§ 8.9 p.m.
§ The Lord Bishop of Birmingham
My Lords, I beg to move that the Bill be now read a second time.
I have introduced this Bill with some reluctance and a great deal of trepidation. It is a long time since a Bishop introduced a Bill in your Lordships' House; I do so only because I have not been able to find anyone here or in another place to do it, and I have received encouragement to take an initiative.
I want to make it clear that I do not belong to any of the many pressure groups about abortion. Perhaps I should add that, when it was suggested in the General Synod by a Minister of the Crown that Bishops should knock on the door of 10 Downing Street on the subject of abortion, I did so. As a result of that I met with Ministers of State both from the Home Office and the DHSS, and I think it is fair to say that my Bill has gestated as a result of that meeting.
In fact this Bill is not about the Abortion Act at all. It is about infant life preservation and in particular about the Act of 1929 which bears that name. My Bill has one moral presupposition, and one only. It is this. It is immoral and wrong to kill a child that is capable of being born alive.
If a child can live when it breathes the air of this world, it is wrong to kill it at that stage in its development if it is in its mother's womb. The only exception to that principle would be a situation where the killing takes place in good faith, solely in order to preserve the life of the mother. I may say that the Infant Life (Preservation) Act does not talk about termination of pregnancy; it talks about child destruction.
These are not only sound moral principles but they are actually embodied in the Infant Life (Preservation) Act 1929. They are part of the laws of this land. I am sure that there are many aspects of the Abortion Act about which many of us would disagree. I make no bones about the fact that, while I am in favour of abortion in certain circumstances, I think that that Act 1407 is too widely drawn. I have no doubt that we would disagree about when or if an embryo or a foetus should be accorded the same human rights as a human being. We might disagree about when the soul is infused into the embryo; about whether it is at conception or at some other time or whether it is a gradual development. Indeed, we might even disagree about whether it is right to talk about a soul at all.
All such points of disagreement are irrelevant to this Bill. I mention them only because I want to make it quite clear that my Bill is not concerned with the Abortion Act. I do not propose to amend that. My Bill is concerned only with the Infant Life (Preservation) Act 1929. The only point of contact it has with the Abortion Act is in Section 5(1) of that Act, which reads:Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus.)".My Bill has one moral presupposition only. If a foetus is born alive, it is a criminal offence to kill it. It follows that if a foetus has not actually been born but is capable of being born alive, then it ought to be accorded exactly the same rights, saving only the need to protect the mother's life. I find it very hard to see how this moral position could be gainsaid.
In the 1929 Act it is stated:For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive".The Act also states that, however many weeks a woman has been pregnant—say, 24 weeks—it is still a criminal offence to kill the child if it is capable of being born alive. But if you kill a child before it is born, by the nature of the case there is no evidence that that particular child could have been born alive. As a matter of fact most children of 24 weeks' gestation are capable of being born alive, but as the law stands at present there is a presumption that any child is not capable of being born alive unless the pregnancy is at least 28 weeks; and by 28 weeks I mean 196 days after the beginning of the mother's last menstrual period.
Things have moved on since 1929. Medical technology and medical care have enabled a premature baby to survive where formerly it would not have been able to be born alive. I shall not bother your Lordships with statistics, of which I have a good many. Whether one takes the figures in the Report on Fetal Viability and Clinical Practice published in 1985 or the most recent research of Yu and others in Australia published in the British Medical Journal in November last year, they show that a foetus of 24 weeks is not only capable of being born alive but has a 16 per cent. chance (in the British survey) of survival of more than a year after birth and a 33 per cent. chance of survival of more than a year after birth in the Australian survey. As the president of the Royal College of Obstetricians and Gynaecologists wrote to the DHSS in 1980:Twenty-four weeks does, at present and in the foreseeable future, represent the stage of pregnancy at which an expelled foetus might have a prospect of survival".That judgment seems to me to be endorsed by most professional bodies and experts. In 1985 there was a report by a representative committee comprising the 1408 Royal College of Obstetricians and Gynaecologists, the British Paediatric Association, the Royal College of General Practitioners, the Royal College of Midwives, the British Medical Association and the Department of Health and Social Security—a representative committee. Its first recommendation was this:The gestational age after which a foetus is considered as viable should be changed from the present limit of 28 weeks (196 days) to 24 weeks (168 days) of gestation".This change also has the approval of the report of the Committee of the Working of the Abortion Act presided over by the Honourable Mrs. Justice Lane. Its report was published way back in 1974, and it is extraordinary that it has never been discussed either in your Lordships' House or in another place. As your Lordships may remember, the committee did not recommend any change to the Abortion Act 1967, but it did recommend, 14 years ago,that the Abortion Act should be amended to authorise abortion up to the 24th week of pregnancy and no more".So far I have quoted only professional bodies and the Lane Committee in my favour. I know that I must not quote remarks made in another place, but there have been, as your Lordships will know, four attempts in another place to amend the Abortion Act, and of course there was one in this House by the noble Lord, Lord Robertson of Oakridge.
§ Viscount Craigavon
My Lords, the right reverend Prelate mentioned that those organisations were in his favour and he read out a list of the organisations. Can he say whether all of them, and in particular the BMA, support the Bill?
§ The Lord Bishop of Birmingham
My Lords, I thank the noble Viscount for his intervention. I understand that not all of them have met to decide this matter. The Royal College of Midwives supports it. So far as I understand it, the British Medical Association supports it with certain exceptions, though there is a certain vacillation which we have noted before. The British Medical Association was against the Abortion Act when it was first published. It was in favour of the Act when it was implemented. It thought that the period should be 20 weeks at one stage and 24 weeks at another. Now it thinks that it should be 24 weeks, with some exceptions. That is the best answer I can give to the noble Viscount.
§ Viscount Craigavon
My Lords, I do not want to hold the proceedings up but I was told that the BMA had written a letter to the right reverend Prelate stating specifically that it did not support the Bill.
§ The Lord Bishop of Birmingham
The BMA did not support the Bill without exceptions. That is how I understood the letter. That is what I tried to convey to the noble Viscount.
When attempts were made in another place to amend the Abortion Act they failed, but this is the first attempt to amend the Infant Life (Preservation) Act. Naturally I looked carefully at what was said in another place because I wanted the Bill to pass there as well as I hope it may pass here. I notice that the mover on the previous occasion had been deflected from his intention to produce a Bill such as mine because the 1409 DHSS pointed out that it would cause grave legal problems as the Act does not cover Scotland and the different legal system that obtains there. However, the Solicitor-General for Scotland made it clear that that would not be the case and I hope that this particular red herring will not be raised again.
I must not quote from the other place but I believe I am allowed to say that influential people would have voted for my Bill then who could not support the amendment of the Abortion Act, including the noble Lord, Lord Ennals, who introduced an amendment to that effect and was indeed the initiator of the Abortion Act himself.
The great weight of informed opinion, as I understand it, as well as professional advice, favours the change which forms the substance of the Bill now before your Lordships' House. Moreover, we are the only country in Western Europe which permits abortion so late in a pregnancy. In Belgium it is illegal. In Switzerland it is only permitted if the mother's life is in danger or her health is permanently damaged; and the same applies in Italy after 90 days. In France abortion is allowed up to the 10th week. In Denmark, the Federal Republic of Germany, Austria and Norway it is allowed up to the 12th week. Even in Sweden, that most liberal of countries, it is allowed only up to the 24th week. I am given to understand that the same applies to the United States of America. However, in the United Kingdon abortion is allowed up to the 28th week.
§ Since I wish to bring forward legislation—
§ Baroness Robson of Kiddington
My Lords, I am sorry to interrupt the right reverend Prelate, but he referred to Sweden, which is the country I originally came from. He is right in saying that abortion is permissible up to the 24th week but will he also take into account that it is permissible on demand by the woman?
§ The Lord Bishop of Birmingham
My Lords, I am grateful to the noble Baroness for her intervention. But she has emphasised a point which, if I may say so, is a different one to the point I am emphasising and which is merely concerned with the period of gestation that is permissible. However, I am grateful to the noble Baroness for making that point.
I was about to say that I wish to be fair and so I want to consider seriously the possible objections to the Bill. The first group of objections might be called procedural. It is said that Mr. Kenneth Clarke, when he was Minister for Health, obtained a gentleman's agreement with private clinics that they would not allow abortions of a foetus of over 24 weeks. I do not believe that lives should hang on a so-called gentleman's agreement—which is not a phrase that I myself would wish to use in regard to those private clinics. In any case, we now have a different Minister for Health.
Secondly, it is suggested that all that the Minister for Health needs to do to stop late abortions is to send out a circular to all gynaecology departments and clinics to the effect that all abortions of, say, 22 or 24 weeks or so are in breach of the law. However, in view of what I said earlier I am not at all sure that such a circular 1410 would hold in law against the Infant Life (Preservation) Act as it stands. It is surely preferable to treat that Act in a proper legal way and amend it.
There is a second class of objections based upon numbers. There were 33 abortions of 24 weeks and over according to the statistics of the OPCS for 1985. Is it worth legislating, people have asked me, for only 33 abortions? I hope that that argument will not weigh in your Lordships' House. Would it be worth legislating for 33 acts of rape? Would it be worth legislating for 33 cases of murder? Of course it would. The same seems to me to hold for 33 improper abortions. I must admit that I was tempted—
§ Baroness Robson of Kiddington
My Lords, I am very sorry to intervene again, but may I ask the right reverend Prelate whether those 33 abortions that took place after 24 weeks were performed because the risk to the mother's life was too great?
§ The Lord Bishop of Birmingham
My Lords, I am grateful to the noble Baroness for her second intervention. I am glad to be able to inform your Lordships' House that I telephoned the Office of Population, Census and Surveys the day before yesterday in order to try to ascertain that fact. I was told that it did not know the answer. The office said that is might be possible to ascertain the information on a special computer programme but it simply did not know the answer. I should have liked to have the information myself, but I am afraid I cannot give the noble Baroness an answer.
As I was saying, I was tempted to reduce in my Bill the period of gestation from 28 to 23 weeks because in 1985 there were 1,185 abortions carried out between the 23rd and 24th weeks. A premature baby can easily be born alive at 23 weeks, but in fact very few of them survive; so it did not seem to me appropriate to substitute 23 weeks for 28 weeks in my Bill.
I turn to another class of objection. Some women have irregular menstrual periods and others who think they are menopausal may not believe that it is possible for them to become pregnant. It is said that such women do not realise they are pregnant until after 24 weeks. It seems to me that there is no particular reason, if they did not know at 24 weeks, why they should know at 28 weeks.
Again, there are young women who are too frightened by pregnancy to do anything about it until late in the pregnancy. I recognise that and I sympathise with their problem. It might then be too late for a legal abortion; but I do not think so. If we change the law it would soon become known that 24 weeks is the limit and even the most frightened would know that they must make up their minds before that period has expired whether to carry the child the full term.
The next is to me the most serious kind of objection: that it might not be known until too late that the foetus has some abnormality which makes it undesirable for it to be born in the view of some people and perhaps in the view of its mother. Clause 1(1)(b) of the Abortion Act states that an abortion may be legally carried out,if two registered medical practitioners are of the opinion, formed in good faith … that there is a substantial risk that if the child were 1411 born it would suffer from such physical or mental abnormalities as to be seriously handicapped".That exemption is of course subject to the conditions of the Infant Life (Preservation) Act.
Is there not a possibility that if the gestation period were reduced to 24 weeks some would be born seriously handicapped? The answer to that question I find is reassuring. Medical technology has forged ahead since 1929. Real-time ultrasound is used to exclude multiple pregnancy, to determine gestational age and to check the foetal heart before and after diagnostic procedure. Amniocentesis is practised at a relatively late stage in gestation. However, the figures for 1982 of abortions carried out as a result of amniocentesis given in this report by a representative committee show that a mere 4.7 per cent. were carried out at 24 weeks and after. That is a very small number. In any case, a new technique has been evolved of chorion villus biopsy which is best done in the 9th or 10th week. The latest techniques involve endoscopy and ultrasound. This way is safer, earlier and generally more satisfactory. The danger of children being born severely handicapped is slight.
I quote from the Report on Fetal Viability, which I have mentioned and which is in favour of 24 weeks:On the one hand the great majority of foetuses capable of surviving extrauterine life would be protected, while on the other hand it would ensure that with few exceptions women with currently accepted reasons for abortion would still have time to obtain one.".The Lane Committee, which I have mentioned, deals with the very same point. I quote:According to evidence received from those concerned with diagnostic amniocentesis, the diagnosis of chromosomal abnormalities, though possible by 18 or 19 weeks' gestation, may in some cases not be made until the 21st or 22nd week. Further, in the detection of biochemical abnormalities, diagnosis may not be made until 24 weeks' gestation.".The Lane Committee continues:Nevertheless the Committee would not be prepared to recommend an exception to the upper limit on abortion on the sole grounds of diagnosis of fetal abnormality and we consider that such an exception would be unacceptable to the medical and nursing professions.".Professional bodies and an expert committee do not believe that there should be any exception to 24 weeks and that is why my Bill stands before your Lordships tonight with but a single clause.
I have tried to deal with the reasons for the Bill and I have examined possible objections as fairly as I can, but in my judgment none of them holds good. However, I must add one further point which is not directly part of the Bill although very much connected with it. I have received representations to the effect that the Bill will not be fully effective unless there is a regulation which requires the gestational age of a foetus to be accurately ascertained before abortion can take place.
At the moment a doctor may rely simply on the word of the woman requesting the abortion. A woman may not remember, or may not choose to remember accurately, the date of onset of her last menstrual period. The vast majority of women are from overseas. They come here for late abortions as they are unable to get them in any other country of Western Europe. They may not even be able to understand the doctor's questions. The doctor may not choose to ascertain the weight of the foetus by ultrasound body scan.
