarks correctly, he said that it must be remembered that in Scotland a doctor does not operate under the shadow of the coroner. That being the case, the fact is that what is set out in this Amendment is what is actually taking place in an area in Scotland, where figures show that the illegal abortion rate has gone down to such an extent as almost to have disappeared. If only for that reason, I will support the noble Lord's Amendment.


As one who is in sympathy with the purpose of this Amendment, may I say that I am still not happy about its actual wording. By accepting this Amendment we are introducing a new criterion as grounds for abortion; in other words, a criterion which may be subject to fair representation or to misrepresentation. We are adding as additional ground for abortion a woman's capacity as a mother. That, to my mind, may be interpreted very widely, and, as I say, I am fully in sympathy with the motive of the Amendment. But are we justified in adding, at this stage, a new additional ground for performing an abortion? If my noble friend Lord Silkin would forgive me, I should like to suggest that the wording of this Amendment might have been considerably improved if his provision had been, "the pregnant woman's health would be severely overstrained by the care of a child or another child". I think that there we are going along on an absolute basis for judging grounds for abortion. But here, although I am fully in sympathy, I am a little uneasy as to the degree to which these words "woman's capacity as a mother" may be liable to misinterpretation.


I rise to support this Amendment. It seems to me that the word "capacity" here is very specific and covers what one might well call the classic case; in fact, the case which has actually entered the nation's folklore in the shape of the old woman who lived in a shoe. There, surely, one had a case of a woman who, to begin with, was too old for childbearing, who was very badly housed and who had too large a family. Surely, these are all criteria which would be considered in the matter of an abortion. If we can, with the aid of an Amendment of this kind, diminish this ill which has got into our folklore, it will be very well worth while.


I very much hope that what has been said in this debate to-night will encourage the noble Lord, Lord Silkin, not to press this Amendment. I think that the point is covered by paragraph (a) of subsection (1). I feel that if we are going to put down more and more criteria for the performance of legal abortions we shall make the law more complicated in the future than it is at the present time. The case has been mentioned of Sir Dugald Baird, in Aberdeen, and it has been said that he was able to do his work because in Scotland doctors did not operate with the fear of the coroner. That may be true, but it is certainly the position in England as well. I have had one or two friends—one, in particular, who unfortunately died the other day—who did in one part of London exactly the same kind of work as Sir Dugald Baird was doing. There was certainly no fear of the coroner in my friend's mind, and certainly, I am sure he would feel, as other people would feel, that it is not necessary to be too specific in covering abortion, and that the problems which have been mentioned in connection with this Amendment are really covered by paragraph (a).


I should like very strongly to support what the noble Lord, Lord Grenfell, has said. I do not believe that this Amendment is a help, for the reason that I think the debate has clearly shown that we are not agreed about what is meant by "capacity". "Capacity" is a very useful word—I might say a capacious word. As the noble Viscount said, it covers a great many things, including the case of the old woman who lived in a shoe. But while I know for certain what I mean by the capacity of a cathedral, I am less certain what is meant by the capacity of an architect. Does it mean ability to design a lot of cathedrals all bad, or one good one? In other words, if "capacity" is applied to an architect, does it mean capacious or capable; and, if the latter, in what sense is he capable?

I think there are two possibilities. If this is a matter of health, and a doctor thinks that a woman should be capable of bearing a child, he may be wrong. Doctors frequently are wrong, but it is their duty to make decisions on matters of health. It is not their duty to make decisions on matters of who is a capable mother, in the sense of being a good mother. A doctor is entitled to tell me whether I have good kidneys. He is not entitled, certainly, to eliminate me from this planet on the grounds that I do not have a good record as a social reformer or a good degree at a university. I think that we must be very careful, if we are trying to make the law clear. As she always does, the noble Baroness, Lady Summerskill, made what to me was an extremely moving speech, but it was on a slightly different subject—the rights of the unborn child to be aborted. She was using the word "inadequate" and, I think, supporting what was said by the noble Lord, Lord Grenfell, in that he thought this Amendment was an attempt to bring the same meaning into another word.

I believe that if we decided that abortion should be a spiritual matter of capacity, or else a matter which only doctors were entitled to decide, we should in either case get a more satisfactory word than "capacious", which may mean one or the other. I very much admire the persistency and complete integrity of the noble Lord, Lord Silkin, in trying to get a word which satisfies, but I feel that this word would satisfy no one.


As the only occupant of this Bench able to come to this debate this afternoon, I very much hope that the arguments put in the hope that the noble Lord, Lord Silkin, will not press this Amendment may gain the support of the House. The views as expressed by the noble Lords, Lord Segal and Lord Amulree, seem to me to represent a very strong case for resisting this Amendment.


I do not feel at all that the discussion which I have heard justifies my withdrawing the Amendment. I have listened very carefully, and, frankly, if I had been convinced, I should have been quite prepared to withdraw it; but I am certainly not convinced. Two noble Lords have put forward the argument that this point is already covered by subsection (1)(a). If this is already covered, then I take it that they are in favour of the principle but consider the Amendment unnecessary.

Let me just read out what subsection (1)(a) says, and see whether it is covered, because they are right that we do not want any duplication in this Bill. The words in paragraph (a) are: the continuance of the pregnancy would involve serious risk to the life or of grave injury to the health whether physical or mental of the pregnant woman". It is not part of my case that in this Amendment I am dealing with cases where there is a grave risk to the life of the mother, or grave injury to her health. I am putting forward an entirely different reason for this Amendment; and that is that the woman just could not cope with another child; that, in the words of the Amendment, her "capacity as a mother will be severely overstrained." So I hope that the noble Lord, Lord Grenfell, who appears to favour the principle, and the noble Lords who supported him, will feel that subsection (1)(a) does not, in fact, cover the case I have in mind.

Then there was some criticism of the word "capacity" and one noble Lord tried to translate that into capability: that it refers to a woman who is not capable. That is not my point either. Whether or not she is going to be a capable mother is beside the point. There are a great many mothers who are not capable, in the sense of being good mothers. This is a case where she is going to be severely overstrained by the care of a child, regardless of her capability. She may be a very capable woman indeed, but she just cannot cope; and there are thousands of women like that who feel that another child would just he the limit. So I do not feel that that is an argument for not supporting the Amendment. If any noble Lord can find a better word than "capacity" at a later stage of the Bill he is perfectly entitled to put down an Amendment accordingly, but so far these are the best words I can find.

There was also a suggestion (I do not know whether it was persisted in) that this Amendment would open the door to women having abortions freely on demand. But, of course, as my noble friend Lady Wootton of Abinger has pointed out, the woman has not only to desire an abortion; she has to satisfy two doctors. They can refuse: they are perfectly at liberty to do that. If they refuse, then, so far as she is concerned, that is the end of it unless she goes to a back street and gets someone to carry out an abortion; or, if she has the money and knows the right person to go to, unless she goes to Harley Street and puts down the money. But it is not a question of opening the door so widely that anybody can get in on demand.

Finally, there was the point that the noble Lord, Lord Denham, made: that you can always have the child adopted. Is that really a satisfactory way of approaching this matter: that a woman must go through all the pangs and anxieties of childbirth in the hope that when the child is born somebody will come and take it away from her? I should have thought that, from a psychological point of view, that was the greatest injury you could do a mother—to tell her in advance that she must give birth to this child but that it will be all right on the day, somebody will come and relieve her of it and she will never see it again. I should not have thought that that was a suggestion that could be put forward seriously in answer to this

Amulree, L. Fortescue, E. Moyne, L.
Archibald, L. Gaitskell, B. Newall, L.
Arran, E. Gardiner, L. (L. Chancellor.) Plummer, B.
Arwyn, L. Gifford, L. Ponsonby of Shulbrede, L.
Asquith of Yarnbury, B, Greenway, L. Raglan, L.
Attlee, E. Hawke, L. Reay, L.
Auckland, L. Hertford, M. Royle, L.
Birdwood, L. Hilton of Upton, L. St. Davids, V.
Blyton, L. Howick of Glendale, L. Segal, L.
Brockway, L. Huntingdon, E. Silkin, L.
Byers, L. Ilford, L. Sorensen, L.
Champion, L. Kirkwood, L. Stocks, B.
Colwyn, L. Latham, L. Stonham, L.
Cranbrook, E. Leatherland, L. [Teller.] Strang, L.
Dudley, L. Lindgren, L. Strange, L.
Effingham, E. Listowel, E. Strange of Knokin, B.
Elliot of Harewood, B. Long, V. Summerskill, B.
Erroll of Hale, L. McCorquodale of Newton, L. Thurlow, L.
Faringdon, L. Monson, L. Wade, L.
Ferrier, L. Morrison, L. [Teller.] Wootton of Abinger, B.
Barrington, V. Craigmyle, L. Longford, E.
Brain, L. Denham, L. [Teller.] Lytton, E.
Brock, L. Emmet of Amberley, B. Norwich, Bp.
Clifford of Chudleigh, L. Goschen, V. Oakshott, L.
Conesford, L. Grenfell, L. [Teller.] St. Oswald, L.

Resolved in the affirmative, and Amendment agreed to accordingly.


With your permission, my Lord Chairman, may I say that the noble and learned Viscount, Lord Dilhorne, has asked me to apologise to the Committee? He would have liked to move the next Amendment, No. 3, and I should have liked him to do so as well, but he has another engagement before a Royal Commission. He therefore proposes to move it at a later stage.

5.41 p.m.

LORD BRAIN moved, in subsection (2), after "of the pregnant women" to insert: or becomes necessary in the course of a surgical operation undertaken for a purpose other than the termination of pregnancy".

The noble Lord said: I beg to move the Amendment standing in my name. Its object is to carry out the intention of this subsection better than its present form carries it out.

Amendment. I hope your Lordships will, on consideration, support this Amendment and let it go forward.

5.32 p.m.

On Question, Whether the said Amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 15.

I understand that the subsection was introduced to deal with a situation in which a doctor—not a gynæcologist—a surgeon, for example, finds himself having to terminate a pregnancy as part of a surgical emergency. A provision that such a termination is immediately necessary in order to save the life of a pregnant woman would apply to some such cases, but not by any means to all. The termination of a pregnancy might be necessary for the completion of an operation begun for some other purpose and without the knowledge that the patient was pregnant; yet the surgeon could not be certain the patient would die if the operation were not completed. The object of the Amendment, therefore, is to make provision for this type of situation and to avoid exposing such doctors to the fear of prosecution because, although not gym-ecologists, they have terminated a pregnancy for the welfare of the patient though not necessarily in order to save her life.

Amendment moved— Page 1, line 23, after ("woman") insert ("or becomes necessary in the course of a surgical operation undertaken for a purpose other than the termination of pregnancy").—(Lord Brain.)


Once more I am indebted to the noble Lord, Lord Brain, for putting forward this Amendment. I feel it is a great improvement on the existing provision; and I am happy to accept it.


Before my noble friend concludes, may I say that I entirely concur with his agreement with the principle of the Amendment which the noble Lord, Lord Brain, has put forward, but I am bound to say that there are difficulties, not of principle, which are capable of being overcome by another Amendment. I do not know whether my noble friend, therefore, would feel that the Amendment should now be accepted or whether I should point out the difficulties now in the hope that the noble Lord, Lord Brain, may feel at this stage that he can withdraw the Amendment and come back with another Amendment to meet the situation.


My first feeling is for the noble Lord, Lord Brain, to hear what the noble Lord has to say. I would rather accept it and leave it to be amended hereafter, if need be, in the light of the noble Lord's explanation. I think it better that it should be in the Bill.


Perhaps my noble friend will remember that at a previous stage I mentioned the difficulties that arose when an operation other than for termination of pregnancy was going on and it was then found that a woman was pregnant and that it was necessary, for health or other reasons, to terminate the pregnancy. The particular difficulty about this precise Amendment is that no test of "necessary" is suggested. In the place in the Bill where the noble Lord, Lord Brain, proposes to insert his Amendment, it means that the exemption is limited to the conditions in the Bill set out in subsection (2) as the only grounds on which an abortion would be lawful as set out in subsection (1).

Therefore, in effect, what we have to consider is: is the termination of the pregnancy necessary because its continuation would involve grave injury to the health of the woman or there is a substantial risk that the child will have severe abnormalities? They are the only two things justified in this Bill. Where the operation has begun and it will necessarily involve terminating the pregnancy, it is arguable that its termination cannot involve an offence of abortion since the surgeon has no intent to procure a miscarriage but only an intent to perform the original operation. The point is, therefore, that no Amendment in our view is necessary to achieve what the noble Lord, Lord Brain, has now explained to be his objective—which is what I thought it would be, and it is one with which I am in sympathy. I am in the hands of the Committee. It is a matter for the noble Lord, Lord Brain, as my noble friend suggested, to decide whether to move this and to amend the Bill now, and then look at it again. I think I have said enough to show that it will have to be looked at again and there will have to be an Amendment to put it in proper form.


In the circumstances I think it better that I should withdraw it now and give consideration to the various points, so that I shall have an opportunity of dealing with it later in the course of the Bill.

Amendment, by leave, withdrawn.

5.47 p.m.

LORD SILKIN moved, in subsection (2) (a), to leave out "a practitioner who holds an appointment as registrar or in a superior capacity" and insert: or under the supervision of a consultant holding an appointment".

The noble Lord said: This Amendment deals with the qualifications of the person who is actually going to carry out the treatment. In the Bill as it stands, the treatment must be carried out by a person who holds an appointment as a registrar or in a superior capacity under the hospital board and so on. My Amendment is designed to secure that it should be carried out by, or under the supervision of, a consultant. A consultant is, of course, of higher rank than a registrar; but there is nothing in my Amendment that would preclude a registrar from carrying out the treatment "under the supervision of a consultant."

I feel that the Amendment will be an improvement in the Bill, and it removes the complication of talking of a registrar or somebody of superior rank. It leaves the responsibility to the consultant and allows him to have the treatment carried out under his supervision. It might be by a registrar; it might be anybody else who is a gynæcologist, so long as it is somebody experienced in gynæcology. By accepting this Amendment we are falling into line with the normal practice in hospitals of having operations carried out by or under the supervision of a consultant. With that explanation I hope that the Committee will see their way to accepting this Amendment. I beg to move.

Amendment moved— Page 2, line 4, leave out from ("by") to ("under") in line 6 and insert ("or under the supervision of a consultant holding an appointment").—(Lord Silkin.)