1412 A report of the Royal College of Obstetricians and Gynaecologists in 1984 entitled Late Abortions in England and Wales informs us that the great majority of late abortions, over 70 per cent., are not carried out on the NHS but by private practitioners and there are 11 such—at least, there were then—who specialise in this kind of work and carry out 60 per cent. of it. They are of course being paid to produce not a live child but a dead foetus.
I asked the DHSS, which in turn asked the General Medical Council, whether there is any evidence of malpractice in the working of the Abortion Act. It replied that it knew of none. It is unlikely, I think, that it could know of any. While the NHS tends to use prostaglandins to induce labour in order to carry out late abortions, private practice is far more likely to use—according to this report, more than eight times more likely—what is euphemistically called D and E, meaning dilatation and evacuation, which is medical Newspeak for dilatation of the cervix and then dismembering a small human being limb from limb in the womb and extracting it through the cervix. How could one know in such a case that the baby was capable of being born alive? How could the emergency equipment which the DHSS rightly insists on in case a child is unexpectedly born alive possibly be needed?
The representative committee which produced the 1985 report on foetal viability, which I have mentioned several times, made two proposals: first, in accordance with the World Health Organisation recommendation, a record should be kept of all babies born alive or dead of 22 weeks' gestational age or, if born earlier, weighing 500 gms or more; secondly, confirmation of the gestational age of the foetus by all reasonable available methods, including ultrasound, in addition to a careful clinical assessment, should be carried out before a decision is taken to terminate a pregnancy thought to be of a gestational age of 20 weeks or more.
On New Year's Day I wrote to the noble Baroness, Lady Trumpington, to ask whether the DHSS would make such a regulation under Section 2(1) of the Abortion Act. Such a regulation would obviously help to ensure that the will of Parliament was being carried out. Unfortunately, I have not as yet received any reply to my letter, and it would assist us all if the DHSS would give us the answer. I realise that this is not a matter for the Home Office.
I want to return finally to the main substance of the Bill. It is a very simple Bill. It states that 24 weeks' gestational age is to be taken as prima facie evidence that a child is capable of being born alive. I believe that it is backed by most medical and professional opinion. It accords with the moral principle that, if a child of 24 weeks is capable of living outside the womb, it is immoral to kill it while it is in the womb. Indeed, such abortions are extremely distasteful to all concerned, so I hope that the Bill will receive the warm support of your Lordships' House. I beg to move.
§ Moved, That the Bill be now read a second time.—(The Lord Bishop of Birmingham.)
§ 8.36 p.m.
§ Lord Houghton of Sowerby rose to move as an amendment to the above Motion, That the Bill be now read a second time, to leave out ("now") and at the end insert ("this day six months").1413
§ The noble Lord said: If I may say so with respect, the right reverend Prelate has spent 23 minutes of his speech without coming to the crux of the debate. I want to suggest to your Lordships that the real issue before the House tonight is one not of doctrine or aims but of ways and means.
§ The right reverend Prelate read to us the recommendations of the group of professional bodies which reported to the Secretary of State in August 1985. That was the culmination of four years of investigation by different bodies at the invitation of the Government. It started in 1980, and the report was presented to the Minister in August 1985. Its first recommendation was that the gestational age after which a foetus is considered as viable should be changed from the present limit of 28 weeks—196 days—to 24 weeks—168 days—of gestation. It is from there that we start.
§ I want to say categorically that there is no dispute over that recommendation; there is no dispute about the aim that we wish to achieve. That report, however, made no recommendation about amendment of the Infant Life (Preservation) Act 1929. It made no proposal to deal with it by legislation at all. It left that matter to the Government. What it said was that the gestational age should be reduced from 28 weeks to 24. The report was circulated to all the nursing homes, approved under the Abortion Act within the National Health Service. All the professional bodies, everyone who might have an interest in the matter, received at public expense a copy of the report.
§ Its views were considered by the Secretary of State. He then summoned a conference. At the conference he came to a voluntary concordat with the proprietors of private nursing homes and all those who had special approval to provide abortion treatment after the 20th week. Everyone was consulted and brought together. It was at that meeting that the Secretary of State explained the Government's approach to the position as it then stood, which was to try by alternative non-legislative steps to achieve the aims of the report. It was that that was embarked on in the autumn of 1985.
§ The right reverend Prelate has suggested that this is a simple Bill because all it proposes to do is to substitute 24 weeks for 28 weeks in the 1929 Act. But what I think the Secretary of State had in mind on deciding on the policy now in full operation was that, while the period of 28 weeks should be reduced to 24, the penology of the 1929 Act should not be altered and brought down to 24 weeks for the present at any rate.
The 1929 Act in Section 1(2) states:
For the purposes of this Act, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive.
§ That is a prima facie presumption which is rebuttable but which puts the onus of proving innocence on the accused. Short of that, the onus of proof lies on the prosecution.
§ If 24 weeks is to be the new datum line with the penology of this Act attached to it, then the prima facie presumption of pregnancy of a child capable of being born alive will be brought down to 24 weeks from 28 weeks. The question is: can one safely do that? Can one safely put the onus on the accused at 24 1414 weeks, as it has been in the 1929 Act at 28 weeks? If so, then the penalty under the 1929 Act applies; namely, a sentence of imprisonment for life.
§ Is that the proposition? I believe that that is why the Minister decided that it was far better to try, by voluntary means and the discipline of the licences granted by the Ministry to the approved nursing homes, and with the co-operation of the professions, to bring about the aim of the report of 1985 without changing the law at any rate at present. That is the issue. The Minister made that clear in a Statement to the House of Commons on 23rd July 1985. It was then that he circulated the report and convened the meeting.
Then, in a Statement in the House of Commons on 15th November 1985 the Parliamentary Secretary at the Ministry said:
I am pleased to report that the proprietors of the eight nursing homes approved for abortions over 20 weeks' gestation have all agreed voluntarily to cease carrying our abortions at 24 weeks' gestation. This is an important step towards implementing the recommendation in the report of the working party convened by the Royal College of Obstetricians and Gynaecologists on foetal viability and clinical practice. Gynaecologists working in the National Health Service should take account of the report's recommendation in their clinical practice, as the president of the Royal College has sent copies of the report to all fellows and members in this country".—[Official Report, Commons; 15/11/86; col. 289–90.]
§ That was the acknowledgement that the degree of cooperation necessary to begin this operation had been obtained and that has been the policy of the Government up to the present time.
§ The question is whether, with that attempt at alternative means (which are believed to be more effective alternative means), this policy should continue longer before we resort to changing the law. That is the issue. I believe that the Minister is absolutely right and I sincerely hope that the noble Lord, Lord Beaverbrook, when he comes to speak, will confirm it.
§ I wish to point out that the lowering of the age of viability to 24 weeks has been the rule everywhere throughout the system since August 1985. Unhappily, this measure will result in more malformed and handicapped babies being born through inability to diagnose trouble earlier. For the time being at any rate that is the unfortunate consequence of reducing the age to 24 weeks.
§ I submit to your Lordships that this voluntary but effective clampdown on terminations after 24 weeks, which has been self-imposed and imposed on all concerned, should be allowed to run longer before we intrude upon its operation by an attempt to amend the law. The Department of Health and Social Security gave an assurance in the House of Commons as recently as 10th December 1986 that the working of this scheme was to be monitored by the examination of the reports received under the Abortion Act from all clinics and practitioners. The Minister said that in any case where it appeared that a contravention of the Infant Life (Preservation) Act has occurred, that case would be followed up.
§ What more can one want? If the Minister is enforcing the aims of the Bill without for the present the statutory power behind it, is it not desirable that it 1415 should continue without embracing the complications of embarking on further legislation?
§ For a minute or two I want to describe the complications of this simple Bill. I have already referred to them. I submit to the House that it would be undesirable and perhaps dangerous to try to enforce the Infant Life (Preservation) Act, which now relates to a gestation period of 28 weeks, at the new level of 24 weeks with no experience of the change, without having to resort to the law to enforce it. If the experimental period now in operation should prove unsuccessful, ways and means could be found through the law to enforce the new limit, not necessarily by the means proposed by the right reverend Prelate but probably by amending the Abortion Act.
§ However, let me point out to the right reverend Prelate that this Bill does not apply to Scotland any more than the Infant Life (Preservation) Act 1929 applies to Scotland. But the Abortion Act does apply to Scotland. That is one complication of using the instrument of the Infant Life (Preservation) Act. I wish to submit to the House that there could be serious difficulties in obtaining a conviction from a jury on the reduced level of 24 weeks if the court were asked to take as prima facie evidence that the woman was pregnant of a child capable of being born alive at 24 weeks when there is the certainty that one could take that charge against an accused person at 28 weeks.
§ One cannot play about with 24 weeks and be absolutely 100 per cent. certain. In present conditions one can be certain at 28 weeks but not at 24 weeks. It is only by clinical experience and attempts to apply the new level of gestation that we shall know for certain how reliable it will be so as to change the law.
§ I cannot see that what divides us justifies embarking on the controversial course of trying to change the law. If nothing were being done I should have some sympathy with that course, but when so much is being done one cannot have sympathy with it. If the right reverend Prelate thinks that this Bill is such a simple one that it will be passed without difficulty, he is gravely mistaken. We should have to fight very hard in Committee on this Bill because we should have to safeguard not only the professions but the women—the mothers who might otherwise stand in the dock charged with an offence under the Infant Life (Preservation) Act prima facie because they had a child of 24 weeks' gestation.
§ I submit that a firm rule can be applied far more effectively at present than the law could be enforced. The DHSS and other authorities can be in full control where the law can never be, and indeed might be an unreliable instrument in the hands of criminal justice. Considerations of criminal justice certainly would arise if it were proposed, as this Bill proposes, to transfer the penology of the 1929 Act at 28 weeks to the new level of 24 weeks, with the possibility of conviction on prime facie assumption of pregnancy, leaving the onus on the accused to prove innocence, and if on conviction there was a penalty of up to life imprisonment. That would be intolerable.
§ Lord Houghton of Sowerby
My Lords, I shall not give way because I am about to finish. In the 1416 circumstances, there is every reason why we should set aside the Bill for the time being. That would allow the experiment to continue. I shall not dwell upon the new menace of AIDS, the AIDS virus and unborn babies, but a new problem is obviously looming ahead in that grave area. That again may have some influence on social policy.
In the meantime, let the concordat reached between the Minister and the professions, which is now being tested by experience, continue. Do not let us attempt to back up what by voluntary and other disciplinary means is being made effective. The number of cases of 24-week gestation will come down. We may well eradicate the problem by the system and without any legislation. Guidelines are preferable to a law that cannot be enforced. Juries may hesitate to bring convictions against women who are innocent but whom the law presumes to be guilty.
The Minister should come out boldly and clearly and tell us the Government's position. I ask the House to support the amendment. I hope that the right reverend Prelate will feel disposed at the end of the debate to withdraw the Bill and spare us all the commotion, controversy and bitterness that are almost inevitable if it is pursued towards the statute book. Let us leave the law as it is. We shall then have good will towards one another. We have one aim. Let all sides be willing to give the present policy a trial before we embark upon the contentious course of proposing legislation.
§ The Earl of Longford
My Lords, before the noble Lord sits down, he said that life imprisonment attached to an infringement of the 1929 Act. I take it that he means that it is the maximum penalty.
§ Lord Houghton of Sowerby
No, my Lords. It is not a mandatory sentence. It is the highest level of punishment. After all, the offence is murder. There are a number of other heinous crimes for which the sentence is imprisonment for life. I doubt whether juries would find it possible to convict some accused persons who have the possible danger of long imprisonment awaiting them. I beg to move.
§ Moved, as an amendment to the Motion, That the Bill be now read a second time, to leave out ("now") and at the end insert ("this day six months").—(Lord Houghton of Sowerby.)
§ 8.53 p.m.
§ Baroness Braye
My Lords, I raise to give my wholehearted support to the Bill. I fully understand why some people regard abortion as an inappropriate subject for a maiden speech. In my experience private conversations about abortion have become so acrimonious that courtesy and good fellowship evaporate at the mention of the word.
I sincerely believe, however, that with regard to this Bill that legacy of bitter confrontation can be put aside. To me the root cause of the bitterness, put simply, is that with regard to the unborn child, where I would speak of "someone" many people with perfect 1417 sincerity would speak of "something". This dichotomy means that many powerful and impassioned arguments which have grown up from the basic premise on either side are meaningless to the other side. Frustration and fury result. I hope that I am right in thinking that the majority of people would refer to a child capable of being born alive, which is all that we are concerned with tonight, as "someone".
This is by any standards a rational, modest Bill. I am sure that it will elicit a rational and moderate response. According to OPCS figures, the number of abortions over 25 weeks of pregnancy seems to be declining steadily, from 102 in 1982 to 33 in 1985. We are not therefore asking for the reversal of a trend.
There is little that I can add to the right reverend Prelate's exposition of the Infant Life (Preservation) Act as it stands now and as we should like to see it in the future. The intention of the 1929 Act is beyond dispute—the protection by law of any infant capable of being born alive. Advances in obstetrics and paediatrics in the past 58 years are also beyond dispute. Babies frequently survive birth at 24 weeks or even earlier.
The problem begins, as so often, with the definition of terms. At the moment, as I understand it, the only incontestable proof that an infant of fewer than 28 weeks is capable of being born alive is that it should be born alive. Clearly that is now unsatisfactory.
We ask that 24 instead of 28 weeks' gestation should be declared to be prima facie evidence of that capability. This is not so much a change of law as a shift in the burden of proof. A new group of infants would thereby be afforded the full protection of the law. This change of wording would update a piece of legislation which has now been overtaken by events. That the law should be clear and unequivocal is essential, particularly for those whom we expect to carry it out. It would also allow some human beings to be born each year who might otherwise not be.