I am not quite clear whether "under the supervision of a consultant" implies that the consultant must be there when the operation is performed. That is what I should have thought. If so, I think it weakens the position, because there are cases when an operation could well be done by some people of less than consultant status. The consultant should be responsible, but the operation would not be done under his direct supervision.


May I support the noble Lord, Lord Brock? It would be possible for a registrar and consultant actually to have the same qualifications. We are talking about a minor operation, which could take a few minutes. It would not be in the interests of the mother—and by that I mean she might be put off and there might be some delay—if a registrar and a consultant had both to be in the operating theatre.


May I further support the arguments put forward? According to my reading of the Amendment, it would require the actual physical presence of the consultant in order to enable him to exercise supervision at the time of the operation. I feel very strongly that the wording would be greatly improved if, instead of the words, "under the supervision", we stated, "or with the written authority of the consultant". I would ask my noble friend Lord Silkin whether he would consider a slight Amendment to the wording to enable the purpose of the Amendment to be carried out more fully.


I am afraid that the form of words suggested by the noble Lord, Lord Segal, regarding the written consent of the consultant would not achieve the purpose he has in mind. Everyone in your Lordships' House will agree with my noble friend Lord Silkin that there is a great deal to be said for placing responsibility for an operation at a higher level than that of registrar. But, as was pointed out by the noble Lord, Lord Brock, and my noble friend Lady Summerskill agreed, the Amendment as drafted appears to weaken the safeguards for pregnant women, because any doctor could do the operation whether or not he had experience of gynæcology, provided only that the consultant had such experience. Although the Amendment requires the operation to be under the supervision of the consultant, which might imply some control by the consultant over the qualifications of the doctor, there is no definition of the nature of the supervision, and no responsibility is placed on the supervising doctor. A doctor who was instructed to carry out the operation by a consultant might be placed in a difficult position if the consultant then failed to give any supervision.

The view of the Royal College of Obstetricians, which has the support of the Minister of Health, is that the Bill should provide for placing responsibility for an operation at a higher level than a registrar. We think the answer might be to frame a provision which would require an operation to be performed by a consultant holding a post which involved the practice of gynæcology, or a practitioner authorised by such a consultant to act on his behalf. If that concept meets the view of my noble friend, we shall be pleased to assist him to draft a suitable Amendment.


I must say that when I used the term "supervision" I did not have in mind that a consultant should necessarily be physically present. If that is what those words convey to your Lordships, it is not what I had in mind. I had in mind that the consultant should be responsible for the treatment, but that he should be able to delegate it to somebody in whom he had confidence, who was competent to carry it out and who would generally act under his direction. In the circumstances, what I should prefer to do is to invite your Lordships to accept the Amendment, with my assurance that I will consult the noble Lord, Lord Stonham, or his advisers to see that we get a general idea into the Bill but that it is properly worded. I hope that that course will commend itself to the Committee.


I am sure that there is no issue here. My only thought about the matter is that the insertion of the Amendment now might make the new drafting a little more difficult.


I do not think that anything is too difficult for Parliamentary draftsmen. I feel that there is an advantage in having the conception of the consultant being responsible. How this is to be carried out is a matter which we could consider later. I should like to have that conception in the Bill at this stage.

On Question, Amendment agreed to.


This is purely a drafting Amendment. There was an error in the original draft—which this Amendment is designed to correct. I beg to move.

Amendment moved— Page 2, line 15, leave out ("carried") and insert ("carries").—(Lord Silkin.)

On Question, Amendment agreed to.

5.56 p.m.

LORD ROYLE moved, in subsection (2), to leave out paragraph (e). The noble Lord said: I beg to move the Amendment standing in my name. This paragraph is one of the conditions concerned with Clause 1 and it reads: there has been before treatment an application in writing by the pregnant woman, or, if tinder sixteen years of age, of the pregnant girl and one of her parents or of the pregnant girl and her guardian for the termination of the pregnancy.

I move the deletion of this paragraph because I feel, first, that it would create difficulties which should be avoided and, secondly, that the paragraph is unnecessary. It may be that the aim of an application is that the expectant woman should take the initiative and that this would reduce the risk of her being persuaded against her will. The application would be made at an early stage and before the doctor had formed an opinion on the advisability of the abortion. It seems to me undesirable to ask for a formal application before the doctor has reached an opinion. Needless disappointment might be caused. It might be more difficult to persuade the woman that the pregnancy should go on. Again, suppose a doctor finds an early pregnancy during an examination of another kind—


Can the noble Lord, Lord Royle, elaborate his first point? There is nothing in this paragraph which says that she has to give her consent before the doctor has expressed an opinion. It is before treatment. The treatment, I take it, is the actual operation.


I am much obliged. I agree with my noble friend that this is so but every implication in the paragraph seems to me to indicate that application must be initiated by the woman in the early stages. That is why I am taking this line.

Again, suppose a doctor finds an early pregnancy (I was in the middle of this sentence when my noble friend interrupted me) during an examination of another kind and finds it necessary to recommend termination on health grounds. Take the case of a girl of 16 under the paragraph. There may be cases involving girls under the age of 16 where the parents cannot be traced or they may be dead. No guardian may be available. It may be a still younger age, for all of us know that the age of girls involved in this trouble may be as low as 12. To avoid distress, surely it is desirable for the doctor to use his discretion subject to the consent of the parents. The Bill goes on to talk about defectives. I suggest to your Lordships that very many defectives would be completely incapable of making a valid application as is suggested by the Bill at the moment. This is still worse if the definition of "defective" is going to be the word "subnormal".

It is necessary for me to indicate what the position would be if there were no provisions requiring an application. It is the standard practice in the National Health Service hospitals, as I understand it, for the written consent of a patient or, in the case of those under 16, of the parent or guardian, to be obtained for any operation, unless for exceptional reasons—for example, a life-saving emergency—the written consent cannot be obtained. In those cases the consent form signed by the patient states that he or she agrees to the operation, and to an anæsthetic, if this is necessary, and the nature of the operation is left to the surgeon.

But in the case of an operation of a special nature, including sterilisation and therapeutic abortion, it is the practice for the form to state that the patient agrees to the particular operation, and that the nature and implications of the operation have been explained to the patient. It is also the practice to obtain the husband's consent, as well as that of the patient, to operations of sterilisation and therapeutic abortion. Although there is no specific statutory requirement that the patient's consent should be obtained before an operation is performed, again, I understand that medical defence organisations advise that consent should invariably be obtained to safeguard the doctor against any possible proceedings for assault against the patient; and it is considered that the normal medical practice for obtaining consent to operations provides adequate safeguard without what is now being suggested and that it is unnecessary to have a specific provision relating to consent in this Bill.

I turn for a moment to the penalties which are laid down in the Bill. Paragraph (e), which is the one we are discussing, is a condition to be complied with if the abortion is to be legal. If the doctor, for some good reason, were not to comply with this, as I regard it, technical provision, he makes himself liable to a maximum penalty of life imprisonment. Frankly, I confess that I do not understand why my noble friend ever inserted this paragraph in the Bill. He will have the opportunity of explaining to your Lordships why he did, and I hope he will. For these reasons, I am appealing to my noble friend to accept the Amendment, and, if he is not prepared to do so, then I hope that I shall have the support of the Committee. I beg to move.