The issue of the potentially handicapped infant is highly controversial. I should not dream of attempting an exhaustive argument about it tonight. I do not underestimate the mental anguish of knowing that one is likely to give birth to a child who is in some way defective. For a variety of reasons, such as awaiting the results of tests, that knowledge can occasionally come distressingly late. A woman in such a position needs all the support, encouragement and practical help that she can obtain. What she does not need, I suggest, is any kind of pressure to have a late abortion.
There are positive alternatives. None of them is perfect but many of them are excellent. There are also many people ready and willing to help mothers find the best ones. We live after all in a society where more than ever before is done to improve the quality of life of the severely disabled and to proclaim their equality in dignity and status.
I see no reason not to extend that benevolence to the infants with whom we are concerned tonight. In conclusion, we are all aware of the intention of the 1929 Act. We are all aware of the progress in modern medicine. The passage of the Bill would merely mean that the one is brought into line with the other. It is a 1418 modest measure indeed but a worthwhile one to all of us who believe in the value of every human life.
§ 8.59 p.m.
§ Lord McGregor of Durris
My Lords, it is my privilege to undertake the one agreeable part of what must be for all your Lordships a debate on an unpleasant and depressing subject. It is the happy tradition of your Lordships' House that the speaker who follows a maiden speech congratulates the Peer who delivered it. In her tightly reasoned and elegantly constructed speech, the noble Baroness has poured a stream of cooling eloquence upon what may develop into a heated debate. We welcome her presence, we thank her for her speech and we look forward to regular contributions from her.
As the noble Baroness said, abortion is one of the subjects about which opinions are sharply and often bitterly divided. Those who traditionally have been most closely involved in the debate—moralists, Christians and medical people—must be presumed in their special fields to be equally learned, equally experienced and equally devoted to the public weal. Yet, as the right reverend Prelate acknowledged, they form groupings which draw conflicting conclusions from the same information. Accordingly, the rest of us, when faced with conflict among the authoritative, must judge choices of action and legislation in accordance with our own estimates of wherein the public good lies.
In particular, we must practise the habit of toleration of other people's views, without which a democratic and pluralist society could not survive. That is very difficult because toleration does not reside in our putting up with or agreeing with views about which we do not feel strongly. The essence of this virtue is to cope with opinions which may cause one pain and anxiety and even at times disgust. I wish therefore to examine coolly the likely social consequences of the change proposed in the Bill, and in doing so I cannot avoid inflicting some statistics upon your Lordships.
If in 1985 the period of gestation had been lowered from 28 to 24 weeks, as the Bill proposes, the number of women who would have been denied abortion would have been some 471. That is rather higher than the 33 cited by the right reverend Prelate. In calculating the number I have allowed for the practice of doctors to allow for a period of two weeks as against the estimate of the period of gestation. That number, 471, is relatively small. Even so, it would have amounted to no more than one-third of 1 per cent. of all abortions in 1985, a very small number.
However, knowledge of the circumstances of the women affected, of the mothers involved, is scanty. The most recent study of late abortions carried out by the Royal College of Obstetricians and Gynaecologists and published in 1984 found that women under 20 years of age constituted more than one half of all the abortions performed after the 20th week of pregnancy. A further 19 per cent. were carried out because of foetal abnormality. Of especial concern was the finding that, while most malformations were diagnosed by the 20th week of pregnancy "a significant minority"—that is the phrase in the report—were not identified until week 25 or 26.
1419 In a further paper based on these data Dr. Alberman concluded:The next few years may see the introduction of tests for earlier detection of many defects, so that the age limit of legal viability will be less critical",as the right reverend Prelate pointed out. It goes on to say:Until such tests are widely available, even with improvements in administrative and operative procedures, a lowering of the age limit of viability is bound to impose a limit on the number of legal abortions that can he done for severely handicapping conditions.".It is to be noted, as the noble Lord, Lord Houghton of Sowerby, pointed out, that the DHSS exercises close administrative supervision over all cases of termination of pregnancy where the stage of gestation is over 20 weeks. An ultrasound scan is required to be performed as a safeguard to patients and in the interests of operating doctors and the proprietors of nursing homes. Since the summer of 1985 the Minister for Health acted to ensure that any private abortion clinic would lose its licence if abortions were performed after 24 weeks. That is hardly in the character, one would have thought, of what the right reverend Prelate described as a gentleman's agreement. Moreover, all such cases must be dealt with by the National Health Service.
Of the women who would be affected by the change proposed in the Bill, two-thirds will be carrying seriously malformed foetuses or will be below the age of 20. Therefore, it is highly desirable when discussing abortion and a change in the period of gestation to take into account the opinions of the women who suffer a procedure which gives serious upset to everyone else involved, be they doctors, nurses, supportive friends or relatives or fathers who will not be.
§ The Lord Bishop of Birmingham
My Lords, will the noble Lord make it clear whether he is referring to statistics from the 20th week, the 22nd week or the 24th week?
§ Lord McGregor of Durris
My Lords, I am assuming that the age of 24 weeks applied in 1985. I am taking the 471 women who would then have been denied an abortion under the changes proposed in the Bill and considering the constitution of that group in so far as we know anything about it. As the right reverend Prelate pointed out, OPCS has no further information to offer. All that can be extracted is from the report which I have just cited, and I am applying its proportions to the 471.
Many voices, most of which are male, have been heard overloudly on this subject. Your Lordships' debate is in one sense typical. There are 17 voices of which only three are those of women. We know almost nothing of the views and feelings of the people primarily concerned. Astonishingly enough, a recent issue of the Journal of Medical Ethics carries a report of what I belive to be a survey containing the very first information about the attitudes of mothers to caring for one category of severely handicapped children; namely, children who are mentally handicapped.
The children reported on in this survey are now between the ages of 19 and 25. But, of the 15 mothers interviewed, 10 wished with hindsight that they could have had an abortion rather than a severely 1420 handicapped infant. Twelve of the 15 thought that such infants should be allowed to die in peace rather than have their lives saved by medical treatment.
The numbers involved in this survey within the North-East Thames Regional Health Authority area are far too small to permit any general conclusion. But the interviews in a pilot survey suggest that many parents in this situation do not look upon a lifetime spent caring for a severely handicapped young adult as time well spent, even though they love their children, have compassion for them and want to do the best that they can for them.
Another recent study asked parents what they would do if they knew that an expected child would be severely handicapped. Seventy-eight per cent. answered that they would want the pregnancy terminated. Thus for such women carrying an abnormal foetus who are denied an abortion because of the change in the period proposed in this Bill, the lowering of the period could have shattering consequences.
When they are asked why they present themselves late to the doctors there are two main answers, as I understand, in the scanty literature. The first answer is that concerning the severely handicapped foetus there may be delays within the health service; there may be an absence of resources; or tests may take a very long time because they have to be repeated. There are a number of administrative problems which can be cured or greatly improved by looking at administrative procedures before we attempt to change the law.
The second group who are late are the ones with whose circumstances I am familiar and about whom I have to declare an interest because I am president of the National Council for One-Parent Families. These are the youngsters, the teenagers, who come late for reasons which are too obvious to mention. They are worried about telling their parents. They are young enough to conceal the fact that they are pregant for up to 24 weeks. These are the people for whom pregnancy may be a life-destroying event. Therefore, I would plead with the right reverend Prelate to consider the administrative changes which may greatly improve the situation and remove the risk to the 400-odd women who are going to suffer under his Bill.
The right reverend Prelate asked whether 33 instances are not adequate for legislation on rape? Of course they are. Are not 400-odd instances adequate to delay a piece of legislation with the likely consequences of his Bill? I hope that your Lordships may be willing to look at this proposal in the light, first of all, of the lack of any pressure for it. Doctors, so far as I am aware, are not clamouring for new legislation. In fact, my understanding is that it is the last thing in which they want to be involved at the moment. There is no clamour.
As the noble Lord, Lord Houghton of Sowerby, pointed out, the present arrangements, though they work badly for the vulnerable groups I have been talking about, are otherwise perfectly satisfactory, and so regarded, again, so far as I understand, by all those involved. I therefore plead with the right reverend Prelate that before involving ourselves, or involving everyone, in a bitter and cataclysmic debate running over months in an area that is currently operating well, 1421 and, moreover, moving precisely in the direction he seeks, our motto at the moment should surely be to leave well alone.
§ 9.16 p.m.
§ Lord Robertson of Oakridge
My Lords, I should like first to take up one point made by the noble Lord, Lord McGregor of Durris, about the opinions of women. Before introducing my unsuccessful Bill in 1982 to tighten up the abortion law, I was written to by a number of women claiming to represent the views of other women. I have no doubt that to a certain extent they did. After the Bill's failure, when any views were obviously expressed from the heart and not inspired by pressure groups, I had 20 or 30 letters from women regretting its failure and two saying that the writers were glad that it had failed. Therefore, we cannot be all that certain how the majority of women really feel on the subject.
Like other noble Lords, I am grateful to the right reverend Prelate the Bishop of Birmingham for initiating the debate. If nothing else we have heard a first-class maiden speech by the noble Baroness, Lady Braye. How I echo her wish—it would be my endeavour to put this into practice myself—that we should discuss the matter without bitterness.
With one important caveat I support the Bill. My caveat is that I feel that it could lead to a misconception. It might be thought that support for the Bill implies not only disapproval of abortions over 24 weeks but approval of abortions under that stage. So far as I am concerned—and there are many like me—this is not the case.
The reason is that there is little difference in principle between an unborn child of, say, 26 weeks gestation who may at that time be capable of being born alive, and an unborn child of, say, 16 weeks gestation who may equally well be capable of being born alive if only left in peace in utero for a further 10 weeks. Both, I feel, are entitled to our love, care, and protection.
With this one qualification, however, I support the Bill. It makes no change of principle but it recognises the advance in medical skills and techniques since 1929 and, above all, it would save lives. Not many, but every life counts! Furthermore, it would spare some unborn children the appalling suffering caused by abortion when it takes place. It is horrifying to learn from the right reverend Prelate that an appreciable number of very late abortions are done by the dilatation and dismemberment procedure whereby the child is torn to pieces in the womb. Therefore, I hope that the Bill has a smooth and quick passage through your Lordships' House.
§ 9.20 p.m
§ The Duke of Norfolk
My Lords, I should like to congratulate the right reverend Prelate on his speech, which I thought covered the whole subject admirably. He went into it in great detail and put the statistics in the right proportion to support the argument.
I found the speech of the noble Lord, Lord McGregor of Durris, quite frequently slightly 1422 irrelevant. Some of it was full of non sequiturs. In particular I cannot understand, for example, why he thinks women should know more about this subject than men. It seems to me to be a question of our own human life and nothing to do with whether one is male or female. I felt the same about other points he made.
I now congratulate the noble Baroness, Lady Braye. She made an excellent speech, as was shown by all of us as she made it. We thought it was wonderful. It is very unnerving and we were all kind, but we wanted to be kind. The noble Baroness made a wonderful speech and I totally support everything she said.
I want to say a very few words. It was suggested, I think by the noble Lord, Lord McGregor, that there was not a great feeling about this Bill. There is an enormously widespread criticism and clamour to have the abortion laws of this country changed. The Christian Churches and some of the other Churches too are ashamed of our abortion laws.
I know a little about this subject because my daughter had a premature baby in St. Mary's, Paddington. It was born at 28 weeks. That baby, my grandchild, is a happy, flourishing human being whom I saw only last week. When I went to the Paddington hospital to see this little baby in the life support machine I saw many other babies. One of them survived at 24 weeks. It is a live and happy baby now. I understand that there are cases where babies of 20 weeks have survived. Those are figures that I have been given.
Late abortion is normally carried out by dilatation and extraction. That means that the body of the baby is crushed and dismembered in the womb and then removed piecemeal. That is what happens. If anybody thinks that is an admirable thing for human beings to do, to advocate or to allow, I totally and utterly disagree.
§ Viscount Craigavon
My Lords, the noble Duke refers to that practice being used in late abortions. Can he tell us what he means by late abortions? I understand that what one might call very late abortions, after 24 weeks, are no longer done in the private sector. That practice was being carried on in the private sector, whereas according to the report, to which the right reverend Prelate referred, of the Royal College of Obstetricians and Gynaecologists in 1984 the prevalence of that in the NHS was only 4 per cent.
§ The Duke of Norfolk
My Lords, I thank the noble Viscount for his intervention. I am in no way a doctor. I have lived my life largely in the army over the whole world and have seen a great deal of life. I understand that if the baby has reached the size of a 24-week to 28-week gestational age it is so big in the womb that it cannot be extracted without murdering and dismembering it. May I just continue the point? The noble Viscount may interrupt me in a moment. That is a simple fact: the baby has reached such a stage of life that you cannot extract it by any other means.
§ Viscount Craigavon
My Lords, I am sorry to interrupt again. I know I shall have a chance to speak later on, but this is so essential. It is very colourful language, which people remember. It is my 1423 understanding that that practice, called D and E, which, as I say, at the time of the 1984 report was only prevalent to the extent of 4 per cent. in the National Health Service, would not now apply to abortions over 24 weeks because, as we are maintaining, abortions after 24 weeks are now done only in the NHS and so the factor which the noble Duke is raising really does not apply.
§ Lord Brougham and Vaux
My Lords, may I remind the noble Viscount that he will be speaking later, and he is slightly out of order?
§ The Duke of Norfolk
My Lords, I am just saying that I think this method of destroying a foetus in the womb at the 24 or 28 weeks' gestation period is a barbaric practice, of which I think our nation should be ashamed. It is a blot on Western civilisation.
I now turn to the fact that London is often called the late abortion capital because in most other countries abortions are not allowed after 12 weeks. I think it is really scandalous that in our country rich mothers come over here, go to private clinics and pay for these late abortions which they could not get in other countries. I do not think it is a happy situation that we in this House should be pleased to allow it to go on. One of the great points about this Bill of the right reverend Prelate is that it would stop that. I strongly support the Bill as a step in the right direction, and I thank the right reverend Prelate for introducing it.
§ 9.28 p.m.
§ The Earl of Longford
My Lords, I shall speak very briefly and the brevity of my speech will not do justice to the strength of my convictions. I am sure that is true of the silence of many on both sides of the argument who are not speaking tonight. The noble Duke has expressed views which are held far and wide by Roman Catholics and by others, and I need not do much to amplify his arguments. I entirely endorse what he said and particularly join in the tribute to the noble Baroness who made such an outstanding maiden speech.
I am speaking partly and only really for a moment or two because I think it would be a very bad idea if the word got about that the Labour Party was a party that favoured abortion. It would be a pity therefore if no one spoke from the Labour Benches who is in favour of this Bill. The noble Lord, Lord Houghton, of course has been a champion, honourably and strenuously, of abortion law reform for many years. Speaking as a junior octogenarian, I salute one of my senior brethren, and I only hope that eight years from now I have a quarter of his vigour. That is without prejudice, I may say, to his views about abortion.
1424 I have no need to say more about my party except that, with the usual tolerance and liberality of outlook—I am informed that this is an entirely free vote—any views expressed, and no doubt expressed by some with much more personal authority than I can muster, will be entirely personal views. My views of course are entirely my own.
I was Leader of this House, sitting on the opposite side, when this abortion Bill came forward in 1967. There were a few veterans of those days, among them the noble Viscount, Lord Barrington, who played a prominent part; and there were others who are also here tonight, such as the noble Lord, Lord Molson, and the noble Earl, Lord Perth. But no one, I think, spoke in that debate except myself. I spoke, the House may be alarmed to hear, for 23 minutes. I have just looked it up. The House is not at all in that kind of peril tonight.
I shall read out just one passage. I left my seat as Leader of the House to speak against the Bill, so your Lordships will see that I felt quite strongly. I said:We begin with the conviction that human life is sacred; that the unborn child possesses a form of human life; that to terminate a pregnancy is to take human life and therefore is to commit homicide. There is a strong presumption that it is unjustifiable homicide."[Official Report, 19/7/67; col 311.]I could not put it better now. At any rate, that is how I put it 20 years ago.
I made the point and I was of course thinking of someone who had then been married for many years and had children and was on her way to having plenty of grandchildren. I had in mind that there would be circumstances in which, if I was asked should the woman in question have an abortion, I would say, yes. I made it plain then and I would say it now. But I was saying there is a strong presumption that abortion is an unjustifiable homicide. I would only add that I then predicted that this would lead to abortion on demand. It was said that that was quite ridiculous, that there is no such thing and that it was a Roman Catholic fantasy. But in fact what happened has been much closer to abortion on demand than anyone predicted or allowed for officially at that time.
I naturally support the Bill. It would be humbug for me to pretend that I am able to pursue the wise and prudent tactical line oulined by the right reverend Prelate. I am sure that that is a very sensible line, but it would be humbug for me not to admit that I come here as an enemy of abortion and I shall support him in the Lobby tonight.
My Lords, before the noble Earl sits down, as he has mentioned my name may I assure him personally that I have not changed by views in the least from the time when I opposed that Bill at the start, and I very much agreed with what the right reverend Prelate said.
§ 9.32 p.m.
§ Lord Henderson of Brompton
My Lords, I should like at the outset to add my congratulations to the noble Baroness on her maiden speech which was, if I may say so entirely exemplary. I should like to quote from the preface of the report on Fetal Viability and Clinical Practice:I hope that the legislators will now discuss this matter in a statesmanlike manner free from emotional overtures"—I think the chairman must have meant overtones—which so often seem to dominate debates in this field".The noble Baroness could not have fulfilled that hope more successfully, and I hope that we shall hear more from her in future. I say that with great sincerity although I differ, as will become plain, from her point of view.
I follow the noble Duke, the Duke of Norfolk, but I cannot say the same of his speech. I cannot say that it was statesmanlike or free from emotional overtones. It was charged with emotion. He talked of Christian clamour. He gave us horror stories of dismemberment in the womb. It was exactly the kind of speech that the chairman of the committee in writing the preface hoped we would not have, and I very much regret its tone and its utterance.
The noble Earl, Lord Longford, said that there was to be an entirely free vote, or so he was informed—
§ The Earl of Longford
I am sorry, my Lords, I can only speak for the Labour Party. I cannot speak for the other lot.
§ Lord Henderson of Brompton
My Lords, the noble Earl said he thought there was to be a free vote, or so he was informed, and I am sure there is. But looking around the Chamber, I cannot help wondering. I recall the words of Stalin, "How many divisions has the Pope?" I shall adapt that, if I may, and ask the question, "How many Peers has the Duke of Norfolk?" I see quite a number dotted around, and I hope that they will all have a free vote. Indeed, I see seven Members of the Bishops' Bench, and I hope that the right reverend Prelates will also enjoy a free vote. I see them nodding and I am gratified that that is so.
I find myself in the position of following no less than three speakers who are strongly opposed to abortion altogether and in any circumstances. I do not think that I do them an injustice when I say that. It is, I believe, a plain matter of fact. All spoke for themselves and, I have no doubt, out of strong religious feeling which I very much respect.
In the case of Roman Catholics, they are also following the doctrine and discipline of the Church. I do not wish to misrepresent them in any way. I understand that they are totally opposed to abortion in any form whatsoever and at any stage of pregnancy. I wish to establish that point because it is in strong contrast to the opinion of the right reverend Prelate the Bishop of Birmingham. I took down his words. The right reverend Prelate said that he is not opposed to the abortion laws themselves. He said,I am in favour of abortion in certain circumstances".He also went on to say,my Bill is not concerned with the Abortion Act".1426 I ask the right reverend Prelate, whom I acquit of disingenuousness, whether it is not possible that he is the catspaw of those who wish to see the end of abortion altogether? That is their aim and the trend of their speeches. They have said that specifically.
There is a fundamental difference between the right reverend Prelate, who is in favour of abortion in certain circumstances, and other noble Lords who have spoken who are against it altogether. I think it fair to draw the distinction between the right reverend Prelate and noble Lords who have spoken in that sense.
I do not wish to press the right reverend Prelate on the moral point. I think he has had a tough enough time already at the hands of the noble and learned Lord the Lord Chancellor as regards the Family Law reform Bill. He did say, in all innocence, that this Bill is not concerned with the Abortion Act. However, it is. It is concerned with the operation of that section of the Abortion Act which refers to the Infant Life (Preservation) Act.
The moment one brick is removed from the abortion law edifice, then the rest shifts slightly. Whatever the right reverend Prelate's intentions are and whatever he may say, there is no doubt that his Bill is concerned with the Abortion Act, whether or not he thinks it is. At all events, I believe that the right reverend Prelate has made his position quite clear in this House as well as on television and in the press, and that position differs very substantially from the position of those who have supported him today. That has been plain for all of us to hear. With great respect to the right reverend Prelate, I should say that his initiative today is being exploited by those who wish to go much further than he does.
The views expressed by the Peers who spoke immediately before me are the views expressed by the Save the Unborn Child organisation. In some recently circulated briefing material, it stated the wish to substitute 20 weeks for the present 28 weeks. And, clearly, that would be only an interim measure until legal abortion was abolished altogether. That is so, because it is implicit in the following very revealing sentence:Not that late abortions are morally worse than early ones, of course".That is an honest statement. It was forthrightly echoed by the noble Lord, Lord Robertson of Oakridge, and indicates clearly that the right reverend Prelate's Bill is the start of an all-out attack on the abortion laws. I hope that he is aware of that.
I should like to say two things at this stage. First, in our secular society, our plural society to which the noble Lord, Lord McGregor of Durris, referred, our morality is not dictated by the Churches. The Churches are given, scrupulously, freedom of worship and freedom of utterance in our society. I strongly support and applaud that. Due regard is paid to their views collectively and individually expressed. But since we do not live in a theocracy nowadays, the views of the Churches, which, in any case, often differ substantially on moral questions, do not necessarily prevail. Therefore, the morality of the state can and often does differ from the morality of the Churches.
1427 I take the existing law of the land on this subject to be morally right, kindly and humane. In my view, abortions should be allowed to be performed legally according to the carefully defined rules laid down in the Abortion Act. I cannot expect the noble Duke and the noble Earl to agree with me, but I hope that they will respect my moral sense just as I respect theirs. The noble Duke spoke as if all those who did not agree with him were moral outcasts. I hope he will take the opportunity of dispelling that impression which he certainly gave to me and I feel he probably gave to others in this House as well.
§ The Duke of Norfolk
My Lords, may I straightaway say that in no way did I suggest that anyone was a moral outcast? If I may say so, I think the noble Lord is saying things which really are not quite fair.
§ Lord Henderson of Brompton
My Lords, I should like, with the noble Lord, Lord Houghton of Sowerby, to plead very seriously with the right reverend Prelate to withdraw his Bill, not just for the reasons which I have already adduced but because it is too complex a matter to be dealt with in a Private Member's Bill. It simply seeks to amend the Infant Life (Preservation) Act 1929. But the abortion laws are highly complex and should not be disturbed without the greatest possible care and consultation.
Apart from the Act of 1929, there is the earlier Offences against the Person Act 1861, the Birth and Death Registration Act and the Abortion Act itself. The Abortion Act of 1967 was the result of many sessions of legislative labour and compromise. It is a settlement which ought not to be disturbed. It has been proved to be well founded in its 19 or 20 years of operation. If it is to be disturbed, nothing should be done without careful consideration by a committee. I am perhaps biased, but I would prefer a parliamentary committee. The overtones are so great that it is right they should be considered, along with the statistics, by those who are in Parliament.
The report of the Fetal Viability and Criminal Practice Committee is undoubtedly of importance. But the right reverend Prelate picked out only one or two of its recommendations. All the recommendations should be considered carefully by the House, preferably by a Committee of the House, before we proceed to pick away, even by one alteration, as the right reverend Prelate suggests.
The Bill ignores the progress that has been made by the DHSS in its controls in 1975, 1980 and in 1985. The last is the most important. I would say to the right reverend Prelate that it is unimaginable that any doctor, whether in the NHS or elsewhere, would conceivably perform a late abortion unless he was bound to do so morally and at the request of the patient. The doctor must be satisfied that the operation falls within the criteria of the Act. According to the morality of the doctors who have to weigh up these heavy decisions, a morality which I share, it is both morally right and humane for operations to be performed on the very small group of 1428 vulnerable women who for reasons beyond their control seek a termination at 22 weeks or 24 weeks.
Apart from this Bill being too simple, it would be an unacceptable narrowing of clinicians' freedom. For those two reasons only, I very much hope that the right reverend Prelate will withdraw the measure. Failing that, I think it is necessary to support the amendment of the noble Lord, Lord Houghton of Sowerby. Whether or not the Bill will get a Second Reading, I do not know. If it does, serious thought should be given to its being referred to a Select Committee for more minute consideration than it could possibly receive on the Floor of the House.
§ 9.47 p.m.
My Lords, like the noble Lord, Lord Henderson of Brompton, I am profoundly uneasy about the Bill. In saying that, I should make it quite clear that that is my opinion and not necessarily the opinion of my noble friends on these Benches, as indeed was made clear by the sensible intervention of my noble friend Lord Barrington. This is not a party matter but it is one on which I feel very deeply. I hope, and the hope has already been expressed by others, that those of us who disagree will accept that the opinions we all hold, though different, are held in good faith.
I was very glad that the noble Duke, the Duke of Norfolk, said what he did in response to the noble Lord, Lord Henderson. I should like to say to the noble Duke, whom I respect greatly—we have worked closely together on many matters—and who told us about his young grandchild who survived having been born prematurely, that whatever views I express about this Bill I rejoice when a healthy premature baby survives; of course I do.
I hope noble Lords will accept that my views are quite clear. I was the second sponsor of the Abortion Bill which was introduced by my right honourable friend Mr. Steel in another place; and as a doctor I was responsible for the responses on behalf of the sponsors of the Bill in the debates at the Committee and Report stages on medical matters, which particularly concerned the questions of abnormal or seriously abnormal foetuses. I was brought very much into this question at that stage.
The right reverend Prelate told us that he does not seek to amend the Abortion Act 1967. He may not seek to do so but, as the noble Lord, Lord Henderson of Brompton, said, he is in fact doing so. Section 5 of the Abortion Act 1967 states:Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus)".If one alters the provisions of the Infant Life (Preservation) Act 1929, by doing so one is necessarily altering the Abortion Act 1967. That follows. I do not think that the right reverend Prelate is being devious—not even for a bishop, if I may say so—
§ The Lord Bishop of Birmingham
My Lords, the noble Lord will perhaps recollect that I said the only way in which the Bill affected the Abortion Act is in so far as Section 5(1) is concerned.
My Lords, I am grateful to the right reverend Prelate because he has now said that he does seek to alter the Abortion Act; and of course he would alter it quite significantly if his Bill goes through.
I have another worry. The right reverend Prelate said that there had been four attempts in another place to amend the Abortion Act 1967; I repeat, four attempts. In looking at the Long Title of this Bill I see that it is perfectly possible in another place for Members who seek to undermine the Abortion Act altogether to do so—and there are many who are totally opposed to it and would like in some way to put it at naught. There is no limit to the extent to which they may seek to make further amendments to this Bill and therefore further amend the Abortion Act. Therefore, I can foresee what we have had over recent years—a whole number of Private Members' Bills with publicity and argument on matters about which we all feel strongly and which are of the greatest possible importance. I do not think it is helpful to a cause of this kind to have repeated rows of that nature in another place and which perhaps in the end come to nothing.