Amendment moved— Page 2, line 20, leave out paragraph (e).—(Lord Royle.)

6.4 p.m.


Far from regarding this provision as unnecessary, I think it is absolutely crucial to the Bill. My noble friend has suggested that we are sufficiently covered by the safeguard that it is the practice in National Health Service hospitals to obtain the patient's consent before the operation is performed, and that it is the practice to obtain a rather more elaborate consent before a sterilisation operation or a therapeutic abortion is performed. I am not prepared to rely on the practice as we know it. It has no statutory force behind it; it sometimes falls into disuse, under pressure, and some hospitals may not perhaps always conform to what is the normal practice. I regard this provision as the minimum defence for a woman.

If the baby is born and the mother wishes to have it adopted, she must give her consent to the adoption before a magistrate, and she has the right to withdraw that consent right up to the moment of the court hearing. As I reminded your Lordships the other day, if a woman gives consent to a hire-purchase agreement produced by a doorstep salesman she has the right to revoke that consent within three days. These, surely, are instances of matters which are not comparable with the case of an abortion. It may be that the case of adoption is so comparable, but certainly that of a hire-purchase contract is a much less serious matter.

There have all along been two lines of thought running through this Bill. The first is the thought that the Bill should make it possible to prevent babies from being born whom other people—not the woman concerned—think ought not to be born. That was my objection to the original inadequacy Amendment: that it really put the judgment not on the woman concerned, but on other people. The other line of thought is that in certain restricted and defined circumstances the woman herself should have the right to say that she does not wish the baby to be born. My noble friend has said that she may make an application at a moment when it cannot be accepted, because the doctor has not yet come to a decision. Nobody expects every application for everything to be successful.

But what matters is that she should make the application herself, so that there can be no doubt that it is her wish.

If this Amendment is accepted, all my old suspicions about the inadequacy Amendment, and now the capacity Amendment, will be aroused again, because it will mean that the object of this Bill is not that women should be aborted in circumstances in which they wish it, but in circumstances in which somebody else decides. As I said just now, I was prepared to support the capacity Amendment, and did so; but my support of the Bill as a whole will fall if this Amendment is accepted.


I should like to comment on paragraph (e). I have been listening to my noble friend, who is a magistrate and has a great deal of experience. I called at a hospital which I know well, which has 1.200 beds, and asked the matron there what was their approach to girls who came in suffering from an incomplete abortion—who had probably tried to procure the abortion themselves, and there was only a little bleeding, and it may be that if the girl had been left and properly rested she could still go to term. I asked the matron there, whom I have known for a long time (it is a hospital where I was on the management committee for many years) what is their approach: "Do you ask her age—before, for instance, you clear the uterus?". She said: "We ask everybody's age". I said: "Do you confirm it in any way?". I am sure she regarded me as a little ridiculous. She said: "You are not suggesting that we should find the birth certificate. They can say any age they like ".She added: "The surgeon will come in and examine the patient, and we do whatever he thinks fit".

I asked her: "Do you try to get in touch with the mother or father, or the guardian?"—I must admit that I was doing this for academic reasons, because of this Bill. I am sure the matron again regarded me as being somewhat ridiculous, and she said: "In a busy hospital like this we have not the staff to make inquiries of this kind. The surgeon just decides to do the operation as he thinks fit." So I feel that some of these arguments are a little academic. The girl going into one of our large hospitals in London—and we have the words at the top of page 2 of the Bill: …the following conditions must be corn-plied with in connection with any treatment for the termination of a pregnancy …"— may be a 15 or a 16 year old, looking like an 18 or a 19 year old. In that case nobody bothers to get hold of a birth certificate, and the surgeon would be very annoyed if his work were to be interrupted and he were asked that this provision should be complied with before he did the necessary operation. I feel that all our talk is a little unreal.


Surely in this matter the question rests on whether consent is given. My noble friend Lady Summerskill gave her experience, or what was conveyed to her at a large and busy hospital, and I have no doubt that these situations may obtain. But it is the case, I imagine, even in that large and busy hospital, that individuals, although their age is sometimes not asked, are required to consent to an operation provided that they are capable of giving an answer. Only if they are in a condition of such physical distress that they cannot act for themselves and no-one can act for them does the surgeon decide. I do not know what attitude my noble friend Lord Silk in will take on this.

My noble friend Lady Wootton of Abinger regards it as absolutely crucial to the Bill, because she is not prepared to rely on a practice in a hospital which has no statutory force. That is quite understandable. It may well be that some consent provision is necessary in the Bill. But it seems to me that, to go on with a position in the Bill which demonstrably puts doctors in jeopardy (and what my noble friend Lady Summerskill has just said confirms this) of having committed the very serious offence of criminal abortion simply because they have not filled in a form, is something which should be faced. Whether it can be dealt with by some Amendment to the Bill as it stands at present, or whether it is practical to have a consent clause in, I leave to your Lordships. But I would submit that my noble friend made out a convincing case for the fact that the position as it stands at present is unsatisfactory and needs amendment.


The last thing I want to do is to arouse the suspicions of my noble friend Lady Wootton of Abinger. She is a very formidable character, and I do not like to cut across her more often than I can help. I am not going to give any justification for her suspicions, because I think my noble friend is making rather heavy weather of this provision. If, as he said, it is already the practice in hospitals, and if he agrees that a girl under 16 or a woman over 16 must agree to the operation, I cannot see for the life of me what is the objection to her giving her consent in writing. There may be a difficulty about parents in the case of a girl under 16—she may not have parents. That is a point which I agree might be looked at again.

But that was not the burden of my noble friend's objection to this provision. His objection was that it was not necessary. I do not know whether it is necessary or not; it is not a statutory requirement in a hospital. Of course, this treatment may be carried out in an institution approved for the purposes by the Minister of Health and it may or may not be the practice at these institutions. Therefore, it makes it all the more necessary that there should quite clearly be the consent of the prospective mother. I think we ought to put it beyond all doubt and have it in the Bill that nothing will happen except at the request of the expectant mother, whether she is over or under 16. In the case of a girl under 16 it should rest with her parents or guardian. I think that should be in the Bill beyond any doubt at all, I would say whether it is necessary or not, but I think it is necessary. Therefore, I hope my noble friend will not press his Amendment.


I am under very great pressure, and I find it very difficult indeed to resist arguments, particularly from the promoter of the Bill and my noble friend Lady Wootton of Abinger. But I must in fairness to myself and my own point of view submit that my points have not been clearly answered. I wanted to make it perfectly clear—and that is why I put it first—that the difficulties were more important than the question of our present customs. I feel that if the clause goes through in its present form, with this paragraph in it, we shall find difficulty after difficulty arising.

I would stress again that my point with regard to girls under the age of 16, where neither parents nor guardians are available, could create tremendous difficulties if this paragraph were not in the Bill. I can envisage it happening. I am in two minds about this. I take a great deal of notice of what has been said, but on second thoughts I feel that I would much prefer your Lordships' decision.


I wonder whether I might suggest that these difficulties about the under 16s, and so on, could be met by some modification in this clause which could be introduced at Report stage. Surely the wrong way to meet these difficulties is to take out any reference in the Bill to the woman's own application.


I should like to support what the noble Baroness has just said. The points that the noble Lord, Lord Royle, has made are bound to weigh with us when supported by the views expressed by the noble Lord, Lord Stonham. If it were possible, perhaps the noble Lord, Lord Silkin, might agree to look into this matter again. Looking back to the debate in the last Parliament, my recollection is that we had quite a lot of talk about welfare officers, and the welfare side, in dealing with problems such as those envisaged by the noble Lord, Lord Royle—that is, the young girl whose parents or guardians are hard to find. If something of that kind would meet his point, perhaps the noble Lord, Lord Silkin, would think again and do as the noble Baroness, Lady Wootton of Abinger, has suggested, and bring something forward at a later stage.


I am sorry not to have been able to hear the whole of this debate, but I have heard some of it. If I might, I would ask the noble Lord, Lord Royle, to reconsider his attitude towards dividing the Committee upon it. Right from the beginning of this debate on abortion it has been essential that the operation should take place only with the consent, or on the application of, the pregnant woman. That is provided for in paragraph (e). Surely it would be a great mistake to take that out. The noble Lord, Lord Royle, suggested that there would be difficulties with regard to a girl under 16 if there were no parents or guardians readily available to give a signature. I entirely agree that he has a point there.

I think this is a point which will have to be looked at, and I am sure the noble Lord, Lord Silkin, will consider it. I was unable to be here to hear anything except the concluding remarks of the noble Lord, Lord Stonham, but I am sure that he drew attention to that point, too. I am sure that must be looked at. But that does not seem to me to be any argument, because that is not quite parallel with that part of the provision for taking out the provision in this clause that this operation can be done only on the application of the pregnant woman. That is something which I myself regard as essential, and something which should remain in the Bill. I am sure that if the noble Lord, Lord Royle, would withdraw his Amendment, he could rest assured that those of us who want to see a Bill on the right lines to deal with this subject will do what we can to meet the difficulties to which he has drawn attention.


I bow to no one in the desire that there should be sufficient safeguards in this Bill. That has been my attitude to it the whole of the time, both in the last Parliament and in this one. However, there is terrific pressure, and obviously I must take notice of what has been said by noble Lords. Also, at this hour I hesitate to detain your Lordships for another Division. Therefore, I beg leave to withdraw the Amendment, on the assurance that we may have the opportunity of considering these particular points at a later stage.

Amendment, by leave, withdrawn.

6.21 p.m.

LORD STRANGE moved to add to the clause: () Where a registered medical practitioner refuses to carry out treatment for the termination of a pregnancy, he shall immediately notify a female Welfare Officer, appointed by the local authority, of such refusal, and it shall thereupon be the duty of the Welfare Officer so far as practicable to secure the physical and mental health and well-being of the pregnant woman and of the child if born.

The noble Lord said: It seems to me that I have been speaking to this Amendment for years. I think I started last November, and it has become rather like the Psalms: on one day I give my arguments, and then on another day I give exactly the same arguments but in different words. In the background of this Amendment there has always been one thought in my mind. I feel we should have a sense of sympathy for these women who have got to this stage of wanting an abortion, for whatever reason, and I have always felt they would not be in that state if it were not for some man. I read in the Daily Telegraph last week an account of an abortion fracas in Wallington which I found almost extraordinary. A surgeon had asked a doctor to perform the abortion on his girl friend. The doctor performed the abortion; the girl died; the doctor committed suicide, and the surgeon was put into jail for four years. It reminded me rather of a Greek tragedy; something like a play by Euripides—Medea, for instance, when she kills her children, polishes off her husband and at the ends says, with satisfaction, "As I understand justice, so have I acted." I felt that if this Bill had become an Act, the unfortunate girl who died would not have come under the Act. The same story in fact would have been enacted.

I do not argue with the figures; we have accepted them for so long. But it is sad that every year 100,000 women obtain illegal abortions. The number may be more or less—I do not know—but that is the figure which I have become accustomed to hearing in your Lordships' House. If this Bill goes through there will be a large number of women who will not be eligible for abortion. We can guess the figures one way or the other, but I think that 25,000 women would be entitled to obtain a legal abortion and 75,000 women would he given, as a present, to the illegal abortionists. I feel that this cannot be right, and that is why I have been trying to bring in this Amendment, that these women should be put in touch with a female welfare officer. I have had the pleasure of meeting both female and male officers. I have found them very intelligent and dedicated people. I would rely on them, as professional people, for their secrecy, and I think they would certainly be competent to do all they could for any woman in this condition under their charge.

I know it has been said in your Lordships' House that the women might not want to have anybody messing about in their own affairs, and we all know that women have poker faces: it requires quite a lot of knowledge to know what is going on behind those masks. I am certain that nearly every woman in this condition would be in a state bordering on suicide. She would be in a state in which it would be impossible for any man to understand the misery she was in, and she would welcome having a friend who would be a friend in need. I feel that if your Lordships leave out the 75,000 women who are not covered by the Bill you will be—well, perhaps I will not say it, for I have never seen an ostrich hiding its head in the sand. At any rate, I will take it personally and say that I have come over to speak on this Amendment to the Bill because I believe in it and wish to try to push it through. And I would not give in on it for all the kippers in the Isle of Man. I await your Lordships' wisdom. I beg to move.

Amendment moved— Page 2, line 29, at end insert the said subsection.—(Lord Strange.)


I am very pleased that the noble Lord has stuck to his guns, and for the third time I rise to support him, because I admire his championship of women and I admire his capacity correctly to analyse the mind of a woman. I want to put one point seriously to your Lordships. If this Bill goes on to the Statute Book an entirely new position will arise. Women who hitherto have sought what we have called throughout this debate the "back-street abortionist" will go openly to a doctor. This will be the great change. Having read some of the debate which has taken place in your Lordships' House, and learned that there is a law that will help them, they will believe that if they go and ask for help openly they will be given an abortion. Therefore for the first time we shall be able to identify those women wanting an abortion. Statistics have been mentioned. We have no really sound statistics, because most of them come from hospitals where the woman has finally been sent because she is suffering from an incomplete abortion. At any rate, these women will go in good faith to their doctors and say "I want an abortion". So we shall be able to identify them.

There are two kinds of these women: the unmarried mother and the married mother. Generally they will be seeking an abortion for social reasons. I have never yet heard of a woman who asked for her pregnancy to be terminated because she was afraid, or unwilling to undergo disfigurement or discomfort or the pain of childbirth—never. The unmarried mother seeks an abortion generally because she fears the social stigma and knows the difficulties of looking after her baby. She knows the difficulties of obtaining accommodation, and if she is far-seeing she recognises the difficulties which her fatherless child would have to face if she brought it into the world. The married woman also seeks an abortion usually on social grounds. She may have a big family, as we have just been discussing; she may be living in a couple of rooms with five children, which makes life intolerable. She may find that her family is already big enough and that the family budget simply will not take another child. Or she may feel that her marriage is in danger of breaking up, through incompatibility, or for some other reason. These are the reasons why the unmarried and married mothers seek an abortion.