Certainly I should like to see changes. I hope the right reverend Prelate will accept that, although I told him I was second sponsor to the Abortion Bill, that does not mean I am in favour of abortion. I was extremely angry when accused of being pro-abortion. I am not in favour of abortion. I regard abortion as a highly undesirable procedure, but I believe that there are a certain number of specified cases where it is the course of action of choice, which has to be undertaken, however undesirable. I hope that is accepted.
I also deeply believe that, if abortions have to be performed, the earlier they are performed the better. I am well aware that efforts are being made by doctors, social workers and others, to make sure that that happens wherever possible. But it does not always happen. Because of the bureaucratic inertia present within the National Health Service and because of resistance raised in certain places by certain persons—I am sure with the best of motives—there are many occasions on which the whole process of seeing a doctor, being referred to other doctors, having a second opinion and so on can be extended and lengthened to such a degree that the time comes late, perhaps far too late, and much later than it need have done.
Therefore, we have the delays that arise from the present working methods in the National Health Service, and perhaps occasionally from the lack of resources in certain areas, that in some circumstances result in a woman coming forward for an abortion at a stage much later than any of us would like to see.
The second category of cases about which I am seriously concerned are those discussed at some length and clearly and directly by my noble friend Lord McGregor of Durris when he referred to the seriously abnormal foetus. That is a matter of considerable importance. The right reverend Prelate referred to the law in certain other countries—in France, Germany, Sweden and so on. What is unusual about our law is that when it was passed it was the first time that a law had made specific provision for the termination of a pregnancy where there was reason to believe that if the 1430 child was born it would be seriously handicapped, mentally or physically. That had never previously been done. On the whole it had been argued on the grounds of the effect on the health of the mother.
At the time we were dealing with that in another place on the earlier Bill it was occasionally put to us that if, for example, the mother contracted rubella or German measles at the dangerous stage of the pregnancy there was the assumption that the foetus may be born seriously handicapped. I have had personal experience of a child who was born after an abortion was refused—it was long before the Act—and where the mother had suffered from German measles in about the fourth month of pregnancy. The child was born blind and deaf. The family had a desperate time. I honestly believe that the child had a desperate time as well, and the family suffered seriously.
I said at that time that one hoped that advances in medical science would make it possible to diagnose with certainty an abnormality in a foetus and to assess the degree of abnormality at a reasonable period in the pregnancy, so that, if it was decided by all the parties concerned and considered advisable, a termination could be carried out.
Progress has been made and diagnostic measures have improved. However, even with the best diagnostic measures, there are cases of very severe handicap which cannot be diagnosed with absolute certainty until quite late in a pregnancy. It is in the main those which have been responsible for the very few cases of late terminations that are now arising.
I rejoice that thay are very few, and I should like them to be very much fewer. I hope that we are moving towards that stage. Indeed, I think that we shall move towards that stage not so much by statue but by improvements in medical knowledge and services and a change in the attitude of practitioners so that this is dealt with in a different way.
As the noble Lords, Lord Henderson of Brompton and Lord Houghton of Sowerby, explained, the steps taken by the previous Minister for Health are indeed being reinforced by present Ministers in the Department of Health and Social Security in its consultations with the medical profession. I believe that steps are now being taken to do everything possible to eliminate abortions wherever possible. I believe that there will always be circumstances when it will be inevitable that late abortion should take place, particularly in a case of very serious foetal abnormality.
As to the noble Baroness, Lady Braye, whose maiden speech I greatly admired—I am very glad that she has returned because I wanted to say that—I was much moved by what she said about a human being being born who would not otherwise have been born. But as a general practitioner with experience in this field, let me refer to two cases. I referred earlier to one case where a termination was not performed and a family was well nigh destroyed by the birth of a desperately handicapped infant, this into a family where there were already three children and difficulties.
I have had experience of cases where there was termination. Where a termination was carried out because of foetal abnormality, with the desire of the 1431 parents, with their full consent and at their request, there was a tendency for the couple to have another child as soon as possible. My experience with a woman who has been compelled bureaucratically or legally to bear a seriously handicapped child is that there is no way in in which she will bring another child into the world. I therefore say to the noble Baroness that I know of cases of human beings being born into the world who would not have been born had those steps not been taken with an earlier pregnancy.
The right reverend Prelate made much of the report of the joint working party, comprised of many professional bodies, on the age of viability. I think that it is right to remind him that that working party was concerned in the main with the time of viability not so much from the point of view of abortion but because of important considerations regarding death certification, what was and what was not a still-birth, whether a death certificate had to be registered in certain cases and so on. The decision was taken that in view of our present knowledge the age of viability ought to be brought down a little to meet those cases.
Important matters rest upon the consideration of entitlement to certain benefits, certain legal responsibility, certification and registration of a death as against a still-birth. The fact that the British Medical Association agreed with that on the basis of the necessity to bring down the of viability because of the consideration of whether there has been a still-birth, a death, an abortion or a miscarriage does not mean that the BMA supports the Bill.
I am advised by senior spokesmen of the BMA that quite explicitly it does not support the Bill. It would like to see the age of a foetus for abortion come down and to see fewer later abortions performed. The BMA believes that fewer later abortions will be performed but not that this Bill will be helpful to the steps that doctors and other professional people are taking in this regard.
I shall say no more save that I too hope that the right reverend Prelate will think again. Perhaps if the Bill proceeds to another place it could be used as a springboard for a whole series of attempts to amend it still further by those whose desire is not to improve the present arrangements or to deal with the relatively small matter numerically about which the right reverend Prelate is talking but to sabotage altogether the whole issue of abortion. I respect their views. I know that the noble Earl, Lord Longford, and the noble Duke, the Duke of Norfolk, are opposed to abortion under all circumstances—perhaps even abortion to save the life of the mother, I do not know.
§ The Earl of Longford
My Lords, perhaps I may interrupt the noble Lord to say that I made it plain when I was speaking, though perhaps he was not present, that in exceptional circumstances I would agree. I emphasised that.
My Lords, I am most grateful to the noble Earl and I am sorry that I overlooked what he said. However, I recollect that he said that on a previous occasion, and I dare say that others believe the same.
§ The Duke of Norfolk
My Lords, I should like to say that I spoke only to this Bill. In no way did I speak generally about abortion. I think that one of the things that your Lordships have noticed so often is the careful way in which the Bill is framed.
My Lords, I am indeed grateful to the noble Duke for that information. I meant to say that I understand the point of view of those people who because of their sincere beliefs would like to sabotage the Abortion Act of 1967. There are people who would like to do that, and I am opposed to them. I think that possibly this Bill could give them a launching pad for further attempts of the kind that we have seen during the past few years.
I hope that the Bill will not proceed further. But I say to the right reverend Prelate that I hope that as the years go on we shall see fewer abortions altogether. Not for a moment do I regard abortion as an acceptable alternative to sensible family planning. But I hope that we shall see fewer abortions altogether and I certainly hope that we shall see earlier abortions. I should like to see no late abortions at all. Nevertheless, I believe that it is my duty to say to your Lordships' House that I am convinced that there will always be circumstances in which a late abortion is necessary and proper and that there should be no penalty attached to those who take part in it.
§ Baroness Robson of Kiddington
My Lords, before my noble friend sits down, I should like to thank him very much for having pointed out as a member of the medical profession that in a foetus there may be certain grave disabilities that cannot be discovered too early. Does he agree that a mother who is faced with such knowledge should never be forced to take a decision that day as to whether she will have an abortion? She should be given at least a fortnight to think about it.
My Lords, I agree entirely with my noble friend that any question of imposing haste or pressure of any kind on mothers in those tragic circumstances is altogether regrettable. I am inclined to think that, as the age is brought down and one appears to apply limitations, perhaps one runs the risk of increasing the pressures that may be applied to certain women.
§ 10.3 p.m.
§ Lord Swinfen
My Lords, when I first looked at this Bill my immediate reaction was in favour of it. I understand that in bringing down the age of viability of a foetus to 24 weeks there remains a strong chance of a healthy infant being born alive and viable. I further understand that, because of the development of the foetus, it is unlikely that the viable term for the foetus would be reduced to 20 weeks or less. It may not reach that far. To set the period at 24 weeks would allow for any mistakes that are made about the age of the foetus.
I am told that it is possible for mistakes to be made, though with ultrasound it is becoming easier to determine the exact age of a foetus. I then started to look at the question of disability and the advances that are being made in discovering when a foetus is likely to be born a disabled person. The noble Lord, Lord Houghton, said that in the majority of cases that could not be discovered before 24 weeks.
1433 I took the trouble to ring up one of the professors at Guy's Hospital earlier this week and I understand that amniocentesis and ultrasound tests can now be carried out in the 16th, 17th or 18th weeks with the result coming through in three weeks, which makes 21 weeks. If the tests are inconclusive, that gives time for them to be carried out again and produce a result by 24 weeks. I gather that it is not all that common for the tests to be inconclusive.
I agree with the noble Lord, Lord Winstanley, that it is highly undesirable for, I should say, not just the mother but the father as well to have to make a decision as to whether there is an abortion. I should hope that it would be a family which was involved and not a single parent. Single parents happen, but so far as I can see it is a family matter and a family decision.
At the same time, I understand that there are certain tests that are getting much earlier and that tissue sampling of the foetus—I believe it is called chorion biopsy—can be carried out between 8 and 10 weeks with the result coming at about 12 weeks. That is not for all disabilities. There are still some disabilities that it is difficult to discover up to 28 weeks or beyond, particularly where the disability is a mental one.
I worry about whether medical facilities throughout the country are up to scratch and can produce results at the time required. That started me swinging against the Bill. I am rather like a pendulum on this Bill. I have been swinging for it and against it, because it is an extremely important matter. I have been trying to give it the consideration that it deserves.
It is not often that we have a Bill from the Bishops' Bench. I have, as the House will know, railed from behind the Bishops' Bench at the Bishops' Bench for not supporting certain ethical questions in the past. This time I congratulate it.
I understand that medical services are improving, that more doctors are being trained in the services and that we should be able to discover the disabilities, where they are discoverable, within reasonable reach of where patients are. It is obvious that from time to time there will be human error. We have human error with every Bill with which we deal. It is virtually impossible to legislate against human error.
I finally come down in favour of the Bill. With regard to disabilities, I have spent most of my working day raising funds for John Groom's Association for the Disabled. I see around me people with extremely severe disabilities. I know what worthwhile people they are when given the chance and the right facilities. Not only are we improving the methods of diagnosis so that a decision on abortion can be made early enough in most cases—if it has to be made—but we are also improving the life of disabled people when they are born.
The noble Lord, Lord McGregor of Durris, produced the results of a survey. He will correct me if I am wrong, but I believe that he said the sample was 19. That is not a very large sample and I believe that most scientists would be unhappy with the results of a survey of only 19. To get the real results from a survey of that kind one needs to see the questions that have been asked, because they can well skew the results. I have come across a number of people who have had a 1434 great deal of joy and pleasure from their disabled offspring—both mentally and physically disabled.
This is an extremely difficult subject. It is full of emotion. I have deliberately tried to keep away from the question of abortion because in some respects that is a different subject altogether. I know that it is tied in with this matter, but we are debating the age of a foetus when it can be deemed to be viable, if born, given proper medical attention. We must legislate for proper medical attention. We must keep up to date with the advances of medical and other sciences. We change our business practices. We are gradually changing from a heavy industrial manufacturing country to a service-providing country because that is what the world economy needs. However, that is a totally different subject again. We have to bear in mind and keep up to date with this kind of legislation on medical advances.
I welcome the Bill. I think that it may have some difficulties. I have spent a long time arguing with myself about it as well as listening to your Lordships' arguments, but on the whole I come down in favour of the Bill.
§ Lord Taylor of Blackburn
My Lords, before the noble Lord sits down, has he done any checking or conducted any survey throughout the United Kingdom, or throughout England and Wales, of how many units or hospitals are equipped and available to do the testing?
§ Lord Taylor of Blackburn
My Lords, the noble Lord referred earlier to the inquiries which he had made of a friend in London as regards the testing.
§ Lord Swinfen
My Lords, I made inquiries from one of the professors at Guy's Hospital. I was told that there are areas of the country where it is not available. It is available, within reasonable reach, throughout the majority of the country, and the position is improving.
§ 10.14 p.m.
The Earl of Halsbury
My Lords, before proceeding to the subject of the debate, I should like to say that when the noble Baroness, Lady Braye, spoke her opening lines, I could tell that she was going to be a natural for your Lordships' House. I shall look forward to hearing her on many occasions in the future.
I take this opportunity to thank the right reverend Prelate for taking the initiative on this matter. Let him not be discouraged by the fact that the noble Lord, Lord Houghton of Sowerby, who I am sorry to see is not in his place, drew attention to the fact that the right reverend Prelate had spoken for 23 minutes. I can assure him that I have heard the noble Lord, Lord Houghton, speak for much longer than that on many occasions. I hope that the right reverend Prelate will not withdraw the Bill and will stick to his guns.
I am sorry that the noble Lord, Lord Houghton, is not in his place. It is not his subject and so I do not suppose that he would be familiar with the words of 1435 the Prophet Amos, who was among the herdsmen of Tekoa and who said:Thus saith the Lord; For three transgressions of the children of Ammon, and for four, I will not turn away the punishment thereof; because they have ripped up the women with child".That may be the kind of statement that my noble friend Lord Henderson calls "emotional". However, it expresses the primitive emotion of a herdsman, accustomed to caring for his sheep in the lambing season, on seeing pregnant women and their children destroyed. I do not think the noble Lord, Lord Houghton of Sowerby, is that kind of Ammonite. However, there is another kind of ammonite, an almost jumbo-sized snail which survives in fossilised form and which used to crawl about the primitive oceans of the palaeozoic era. I think the noble Lord, Lord Houghton of Sowerby's legalism is the kind of fossil we do not have to consider too seriously.