Having decided on an abortion, the woman goes to the doctor; and do not let us think that, when the doctor to whom she has gone openly says, "No" she then changes her mind. All she will do then is exactly what the women are having to do now; that is, to seek an unqualified practitioner of some kind or another who will help her. I entirely agree with my noble friend; here is a woman distraught. There is no doubt about it, she is in a category apart. She has decided that her conditions of life are such that she cannot bring a child into the world, and in good faith she goes to somebody she believes can help her—a doctor. He says "No". Distraught, she turns to somebody who will help her—the people who are now aborting, we are told, 100,000 women each year. Nobody knows what the exact figures are. The noble Lord quite rightly says that it is the duty of society to help this distraught woman at that stage. That is what we are asking for.

What is the position? The waiting rooms of the general practitioner are packed. Let us face it. The woman comes in; she quickly in a low voice asks for the abortion. He asks her what her circumstances are. He knows she will not qualify under the Bill. The pressure in the waiting room is very great—you have only to go round the waiting rooms in a big industrial town and you will see patients standing waiting. So he gets rid of her as nicely but as quickly as he can. He might give her a recommendation to a hospital. There is the vast outpatients department. Again there is the pressure of time. If you just leave it to the decency, the kindness, the sympathy and the understanding of a doctor and hope that he will see that she goes to the right person in her distress. I know you may feel that it will be enough, but do let us think of the circumstances that exist in our hospitals and consulting rooms and waiting rooms.

The noble Lord is asking us to put in the Bill that this particular woman who goes for help but does not qualify under the Bill should be asked to go—she will not be forced, because obviously you cannot force her to go; she can walk out and go wherever she likes—but she will be directed to the right person, the welfare officer who can give her the comfort, the help and advice, whether it is taken or not, that this distraught woman is in need of. I would remind you that this particular woman has not many friends. The married woman may be on bad terms with her husband, and the unmarried woman may have been deserted by the man responsible for the baby. What my noble friend is asking for is a means whereby this particularly friendless woman should he helped when she asks for help.


I have been slightly obstructive in the course of these debates. I have generally been in a minority, and I may be now, but I should like to support the Amendment of the noble Lord, Lord Strange, principally on this ground: that it is the only Amendment in this Bill which seems to me to suggest that it is more creditable to have an illegitimate child than to kill it. That in itself would be enough to make me support it. I have an incidental reason, which is that I always dislike finding myself in the opposite lobby to the noble Baroness, Lady Summerskill, on any matter concerned with the heart, and on this particular question I have always been so except on the occasion when I was a Teller and got into the wrong Lobby. On this occasion if it comes to a Division I will support the Amendment, because I believe it is trying to do the most creditable thing in this Bill, for which we all give the noble Lord, Lord Silkin, the greatest credit: it is trying to reduce the number of abortions by making people feel that it is not necessary to go to the back streets first. How successful in practice it will be I do not know, and frankly I do not care.


This is the third time the noble Lord, Lord Strange, has moved his Amendment and I think he improves every time. He put it very movingly this time, and on this occasion we had a particularly moving speech from my noble friend Lady Summerskill, fully informed on the whole situation, with the background, the surroundings which confront these women, and the outcome of any failure to provide this welfare help. There is no dispute whatever that this is terribly tragically needed. But you do not get it just by putting words into a Bill. I do not want to go over the discussions we had before. My noble friend Lord Silkin on the last occasion said he would make some inquiries of the Ministry of Health or consider this particular matter further, and he may have done so. But certainly I have consulted the Ministry of Health about it, and the view is that however desirable it may be that welfare help of this kind should be provided it is neither necessary nor desirable to make statutory provision, compulsory provision, on a doctor. We think it should be left to a doctor's discretion.

My noble friend Lady Summerskill said that you just cannot leave it to the good will and kindly feelings of harassed doctors to ensure that women in this condition get this help. But the Ministry of Health point out that welfare advice and guidance is often, but unfortunately not always, available through a medical social worker in a hospital or the local authority social worker in the health department. There is a grave shortage of these workers, and it is not possible to guarantee that this welfare advice will always be available, as indeed this Statute would demand if this provision went into the Bill. In those circumstances it is very difficult to see what instructions the Ministry could usefully give to ensure, as they would have to do, that this advice was available. There is not one of us who does not wholly sympathise with what the noble Lord has in mind. It is a matter for your Lordships. You may well say that if the advice is not there it must be provided. That is a matter for your Lordships. But I thought it my duty to point out the practical difficulties about acceptance of this particular Amendment.


I, too, have very great sympathy with the intention of the Amendment, but I am a little uneasy, inasmuch as it seems to me to be a breach of the normal confidence that obtains between doctor and patient. I should be much happier if the Amendment took the form of putting an obligation on the doctor to supply the unsuccessful applicant with the name and address of a suitable female welfare officer. If the doctor himself notifies the officer, it may be somebody known to the applicant and disliked by the applicant, who may feel that her private business has been conveyed to this woman without her consent.


I, too, am in great difficulty about this Amendment, because I sympathise with what the noble Lord has in mind—that where a woman is refused an abortion she should get the best advice and help and comfort. But is he not really going much too far? He is first of all putting an obligation on the doctor to notify the female welfare officer, whether the pregnant woman wants it or not. Is that not rather a breach of confidence? The welfare officer may be somebody in her own village whom she does not want to be informed of her pregnancy and of her desire to get an abortion. Nevertheless the doctor under this provision is under a statutory duty to inform the female welfare officer, whether the pregnant woman wants it or not.

Then it becomes the duty of the female welfare officer so far as practicable to secure the physical and mental health and well being … It is imposing a duty on another class of officer who is not directly concerned in this Bill at all, and we have no particular means of ensuring that the duty will be carried out. So far as the doctors are concerned, this is a medical Bill and we can be quite satisfied that it will be carried out. But here we are introducing something which is quite out of keeping with the main tenor of the Bill, and I should think it is far better, if you want to do something of this kind—and I hope that something will be done—to put upon the doctor the obligation to notify the pregnant mother of the facilities that are available to her, of having the advice and guidance of a female welfare officer, but leaving it to her to decide whether she wants it known that she is pregnant, whether she wants to get this help or what she will do in the circumstances. For these reasons, I hope that the noble Lord will not press the Amendment in this form. If he desires to have a fourth attempt, well, it may be that the fourth time will be more fortunate. But, frankly, I do not think that this is a provision that can be successfully operated in this Bill.


I feel that the third time should be lucky. Much has been said about something which is not difficult. Doctors have stocks of calcium pills which they put in boxes and which they hand out to patients, telling them that they should have one every so often. It is quite simple to look in a drawer and to take out some cards, to tear one off and say to the patient, "This is yours", and to tear another one off, mark it "confidential", put the woman's name on it and send it to the woman welfare officer, who puts it in a file. If the woman does not go to the welfare officer it does not matter; the matter remains confidential. I will not withdraw the Amendment.

On Question, Amendment negatived.

On Question, Whether Clause 1, as amended, shall be agreed to?

6.42 p.m.


I find myself strongly in support of this Bill as embodied in the cases which would be included under Clause 1(1)(a), and under the conditions provided by this clause. But I feel an uneasiness as to the rightness of what is defined as the cases for the extension of abortion under Clause 1(1)(b) and which we are asked to approve. I will try, as briefly as possible at this late hour, to explain the reasons for this uneasiness, and for the somewhat different view I take from those which have so far been put forward by others who have spoken.