The 1985 concordat and the Infant Life (Preservation) Act have been argued as bearing on the Abortion Act. There are two Committee stage points as to which I should like to put your Lordships on notice. The first point is that in the last 12-month period three children have been born at 23 weeks' term. Quite clearly, the original 28 weeks' term is falling behind medical science and the provisions of that Act must be updated. Therefore, I should like to see the provisions of the right reverend Prelate's Bill extended from 24 to 23 weeks.
The second Committee stage point is borne on by the remarks of the noble Lord, Lord Winstanley. I think that this Bill will need consideration of a schedule of consequential amendments at Committee stage because, in so far as the Abortion Act refers to the 1929 Act, it will have henceforward to refer to the 1929 Act as amended by this Act.
I have been informed that 61 per cent. of abortions at 23 weeks and over involve foreigners in private clinics.
I do not believe that any new problem is raised by AIDS. You cannot kill people because they are handicapped or because they may die soon in any case. You cannot kill people because their parents are too young to bear them. You cannot kill people because nobody loves or wants them. The old commandment "Thou shalt not kill" survives.
I acquiesce in the Abortion Act for one reason only and that is that abortions will take place and the only issue is whether or not they take place in back streets, with all that that implies, or whether they take place under some kind of regulation. That is the condition under which I acquiesce in the abortion acts such as they are.
Where is our old sense of self-respect? Do we want Britain's doctors to be the abortionists of Europe? I find the idea totally repugnant. There again, my noble friend Lord Henderson will say that I am being emotional. I am emotional. I have seen the film called "The Silent Scream", I wonder if the noble Lord has, where by ultrasonic methods one can see the foetus being torn to pieces within the uterus. Abortionists who have seen it are so shocked by what they have done that they have decided never to do another abortion. That is public knowledge.
1436 There is something sick about our society. You may not take the life of a murderer, however vile, by capital punishment but you may kill as many children as you like, however innocent they may be, provided they are in utero and have not yet taken their first breath.
The noble Lord, Lord Henderson, asked that his moral outlook should be respected as other people's are. But I cannot understand that the noble Lord has a moral outlook other than his own opinions on any subject. If I am going to be guided by other people's opinions I should much sooner be guided by the Pope or the most reverend Primate in what is right or wrong, than by the private opinions of my noble friend.
We must bring old legislation up to date. It is a continuous process within this Palace. I must resist the amendment of the noble Lord, Lord Houghton of Sowerby. I am sorry that he is not here to reply to me. He and I have called one another fossils on many occasions in the past and he knows very well that though we often take sides against one another in this Chamber we are on very good terms in the Library or over a cup of coffee. We have been friends and allies on some occasions and opponents on other occasions. He will forgive me for having spoken my mind about his amendment in his absence. I support this Bill and hope that the right reverend Prelate will go ahead with it notwithstanding.
§ 10.20 p.m.
§ Baroness Lockwood
My Lords, whatever might have been said from different parts of the House, the fact remains that there is a lot of common ground among your Lordships. The right reverend Prelate the Bishop of Birmingham said that the Bill was not concerned with abortion. He said that he himself was not opposed to abortion as such, and that in certain circumstances it was justifiable. I think all of us would agree with him that we want to see fewer late abortions, and that is common ground among all Members of your Lordships' House.
Some noble Lords who have spoken may take that rather further and be opposed to abortion in its entirety, but whatever position we may have within the different religious sects in the country I think that all of us are agreed on moral grounds that late abortions are to be avoided. We are concerned morally. The families involved are also concerned on psychological and emotional grounds.
The point at which we differ is the point raised by my noble friend Lord Houghton. How can we bring about a reduction in late abortions? There is the legislative route and there is the administrative route. The administrative route was chosen by the then Minister for Health in 1985 and has been supported by subsequent Ministers for Health. The right reverend Prelate is choosing the legislative route.
We have to look at the consequences of the legislative route. He referred to the small number of cases that were involved in abortions beyond 24 weeks. The noble Lord, Lord McGregor, extended that figure to something like 470, because he included the two weeks from the 22nd week to the 24 week. It is fairly widely accepted that if you put a legal limit of 24 weeks in the Bill, in practice 22 weeks is likely to become the operative date. I think it was on that basis 1437 that the noble Lord, Lord McGregor, brought forward his figures.
I would agree again though with the right reverend Prelate that even though it might be a small number, we must concern ourselves about it. But the issue is not quite so simple as it appears on the surface. As well as concerning ourselves with the foetus, the viability of the foetus and the subsequent life of a child, we also have to concern ourselves with the mother.
The noble Lord, Lord Henderson, said that there was no single moral view. He is right there. There is no single moral view, and it is a moral stance also to be concerned about the position of the mother and, as the noble Lord, Lord Swinfen, said about the father too, because we are thinking in the family context. We have to think of what is going to happen to the family as a consequence of reducing the possibility of abortion.
Again like the noble Lord, Lord McGregor, who I thought spoke eloquently about the women involved, we have to ask who are these women and what are the consequences for them. They are caught in four separate sets of circumstances and some of them are covered by more than one of the sets.
The right reverend Prelate tended to limit some of the circumstances too easily, I felt. The first is the inefficiency within the National Health Service which relates to late referrals. I understand that in some cases there is uncertainty and further tests have to be made, so a certain amount of delay is built into the diagnosis. Nevertheless, irrespective of what happens to the Bill we need to consider seriously the inefficiencies within the service to ensure that we do not condemn or submit more women to this dreadful decision at a late date because of the inefficient system. It is a practical problem that we must take account of anyway.
The second set of circumstances relates to foetal abnormalities. A number of your Lordships have spoken about this. The noble Lord, Lord Winstanley, indicated from his medical point of view that despite progress within the medical sciences there are still cases where diagnosis is not possible until very late in the pregnancy. We have to take account of that. Indeed, the studies to which many of your Lordships have referred, including that of the Royal College of Obstetricians and Gynaecologists, have indicated that a significant minority of cases with foetal abnormalities are not diagnosed until the 25th or the 26th week.
We have to think of the trauma that involves the family in such circumstances. They may be looking forward to a first child or a child to complete the family. Then they are faced with this information and they have to make a decision. It is a difficult decision to take: whether to go through with the pregnancy or whether to terminate it. We must have compassion for families in these circumstances.
Another problem is now emerging. It is the problem arising from the AIDS disease which has occupied the minds of your Lordships on a number of occasions in recent times. This is a new factor that enters into this whole area of abortion. AIDS is now moving into heterosexual activity and innocent victims are involved. A wife may find herself pregnant and realise that she is carrying a child which could be born with the AIDS disease through no fault of her own. It may 1438 be the fault of her husband, but it is not her fault. What do we do in circumstances such as those? It may be late in the pregnancy when the situation is diagnosed. We must be concerned with that.
The third area of concern mentioned by the noble Lord, Lord McGregor, is that of young teenagers. Some 50 per cent. of late abortions are to young people under 20, according to the study of the Royal College. The pregnancies of some of these girls are not necessarily due to promiscuity or curiosity. Sometimes it is a consequence of abuse or rape and that leads to difficult circumstances. This is a group that needs our understanding and sympathy.
The fourth group has not been mentioned. It might be a rather difficult group for us in your Lordships' House to understand because in a way we are a well-organised group of people. Those who can be listening to or participating in a debate at half-past ten at night have to have some order in their lives; otherwise they would not be able to be here.
I am now talking about that group of women who are socially and psychologically alienated from society. We all know of such groups: women who cannot cope with a situation, let alone cope with an abortion situation. And these are the women who so often are late in going to their own GP—if they have one. Sometimes they are not even on a GP's list. There is a great deal of sadness surrounding the lives of such families, and these are the groups who would be caught by this particular change in the law.
The right reverend Prelate referred to teenagers and said that if they knew it was going to be 24 weeks they would make up their minds and seek assistance before the 24th week. I am not sure that I quite agree with him. I am not sure whether some of these people could actually do that. Therefore I suggest that these are the people who most need our help and who suffer in a way which would not be changed if we changed the law. In other words, their circumstances would remain as they are now.
Therefore I think we have a very difficult situation. We are concerned to give life to the foetus and to protect it, but we are also concerned for the position of the mother and the family. I believe that the dividing line between our moral duty to one group and to the other is a very difficult one indeed. For my part, I would come down on the side of working with the administrative improvements that have been referred to by a number of your Lordships.
I should like to see a tightening up of the procedures and the administration within the National Health Service, facilitating medical research and advances in medical science, more easily available facilities for pregnancy testing and made more uniform throughout the country, with more information on health education and counselling, particularly for young people, and in areas where they are most likely to see that information and to be able to take up opportunities for counselling. If we could proceed along these lines in a positive way we might do more towards bringing about the objectives for which the right reverend Prelate has put forward his Bill than if we pursue the legislative way he has chosen.
§ 10.33 p.m.
§ Viscount Craigavon
My Lords, I once again apologise to the noble Duke for interrupting him as I did; but I was afraid that the very graphic description he was giving of a method of abortion, unchallenged, would gain currency coming from him. In fact, as I shall explain later, the method of abortion the noble Duke was describing scarcely takes place any longer, certainly not in the private clinics, and certainly not after 24 weeks—which is the issue in the Bill we are talking about.
I should like to refer to one of the key reports in this debate, which is the Joint Report on Fetal Viability and Clinical Practice. Perhaps I may read a passage from the introduction on page 9, where there is a brief comment of the committee to the effect that it was issues of clinical, and not legal, importance which they were addressing. It says:There is a need to distinguish between the clinical desirability of a change from 28 weeks and the legal consequences of recommending such a change. The Committee, recognising the complexity of the present legislation relating to fetal viability, did not address themselves in detail to the legal issue, but concentrated on clinical considerations. For this reason they did not attempt to define viability in terms that would be legally aceptable but have described it as it is used by clinicians.Given that objective, it is quite possible for an organisation which has been represented on the committee not to agree with the legislation proposed by the right reverend Prelate. I gave the example of the British Medical Association, which has specifically said that it does not support the right reverend Prelate's legislation although it was represented on this committee.
The next point that I hope to put right is the, in my opinion, misapprehension from which the right reverend Prelate was suffering about the role of the private sector in late abortions. He was trying to denigrate the present system, which I believe he was calling a gentlemen's agreement, and was hypothesising that this agreement might change because the Minister changed, which, in my opinion, is a ludicrous idea. I hope that the Minister can tell us exactly what is the present situation in the private sector and can confirm what I say. The trouble is that because of the nature of this Bill we have a Minister answering and doing his best, but speaking, as I understand, from the Home Office. A lot of the issues that we address to him relate to the DHSS and that is another difficulty about this debate.
My understanding of the role of the private sector at present is that in 1985 the Minister of Health acted to lower the time limit by administrative controls rather than by introducing legislation. In future, any private abortion clinic would lose its licence if it performed abortions after 24 weeks. That is the position and all clinics now comply with that demand. Also, another control is that the DHSS regularly visits non-NHS abortion clinics to ensure that these regulations are being put into effect. Any clinic not meeting the department's requirements risks having its licence withdrawn. That is slightly more than a gentlemen's agreement.
The reason why I am afraid that some speakers have been under a misapprehension is the briefing material which they have been given. I think it has been 1440 circulated by the National Council for Christian Standards in Society. It is an A4 sheet containing extracts from the report of the Royal College of Obstetricians and Gynaecologists. That is correct, but it is dated 1984 and the figures on which that report is based date from 1981 to 1982. It is from that sheet that some of the figures we have been given tonight derive.
Right at the beginning, the right reverend Prelate read out that over 70 per cent. of the total late abortions are done in the private sector. What I have just said is that the private sector is not now concerned with abortions after 24 weeks. That does not apply. Similarly, on this bit of paper there is a graphic description of dilation and extraction and it says that that method is used in 33 per cent. of abortions between 24 and 27 weeks. The noble Lord nods, but these statistics relate to the practice in 1981, the report was in 1984, the results were corrected in 1985 and we have had this voluntary agreement since that no private clinics operate in this time-scale.
The noble Duke must also have read this paper and the letter which was written with it, when he referred to this country as being the late abortion capital of the world. The figure which has been quoted of 33 late abortions for 1985 is made up of 31 abortions for residents of England and Wales and two for foreigners. So far as this Bill is concerned, when the noble Duke, the Duke of Norfolk, says that the Bill will cure the problem of this country being called the late abortion capital of the world, we are speaking of only two abortions. Therefore, I am afraid that he has been misinformed in the same way.
§ The Duke of Norfolk
My Lords, I am honestly unable to produce the figures or the statistics. However, I think it is relevant for me to say that in the other countries of Europe, one is not allowed to perform such procedures after 12 weeks. I wonder why that is so.
§ Viscount Craigavon
My Lords, that may well be a valid point, but what I am referring to and what this Bill is addressing is the problem of abortions after 24 weeks. To repeat the figures for 1985, the number of abortions affected was in fact two in this country.
I oppose the Bill for a number of reasons. I am even more convinced this evening that this very simple Bill cannot bear the weight that has been placed upon it by all the mass of detailed and complex considerations and the ramifications that have emerged tonight. The Bill is altering a general principle, but it is ignoring the detailed implications of that change. That is why I support much wider and more general discussions in this whole area before any change is made.
The noble Lord, Lord Houghton of Sowerby, has already shown how the sympathetic use of directions and guidelines by the DHSS and organisations like the BMA can provide an effective and flexible approach.
I have spoken to many people, both inside and outside this House, about this Bill. Superficially this simple Bill sounds perfectly plausible. But when one starts explaining the effect of the Bill in terms of individuals and the tragic human details, people realise that it is not the black and white gut issue that they may first have supposed.
1441 In my opinion, the right reverend Prelate has recently had a good run in the media by talking about killing children who are capable of being born alive. If one does not qualify that (which I know is difficult in the journalistic context), there is a general presumption that the children concerned are perfectly normal and viable foetuses which are being done away with. However, of the 1985 figure of 33 abortions after 24 weeks, in almost certainly the majority of cases there would be serious congenital abnormalities. As has been said, the sooner medical science and human shortcomings can improve the system to deal with these cases at an earlier stage the better. But provision must still be maintained to deal with the unfortunate and tragic hard cases.
Several speakers mentioned a promising system called chorion biopsy. It is justifiable to mention that system. But it is in the very early stages and its use unfortunately causes too many miscarriages at the moment. The development time to perfect the system is about two or three years. In addition, as the noble Lord, Lord Swinfen, has said, it does not cover certain abnormalities such as structural abnormalities. That is as I understand it.
Perhaps I may concentrate for a moment on congenital abnormalities. The right reverend Prelate has said that 33 lives are worth saving. However, in many of those cases I should wish to say, "What sort of life and saving for what?" A clear example concerns foetuses with anencephaly—that is, no brain at all. There is absolutely no chance of survival and the prognosis for life outside the womb is a matter of minutes. What sort of life is that child being saved for?
I have the most recently published breakdown of congenital abnormalities in legal abortions at 20 weeks or later from a paper which the noble Lord, Lord McGregor, mentioned. It was published in The Lancet of 2nd June 1984 by Professor Eva Alberman. The paper uses figures for 1982 of confirmed congenital abnormalities. Taking anencephaly, in weeks 25, 26 and 27 gestational age, there are two, one and one terminations respectively for that reason.
The summary says:A reduction in the legal age of fetal viability to 24 weeks, in the absence of any other change in practice, would have stopped an estimated 26 abortions for confirmed serious fetal defects other than anencephaly in 1982.There have been beneficial changes in practice since then, and we are urging that they be continued. But there is still the question in the context of this Bill as to what should happen with foetal abnormalities which, for one reason or another, can only be dealt with after 24 weeks. It seems to me that the controlled flexibility allowed by the present system provides the best answer.
I know that I am taking the clear-cut case of anencephaly, but I am doing so because if there is no agreement on that there is not much hope of agreement on less clear-cut cases. Obviously, one is hoping to diagnose in less than 24 weeks, but I am hypothesising here the case where that has not happened. If it is finally confirmed to a woman that, at 25 weeks, her foetus is anencephalic, are we now saying that she has no choice between an abortion or a carrying to term with a prognosis for the foetus at 1442 birth of probably a matter of minutes? That choice would obviously be different for different women, and in that tragic circumstance a choice that in my opinion is equally dignified can occur in both cases.
I am content that some people should be guided by their own religious principles in making that decision; but I should not want the guidance of religion to be paramount in that area. This was put particularly well by the noble Lord, Lord Henderson of Brompton, and I would agree with him and with the noble Lord, Lord Houghton of Sowerby, in very much hoping that the right reverend Prelate will feel able to withdraw this Bill tonight.
§ 10.47 p.m.
§ Lord Silkin of Dulwich
My Lords, my noble friend Lord Longford said in the course of his remarks, with absolute correctness, that on this side of the House—and I am sure in all quarters of the House—there is no party line or party whip, and though I speak from the Front Bench I speak in my personal capacity. However, on one matter I am quite certain that I can speak not only in that capacity but on behalf of my party; that is, in congratulating the noble Baroness, Lady Braye, on her admirable maiden speech, which was none the worse for—indeed, very much the better for—its brevity and for the sincerity with which it was spoken to the House.
It would not profit the House for me to seek to review the arguments on each side of this matter. Whatever the result may be tonight, the right reverend Prelate has done a service to the House in enabling those arguments to be placed before the House at very great length on both sides so that those who, like at least one Member—I think it is the noble Lord, Lord Swinfen—are teetering on the edge of decision may be better able to make up their minds.
What I should like to do, therefore, is rather to seek to assist the House, if I can, by saying as succinctly as possible what I think are the right approaches to the question which is before the House and what the tests are which ought to be applied. Before I do that—and I hope to do it quite shortly—it would be as well to see exactly what this Bill is seeking to do, since there has been some argument about it. It is a very short Bill and it directly seeks to do no more than amend the Infant Life (Preservation) Act 1929. Indirectly, of course, it affects the Abortion Act 1967. But the difference between the Infant Life (Preservation) Act and the Abortion Act is very significant. The Infant Life (Preservation) Act established a criminal offence punishable by a maximum sentence of life imprisonment.
In seeking to amend that Act so as to reduce from 28 weeks to 24 weeks the period after which it is to be presumed that a child who has been destroyed would have been capable of being born alive, this Bill places upon the defendant the burden in respect of that period of proving his innocence, whereas the law at the moment is in the normal form; that is to say, it is for the prosecution to prove his guilt. The House must start with that knowledge and must ask itself whether anything we have heard tonight justifies altering that burden of proof in a way which Parliament is disinclined, and rightly disinclined, to do, particularly 1443 when the offence is so serious as to be considered in some cases to justify imprisonment for life.
The issue is not, as some noble Lords have suggested, simply a question of whether it is today medically possible to ascertain after 24 weeks of pregnancy that a child will be seriously deformed or comes within the wording of the Abortion Act as enabling an abortion to take place. There can be many different views on that point. I have listened as a layman to the various views that have been expressed. It may be that medical science has advanced or is advancing to the point at which one can say 24 weeks now, 28 weeks formerly. So far as I was concerned, I certainly was not convinced that that was so. But even if I had been convinced, I should still have had to be convinced that the circumstances would be such as to place those concerned on inquiry in sufficient time for them to take the steps with the doctors in order to discover whether the deformity existed. That is crucial.
I am content to leave that issue in abeyance as not being the real issue before the House, valuable though it has been for the House to have gone around the question and found out from those who have the best evidence what the different views may be. But when we come back to the reality of what we are seeking to do, the questions which I suggest the House must ask itself, and which I have asked myself, are two fairly simple ones, bearing in mind once again that in this Bill we are altering the criminal law in regard to a very serious offence to the disadvantage of the accused person.
The first question is this. Have we heard any evidence of serious abuse which justifies a change in the law? I listened to all the speeches in the hope that one of them would contain the suggestion of abuses that are known to exist in the period between 24 weeks and 28 weeks and would justify such a dramatic change in the law. In recent times we have dealt with amendments to public order legislation and other legislation and in every case the Government or Members of the House have drawn our attention to abuses which have taken place which justified changes in the law to the disadvantage of the defendant. I have not heard a single word of evidence to suggest that abuses exist in this particular area. Therefore for my part I suggest to the House that, on that test, the case has not been made for the Bill.
The second test that I put forward is this: will legislation on these lines set at rest the controversies on abortion which existed before the 1967 Act and which have existed ever since although they have been stilled to a considerable extent over the past few years? Is the Bill likely to set at rest those controversies? I can only say that far from doing so it seems to me that the Bill will only stir them up. Both in this place and in another place the controversies which have raged over this matter will be revived, not merely over the question of this amendment to the Infant Life (Preservation) Act but on the whole question of the boundaries within which abortion should be permitted. Therefore I say that on that test too the justification for the Bill has not been shown to exist. I know of no other test which the House ought to apply.
1444 There has been difficulty and uncertainty as to exactly what would happen in the event of this Bill, or something like it, becoming law. One cannot of course leave out of account the indirect effect it would have on the provisions of the Abortion Act 1967. I confess that I took a substantial part in the debates in another place on various amendments to that Act which were from time to time brought forward. I always found great difficulty in understanding the provisions of Section 5 of the Abortion Act. It may be that other noble Lords were clearer in their minds about it than I was, but let me simply explain the difficulty and what I think is the solution.
Section 5 of that Act, which has been referred to more than once in the debate, has two subsections. I take the second subsection first. It provides that for the purposes of the law relating to abortion, which is the Offences Against the Person Act 1861, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by Section 1—the section which provides the various justifications for medical practitioners to carry out an abortion.
That is clear enough. It is saying that the Abortion Act, within those limits, overrides the provisions of the previous law relating to abortions which until then applied irrespective of the circumstances. But then Section 5 (1) states something which, on the face of it, contradicts that. It states:Nothing in this Act shall affect the provisions of the Infant Life (Preservation) Act 1929 (protecting the life of the viable foetus).As I explained earlier, the Infant Life (Preservation) Act provides that where a child which is capable of being born alive is destroyed, unless to save the life of the mother, that is an offence which is punishable by imprisonment for life. If that provision is retained, what on earth happens to the provisions that go to the previous abortion law? In other words, why can one not always, except where the mother's life is in issue, go under the Infant Life (Preservation) Act and forget about the previous abortion law altogether, even in cases where there is liable to be substantial malformity, which is expressly provided for in the Abortion Act? Obviously Parliament could not permit that.
I could not follow the apparent discrepancy until I went back to the debates in this House on the provisions of the Infant Life (Preservation) Act when it was a Bill, and then all become clear. In 1929 a learned judge expressed the view—rather a bizarre view perhaps—that where a child had been practically born but still attached to the mother, and in that condition someone, maybe the mother, maybe somebody else, destroyed the child, it could not be murder because the child was still part of the mother and it could not be abortion because there was not a miscarriage and therefore it may be that no offence at all was committed.
In the light of that, noble and learned Lords, including the noble and learned Lord on the Woolsack in those days, whose name was Lord Hailsham, brought in legislation in the form of the Infant Life (Preservation) Act 1929 to deal with the question of what happens—one may think it very unlikely but they thought it quite likely—where some ill-advised or wicked person, whatever one calls it, destroyed a child 1445 still attached to the mother. Tht is why that Act has been preserved in the Abortion Act 1967, although the abortion lam, has been greatly amended.
If one takes the view that that is right (I have all the debates here so that noble Lords can look at them if they have any doubts, and it is quite clear from the debates that that is what they were talking about in those days) all that this Bill would do is to affect the situation where somebody (I do not know whether it ever happens these days) destroys a child still attached to its mother between 24 weeks and 28 weeks of pregnancy. I do not believe that the right reverend Prelate thought that he was doing that, but I can assure him that that is what he would be doing.
On that basis as well I suggest that the Bill is quite misconceived, and I very much hope that the right reverend Prelate will think it right after this most valuable debate to withdraw the Bill.
§ 11.3 p.m.
§ Lord Beaverbrook
My Lords, I have listened with great interest to the views expressed in your Lordships' House on this important and sensitive subject. The right reverend Prelate the Bishop of Birmingham is to be congratulated on his decision to introduce a measure which is designed to reflect the advances of medical science. I should like also to congratulate my noble friend Lady Braye on an excellent maiden speech. I am sure that your Lordships will agree with me when I say that we all look forward to hearing more from her in future.
The law in England and Wales relating to abortion is somewhat complicated and arises from an interaction among the Infant Life (Preservation) Act 1929, which this Bill seeks to amend, the Abortion Act 1967 and the Offences Against the Persons Act 1861.
It may be helpful to the House if at this stage I confirm, as the noble Lord, Lord Houghton of Sowerby, told us, that the Infant Life (Preservation) Act 1929 does not extend to Scotland. I am advised that the very different historical background to the law of Scotland in this general area would make it impracticable to extend that Act to Scotland.
Under the 1929 Act, it is a criminal offence to destroy the life of a child capable of being born alive before it has an existence independent of its mother. The Act creates a rebuttable presumption that a woman who has been pregnant for 28 weeks or more is carrying a child capable of being born alive. No offence is committed where the termination is carried out in good faith to preserve life of the mother. The Offences Against the Person Act 1861 makes it an offence to procure an abortion. However, the Abortion Act 1967 provides that a person shall not be guilty of an offence relating to abortion when a pregnancy is terminiated on the authority of two doctors for certain specified reasons and under designated conditions. The doctors must be of the opinion either that if the pregnancy continued it would involve greater risk to the life of the woman or to the physical or mental health of her or her existing children than if it were terminated; or that there is a substantial risk that if the child were born it would be seriously handicapped by physical or mental abnormalities.
1446 Nothing in the 1967 Act affects the provisions of the 1929 Act. The effect is that the 1967 Act cannot be used, to authorise an abortion where the pregnancy has reached such an advanced stage that a child is capable of being born alive unless the mother's life is at stake. Under the 1967 Act an abortion may only take place in a National Health Service hospital or in a hospital specially approved by my right honourable friend the Secretary of State for Social Services.
The right reverend Prelate raised the matter generally of the Abortion Act 1967. Successive governments have remained neutral on proposed amendments to the criteria under which an abortion is permitted by the Abortion Act 1967. We share that attitude. This is a matter that is best left to the individual beliefs of noble Lords. It is not a matter on which it would be appropriate for the Government to take a view.
I should emphasise that the 1929 Act protects all foetuses capable of being born alive. It does not provide a time limit above which it will always be an offence to perform an abortion or below which abortions under the 1967 Act criteria are always permissible. It is an offence under the 1929 Act to destroy the life of a foetus of less than 28 weeks which is capable of being born alive, unless it is to save the mother's life. Equally, no offence is committed if action is taken to destroy a foetus of more than 28 weeks which is not capable of being born alive.
The time limit in the 1929 Act only creates a rebuttable presumption. Thus, if the foetus was less than 28 weeks, to obtain a conviction the prosecution would have to prove beyond reasonable doubt that the foetus had been capable of being born alive when the abortion took place. Conversely, if the foetus was over 28 weeks, the accused would not be guilty of an offence under the 1929 Act if he proved on a balance of probabilities that it was not capable of being born alive.