Your Lordships will remember that in the last Parliament the right reverend Prelate the Bishop of Exeter put forward the view that termination in the supposed interests of the unborn child would be morally illicit unless it could be established without doubt that the fœtus was so gravely defective that the child, if born, could not begin a life which could be human in any recognisable sense of that word. In fact, the circumstances in which such conditions can be ascertained without reasonable doubt are quite rare, and recognition is not possible, so I understand, before 30 weeks when X-ray may reveal gross hydrocephaly or anencephaly. Then the question of termination is not one for the abortion law, but rather for the Infant Life Preservation Act. These rare conditions are therefore irrelevant to the present Bill.

The physical and mental abnormalities contemplated by Clause 1(1)(b) have been discussed and presented to your Lordships in terms of statistical risks, not of medical diagnosis. Given a certain family history, or given certain facts concerning virus infections by which the mother has been attacked in the early stages of pregnancy, it is possible to calculate the statistical chances that the child, if born, may be seriously defective. I understand that the highest risk, and a rare one, is 50 per cent. Most risks come below 25 per cent.—that is to say, one child in four will be defective, or one in five, six, seven or eight. This means, in practice, that there is an equivalent risk that, if abortion is induced, three good f œtuses will be killed for every defective one; or five, six or seven good f œtuses will be killed for every bad one, according to the statistical prediction.

The pædiatricians, according to the article published in the Lancet of January 1 of this year, are so distressed by the physical state of the children for whom they have to care that they argue that these risks ought to be taken: in other words, that it is better that a potentially deformed child should not live, at the risk of killing x potentially whole children: this risk should be taken rather than that a deformed child should be born and live. The Council of the Royal College of Obstetricians and Gynæcologists, in their Report published in the British Medical Journal of April 2, are prepared to back this view, recognising the risks—and here I quote: If a new law were enacted, it would be wise in our view to include as an indication a considerably increased risk that the baby, if born, would be seriously handicapped, either physically or mentally. We wish to emphasise, however, that the inclusion of the latter provision would often in practice lead to the destruction of a potentially normal child. Such arguments, propounded from these sources, are weighty, and there can be no doubt of the humanitarian and compassionate motives which they represent. But I feel a grave difficulty in accepting these arguments, and for this reason. At the moment, if this clause stands part of the Bill, the law of England will have entrenched in it a principle that it is lawful to destroy four, five, six or seven potentially healthy children, in the hope thereby of destroying one potentially deformed child.

My unease can best be expressed by putting the matter in terms of these questions: if that deformed child were born, would you then hold it lawful to kill it? If not, why not? Is it not a less heinous thing to kill one deformed child than to kill four, five, six or seven potential children in the hope of killing one potentially deformed child? I do not advocate the killing of any newly born child, but I put it to your Lordships that the principle embodied in this clause is ethically no more defensible—perhaps less defensible—than a clause in a Bill which permitted the destruction of a deformed child, newly born, by itself.

This clause raises grave problems as to the conditions under which it should, or should not be, permissible to take a potential human life. Whatever the law, cases or abnormality are bound to arise. The only way with certainty to avoid that would be to kill all fœtuses. Indeed, deformity of some sort or another arises in one out of every 50 babies born. Where such deformities occur, and especially where they are serious (which is the case envisaged in this clause of this Bill), society must guarantee all the resources at its command to ease the lot of the child and the lot of the parents who care for the child.

Without in any way underestimating the demand that it will make on the affection and emotional resources of the parents, particularly the mother, on the skill of the doctors and nurses in a hospital, I would argue that such care is the right ethical way of meeting this natural hazard. Instances of genuine distress—and this is the point of the Amendment of the noble Lord, Lord Silkin, which we have just passed—would still be covered by Clause 1(1)(a), or could be regarded as being covered, I should have thought, by that paragraph, in the terms in which it at present stands, in which the mother's health is the question at issue; and I would urge this as the appropriate licit touchstone. If, when presented with a statement of risk, the mother felt honestly unable to bear it, then to insist on her doing so against a strong aversion would, it must be supposed, and I would contend, precipitate adverse effect upon her health and would justify the termination of the pregnancy under Clause 1(1)(a).

To substantiate such an adverse effect it would not be necessary to show that the mother was driven to the length of committing suicide. If the mother really cannot cope—and this is one of the issues we have already discussed this afternoon—surely her health inevitably will be subject to grave impairment. The question is one susceptible of medical diagnosis and prognosis. Doctors are well able to recognise where, under Clause 1(1)(a), termination of the pregnancy would be justified, and the interpretation of the clause envisages account being taken of the mother's health, social situation and of proper consultation between the mother's general practitioner, consultants and medical social workers.

Here is a widely based realistic safeguard against such distress as a mother would not be able to face without injury to her health and her capacities as a mother. I want to see Clause 1(1)(a) incorporated in the law of the land. But this present Clause 1(1)(b) is, I feel, a very different matter, since it introduces into the law of this land a principle which I believe is dangerous and should, if possible, be avoided. I do not propose to divide the Committee, but I hope that we may still give some further thought as to the wisdom of Clause 1(1)(b).

6.53 p.m.


I hope that the right reverend Prelate will forgive me if I do not follow him in these arguments, because my only purpose in rising to my feet is to honour a promise which I made on Second Reading, in reply to a point made by the noble and learned Viscount, Lord Dilhorne. Incidentally, I am very much in favour of the Motion that Clause 1 shall stand part of the Bill.

Your Lordships will recall that during Second Reading Lord Dilhorne expressed the view that my noble friend's Bill, when it becomes an Act, would not in fact supersede Case Law, and he expressed it as his view that the Act and Case Law would then move forward together. My noble friend expressed disagreement with that point of view, and I undertook to obtain advice and consider whether an Amendment was necessary to put the issue beyond all doubt.

My advisers and I have again been into the point very thoroughly, and I have taken the opinion of my right honourable friend the Attorney General. The essential point is whether the doctor must comply with all the conditions of Clause 1 if the abortion is to he lawful, or whether he can be in breach of one of the conditions and still perform a lawful abortion provided that he satisfies the test laid down in Rex v. Bourne.

The advice I have is that the Bill, as it stands, does supersede the Case Law. I am advised that the proposition that certain statutory conditions must be complied with in connection with any treatment for the termination of a pregnancy is virtually meaningless unless it means that the treatment is unlawful if the conditions are broken. The essence of the Bill is that it defines the circumstances in which an abortion is not unlawful under Section 58 of the Offences Against the Person Act 1861. The view that the Case Law and the Bill, when passed, would operate together requires the very strong conclusion that the courts, in deciding what was unlawful under Section 58, could hold an abortion to be lawful although it was done in clear contravention of a condition in a modern Statute.

As I said on Second Reading, the Government agree that the Bill should have the effect that I have said it has. On the other hand, if noble Lords still felt misgivings about whether it does have that effect, it is not too late for them to express this view in some later provision of the Bill. But, having taken the best I opinion I can, I cannot advise the House that it is necessary to have an express provision; and my noble friend's Bill, when it becomes an Act, will in fact supersede the Case Law.


Since my noble and learned friend Lord Dilhorne is not here, may I ask one question on this matter? Is the noble Lord relying on the result of any particular decided case, or is this just a general opinion which he has derived—no doubt from very learned sources—about the state of the law, unsupported by any authority?


The opinion I have expressed is, as the noble Viscount has said, based upon the advice of very learned sources. I would add that the noble Viscount, Lord Dilhorne, who was in the Committee a little while ago, told me that he had to leave and that he would read to-morrow what I said.


I think that I ought to say a word in reply to the right reverend Prelate, and also say a word of gratification at the opinion which my noble friend has just expressed. It is not often that I have the satisfaction of having my views verified when I am in disagreement on a legal matter with a former Lord Chancellor, so I must say that one word of triumph on that point.

If I may say this to the right reverend Prelate, the point he has made on Clause 1(1)(b) is by no means fresh. We have debated this over and over again. There is a genuine conflict of opinion as to whether this Bill should go beyond Clause 1(l)(a) and deal entirely with the life or the grave health of the mother, or whether we should take the occasion to go further which this Bill provides. The House, generally by overwhelming majorities, had decided that we should go rather further, and particularly in the direction of Clause 1(1)(b). There has been greater conflict over some of the other provisions, but I think there is almost unanimity about Clause 1(1)(b). There the matter stands. I note everything which was said by the right reverend Prelate, and I agree that it may mean taking life, if taking life is involved at all; and on that there is a fundamental disagreement. Many of us do not agree that the basis of the right reverend Pre- late's argument is sound, and that it is taking life at the stage at which abortion would take place. But if one accepts that, one has to agree that one might be taking the life of a child who would eventually turn out to be quite normal and healthy. But we have deliberately taken the choice of dealing with a case where there is a substantial risk of a child being born in such a condition that, as we said originally, it would be incapable of reasonable enjoyment of life. We have amended that in a way which I think is an improvement. I would ask the right reverend Prelate to bear in mind the kinds of cases which we have in mind: the child born without arms and legs; blind; deaf; dumb; the child without a brain. It is all right to say that such a child might be loved by its parents—so long as it has its parents. But that child may go on to live for a long time, and then what sort of a life are we condemning it to? The general view was that we ought not to take the chance if there was a substantial risk, and that is for the doctors to decide.

I do not wish to argue the case all over again, because we have threshed the matter out, but I should like the right reverend Prelate to believe that those of us who are supporting this clause are really quite sincere and conscientious in believing that it is in the public interest that something of this sort should be provided. I agree with the right reverend Prelate, also, that in many instances—but not all—this case would be covered by paragraph (a) of subsection (1), because the mother fearing that she might give birth to a defective child would be in such a mental condition that she would qualify for an abortion under that paragraph. But that is not invariably the case, and those of us who support this clause feel that we are doing right.

In conclusion, may I say to the right reverend Prelate that his own colleagues were divided on this issue, because a number of them supported paragraph (b) of subsection (1). So I am sure he would agree that he is not speaking for the whole of his Bench. Some of them support the clause, and some do not. I hope that the Committee will now be prepared to approve Clause 1.

Clause 1, as amended, agreed to.

Clause 2 agreed to.

Clause 3 [Interpretation]:

7.2 p.m.

BARONESS WOOTTON OF ABINGER moved, in the definition of "Defective" to leave out "subnormality within the meaning" and insert "severe subnormality as defined by subsection (2)". The noble Baroness said: I think it would be for the convenience of the Committee if we discussed Amendment No. 10 and Amendment No. 11 together, because No. 11 does for the law of Scotland exactly the same as No. 10 does for the law of England. The purpose of both these Amendments is to restrict legal abortion to the severely subnormal, as distinct from the subnormal. I think it is possible that some of your Lordships may not be acquainted with the apparently rather fine distinctions which are drawn in Mental Health legislation.

Under the Mental Health Act, a severely subnormal person is, to put it shortly, someone who is or will be incapable of an independent life or liable to serious exploitation. This covers cases such as imbeciles, idiots and people who must be institutionalised and cannot take part in ordinary life at all. The subnormal is a very wide category. In fact, the diagnosis of subnormals varies enormously in different parts of the country. The proportion of the population who are so diagnosed is very much larger in some parts of the country than in others, and that in itself, I think, is evidence that there is no hard and fast criterion by which the diagnosis is made. According to the definition of the subnormals, there must be an arrested development or incomplete development, but it is contemplated that they may be susceptible to medical treatment. Those words do not appear in the case of the severely subnormals.

In point of fact, a considerable proportion of the subnormals are responsive to medical treatment, and a very high proportion of them take their ordinary place in the community. What is more, investigations have shown that, even among those who are admitted to hospitals for the mentally subnormal, there is a very considerable proportion who are of average or even over-average intelligence. For instance, in the Fountain Hospital for mental defectives an inquiry in 1954 showed that 54 per cent. of a sample of 132 female patients admitted were not intellectually defective. A very much larger sample, a 5 per cent. sample of 12,000 defectives in the community and in institutions, taken at about the same time by Dr. Tizard, who is a very great authority on this subject, led him to the conclusion that a substantial number must be regarded as normal in intelligence. Much more recently, in 1962, an inquiry covering 17 hospitals for subnormal children in England and Wales has shown that, of the children who were capable of being tested, about 4 per cent. had above average intelligence.

Therefore, if we extend this Bill to cover the subnormals as distinct from the severely subnormals, we are really going to bring in a considerable part of the population who are, to put it bluntly, somewhat like ourselves, but who are very often the victims of circumstances or accidents, and who may by medical treatment and care eventually become quite like ourselves.

When this matter was previously discussed, when we were dealing with the Bill which suffered an abortion by the Dissolution of Parliament, I think it was perfectly clear that the image in the minds of noble Lords who wanted to extend this provision to all subnormals was really an image of the severely subnormals. There were references to people who were quite incapable of forming decisions, and so forth. If we accept the fact that we are going to take the whole of the allegedly subnormal population we are, as I say, going to make a very large extension and, what is more, a much larger extension of the provisions in some parts of the country than in others. I beg to move.

Amendment moved— Page 3, line 14, leave out ("subnormality within the meaning") and insert ("severe subnormality as defined by subsection (2)").—(Baroness Wootton of A binger.)


I just want to ask a question, because this is something I do not know much about. Would not a severely subnormal person be a severely handicapped person?


It is necessary to know before the child is born that it is going to be severely subnormal, and that is not known.


I think I ought to reply to the Amendment. This is a very difficult provision. In the Bill as it was originally submitted, this category was restricted to severe subnormality. Under some pressure from the noble Lord, Lord Molson, who was very keen on an Amendment of this nature, I accepted it, but with the reservation that I was not entirely satisfied and wanted to look at it again. I have now done so, and I think that my noble friend is right. The Amendment of the noble Lord, Lord Molson, does go too far and I agree with everything that my noble friend has said in support of her Amendment. I am only sorry that, owing to illness, the noble Lord, Lord Molson, is unable to be here because I should have liked to hear him state his case again. But in his absence I feel that we should be wise to accept the two Amendments as they stand, and I therefore have great pleasure in recommending them to the Committee.


was present when the noble Lord, Lord Molson, moved the Amendment to the previous Bill, in terms of severe subnormality. It was his observations which gave me the impression that he had in mind very much more severe cases than those which would be covered by an Amendment to include all subnormals.

On Question, Amendment agreed to.


I beg to move the next Amendment.

Amendment moved— Page 3, line 16, leave out ("within the meaning of section 6") and insert ("of the degree described in subsection (7) of section 96").—(Baroness Wootton of Abinger.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Remaining clause agreed to.

House resumed: Bill reported with Amendments.