The right reverend Prelate mentioned the accurate ascertainment of the gestational age. The Abortion Act 1967 only gives the Government power to make regulations on abortions under the Act. To answer the question that the right reverend Prelate asked me, it does not give power to require records to be kept on births in general. That would require legislation. It could not be done in this Bill and would be outside its scope. I can assure the right reverend Prelate that we shall consider further the need for these changes and, if they are desirable, how they should be achieved.
The time limit in the 1929 Act simply fixes an age at which it can reasonably be presumed that the foetus would be capable of being born alive. That time limit was fixed when the Act was passed in 1929 and clearly reflects the state of medical science at that time. The question therefore arises: does this limit reflect modern medical science or should it now be amended?
The right reverend Prelate has already explained that, in the opinion of the Royal College of Obstetricians and Gynaecologists, the answer to that question is no and the 1929 Act should be amended to take account of advances since its enactment. That is the purpose of this Bill. The report on Fetal Viability and Clinical Practice of the Royal College of Obstetricians and Gynaecologists remains the best 1447 advice that we have about the gestational age after which a foetus should be considered as viable. The Government could not therefore support the introduction of a limit below the 24 weeks that the report recommended.
In 1980 we invited the Royal College to consider the question of foetal viability. In 1985 we received from it a document: Fetal Viability and Clinical Practice. This presented the agreed views of the Royal College itself, the British Paediatric Association, the Royal College of General Practitioners, the Royal College of Midwives and the British Medical Association. During the right reverend Prelate's speech there was some discussion about the BMA's attitude. The BMA has not been in touch with us about the Bill, but it was represented on the committee which in 1985 recommended a reduction from 28 weeks to 24 weeks. Its representative agreed with the committee's recommendation.
The committee recommended that the presumptive age of capacity to be born alive should be reduced from 28 weeks to 24 weeks. The report acknowledged that the Infant Life (Preservation) Act 1929 is about whether or not the foetus is "capable of being born alive" rather than "viable" (that is, capable of being kept alive). However, it commented that the 1929 Act had an influence on clinical practice, clinicians tending to interpret the figure of 28 weeks as the state of pregnancy below which a baby has little chance of survival. The report concluded that this figure is no longer appropriate and quoted a survey in 1982 revealing that the chance of survival of babies of 26 and 27 weeks' gestation was greater than 50 per cent.
So far this advice from the Royal College has been implemented by administrative action. As I have explained, abortions may lawfully be carried out only in National Health Service hospitals or in hospitals approved by the Secretary of State for Social Services. In practice, clinicians now apply a 24-week limit in accordance with the Royal College's advice. In the private sector only a limited number of approved places are permitted to carry out late abortions and in this the Secretary of State has made it a condition of approval that they will not permit abortions to be carried out after 24 weeks. As the right reverend Prelate explained, his Bill carries through this change into the law by replacing the 28-week limit in the 1929 Act with a 24-week limit.
Since the 1929 Act was introduced there have clearly been technical advances. Foetuses of less than 28 weeks' gestation, which would at one time have stood little chance of surviving after birth, now have a greater chance of survival. The noble Duke, the Duke of Norfolk, gave an example of that. The Royal College's working party was clearly concerned that the 1929 Act should take account of these scientific advances and should reflect good obstetric practice.
The Government agree with the right reverend Prelate that the law should now reflect those changes and we support the Bill he has so ably introduced. If your Lordships agree with me that this Bill should indeed be read a second time some amendment may be necessary in Committee. As it stands, the Bill makes no transitional provisions. If enacted it would 1448 apply to all terminations, including those that took place before it was enacted. Thus in theory a doctor who, say, terminated a 26-week foetus five years ago could be prosecuted under the 1929 Act, as amended, and the onus would be on him to prove that the foetus was not capable of being born alive. This would hardly be just. An amendment seems necessary to ensure that the new limit applies only to terminations which take place after the Bill comes into force. If the right reverend Prelate agrees with this we would be happy to assist him in drafting the necessary amendments.
At this late hour, I commend this measure to your Lordships' House.
§ 11.13 p.m.
§ The Lord Bishop of Birmingham
My Lords, some time ago I said that I introduced this Bill with trepidation and reluctance. I am sorry to have had to bring it before your Lordships' House. It is an unpleasant, emotive and sensitive matter. It is a subject on which we should all listen to one another and be tolerant of one another because we obviously disagree. It is a subject on which we have to accept one another's good faith.
I believe that it is a subject on which we must be sensitive to vulnerable groups. Your Lordships have spoken of vulnerable groups. One of the vulnerable groups that we must include is unborn children and their rights, because they cannot speak for themselves. I understood the noble Lord, Lord Winstanley, to say that there would be few whose abnormalities could not be diagnosed before 24 weeks. Of course those who are badly malformed die very soon. That does not necessarily give us the right to kill them, but it is a relief to know that they die fairly soon.
I should like to share with your Lordships' House an experience which I have had for the past nine years on the day before Christmas. I have celebrated with those in a mental hospital in which there are a large number of badly mentally handicapped people. I always find it a particularly moving occasion—one of the most moving that I attend. Although these people have a mental age of children, they call for affection and care from parents, nurses and doctors, and I really could not say that it would be better for them to be dead. I am sure that they would not think that. I feel bound to say that because they are a vulnerable group, as are other groups which have not received as much mention as they might.
Most of those who have taken part in this debate are men, but I am certain that we should listen to what women have to say. For that reason I, like many others, would like to thank the noble Baroness, Lady Braye, for what she said. I should also like to thank the noble Baroness, Lady Lockwood, for her intervention and for the way in which she held the balance in the matter.
I am more than grateful to the noble Lord, Lord Beaverbrook, for what he said and for the promise of government support, with some amendments, for the Bill. It has made me, and no doubt other noble Lords, think very deeply.
The noble and learned Lord, Lord Silkin, to whom one naturally listens with great respect and attention, asked what abuse had taken place. I wonder whether 1449 he can accept that for some of us the abuse is quite simple: that children who are capable of being born alive are killed. He may not accept that, but it seems to me to be an abuse. He also said that it would cause controversy. I wonder whether he would accept that there is controversy. There are many people who are deeply disturbed, and sometimes we have to face these unpleasant facts. He spoke about the origin of the Act, and it certainly has a very unsavoury origin. However, I wonder whether he would not accept that it is how the abortion Act is used, rather than its origins, which is of importance.
I am grateful to the noble Viscount, Lord Craigavon, for his correction, which I accept, about the changes that have taken place. I took what was in the 1984 report of the Royal College of Obstetricians and Gynaecologists to be what is happening now. I should like to apologise to your Lordships' House, and I am grateful, to the noble Viscount for pointing that out. However, I was not so grateful to him when, as I understood him, he said that of the 33 foetuses of 24 weeks or more most contained abnormalities. We do not know the reasons why those pregnancies were terminated.
I was grateful for what the noble Lord, Lord Winstanley, said. He referred to the medical services as insufficient. Others like the noble Lord, Lord Swinfen, and the noble Baroness, Lady Lockwood, also approached this subject. It is something to which great attention must be given because it is a terrible thing for a woman to be delayed administratively in this way. Surely this is a challenge to the National Health Service. If the Bill becomes an Act, the National Health Service must surely face up to the challenge rather than that we should not change the law because we think that the National Health Service is not really up to coping at the moment.
One could not hear the noble Lord, Lord Henderson, without sympathy, but I really wonder whether I am being exploited. No one has proposed the Bill to me; I have proposed it because I think that it is right. If the noble Lord thinks that it can be amended in another place in the wrong way, perhaps I may remind your Lordships' House that it can be amended in this House in another direction if your Lordships think fit. This is a matter which seems to have escaped the notice of some Members of your Lordships' House.
I should like to thank the noble Lord, Lord McGregor of Durris, especially for his plea for toleration and for his concern for single-parent families who are in very great need. I am not sure that all doctors allow a fortnight's grace. I should like to know the evidence upon which that statement is based, because I have searched and not found any such evidence. I was concerned that the noble Lord and others quoted statistics from the 20th week and after. Your Lordships will realise that this Bill is not concerned with the 20th week and after; it is concerned with nothing after the 24th week.
Finally, I must approach the words of the noble Lord, Lord Houghton of Sowerby. I listen to him always with respect. I was very grateful for his contribution on the Animals (Scientific Procedures) Bill, but I am sorry to have to disagree with him about 1450 this Bill. I think that moral matters are important and we ought to deal with them now. I thought I was dealing with ways and means, and I thought I gave reasons why administrative measures are not satisfactory in matters of life and death.
In matters of life and death we should have the assurance of the law. I understood that the law was there for protection of people. It seems to me that we need a change in the law, because as it stands it is not correct. It is no longer simply the case, as it was in 1929, that if a woman has been pregnant for a period of 28 weeks or more it can be proved prima facie that she is pregnant and the foetus is capable of being born alive. Rather, that is true, but we can also say now, because of the advances of medical science, that a woman who has been pregnant for 24 weeks is in that situation. The law ought to reflect the present situation. If this deterrent is so terrible at 24 weeks, it is equally terrible at 28 weeks. If it is such a terrible punishment, it exists in both cases.
I must explain why I bring forward this Bill. Perhaps I am naive, but it was for a very simple moral reason. It cannot be right to kill a child that is capable of being born alive. It ought to have its chance. I cannot believe that we and the Eastern European countries are the only countries that are in the right in this matter, because that would be the situation if we continue as we are.
I am a believer in the democratic process provided we do it tolerently. Amendments can be made to this Bill and if it seems good it will be passed; if it seems wrong it will not be passed. When I heard what the noble Lord, Lord Beaverbrook, and other noble Lords have said, I felt that I must put this matter to the suffrage of the House. I listened carefully to the pleas that I should withdraw the Bill but surely if people hold a belief in good faith the proper course is to submit the decision to the House. After great thought, that is what I think it right to do.
§ Lord Houghton of Sowerby
My Lords, I am so shocked at the speech that the noble Lord, Lord Beaverbrook, made that I cease to be interested in anything that the right reverend Prelate now has to say. The issue is joined fairly and squarely on the government statement.
The Government have gone yellow and deserted all those whose co-operation they sought in 1985 to carry out their existing policy of controlling late abortions by voluntary and disciplinary methods. I say this without fear of contradiction. If this Bill gets a Second Reading we shall have to fight all along the line for the removal of the clause of presumption of guilt from the 1929 Act and see that it does not appear in any amended law. I know of no law passed in recent years which contains any clause of presumptive guilt where the penalty is a maximum of imprisonment for life. That is a blemish upon our criminal law, and now it is to be retained. If the Government get their way, then I think we have to ensure that it comes out.
The right reverend Prelate may now make remarks to which we shall listen ad nauseam when he deals—if he does—with the Bill in Committee. There is a long, bitter trail ahead if this Bill gets a Second Reading. I warn the Government that they will lose the goodwill 1451 of many organisations and people, professional and otherwise, if they intend to take this line on the Bill.
I must press my amendment. I hope that the House will choose even at this late hour between legislation and voluntary and disciplined control. I sincerely hope that the majority of noble Lords will vote to put the Bill aside notwithstanding what the Government have said, so that we have a further opportunity of judging the experience of what the Government themselves sought to get, and obtained, from all concerned for this trial period of control other than by legislation. I sincerely hope therefore that those who are against the Bill will vote in favour of the amendment that it should be read this day six months.
§ 11.26 p.m.
§ On Question, Whether the amendment to the Motion (moved by the Lord Houghton of Sowerby) shall be agreed to?
§ Their Lordships divided: Contents, 31; Not-Contents, 41.
|DIVISION NO. 1|
|Craigavon, V.||McIntosh of Haringey, L.|
|David B.||Mackie of Benshie, L.|
|Dean of Beswick, L.||McNair, L.|
|Elwyn-Jones, L.||Monson, L.|
|Ewart-Biggs, B.||Morton of Shuna, L.|
|Henderson of Brompton, L. [Teller.]||Mulley, L.|
|Houghton of Sowerby, L. [Teller]||Oram, L.|
|Ponsonby of Shulbrede, L.|
|Howie of Troon, L.||Robson of Kiddington, B.|
|Irving of Dartford, L.||Silkin of Dulwich, L.|
|Jeger, B.||Taylor of Blackburn, L.|
|Jenkins of Putney, L.||Turner of Camden, B.|
|Lawrence, L.||White, B.|
|Llewelyn-Davies of Hastoe, B.||Wilson of Langside, L.|
|Lockwood B.||Winstanley, L.|
|McGregor of Durris, L.|
|Barrington, V.||Kinloss, Ly.|
|Beaverbrook, L.||Lauderdale, E.|
|Belstead, L.||Leicester, Bp.|
|Birmingham, Bp. [Teller.]||Longford, E.|
|Braye, B.||Lothian, M.|
|Brougham and Vaux, L.||Lucas of Chilworth, L.|
|Buckmaster, V.||Murton of Lindisfarne, L.|
|Canterbury, Abp.||Norfolk, D.|
|Chitnis, L.||Parmoor, L.|
|Coleraine, L.||Pitt of Hampstead, L.|
|Cork and Orrery, E.||Rankeillour, L.|
|Craigmyle, L.||Robertson of Oakridge, L.|
|Darcy (de Knayth), B.||St. Albans, Bp.|
|Denham, L.||Salisbury, Bp.|
|Fitt, L.||Saltoun of Abernethy, Ly.|
|Gainsborough, E.||Shannon, E.|
|Halsbury, E. [Teller.]||Stallard, L.|
|Harvington, L.||Swinfen, L.|
|Hemphill, L.||Tordoff, L.|
|Hooper, B.||Whitelaw, V.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty-five minutes before midnight.