Lords Sitting of 18 October 1990

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Gloucester.): The LORD CHANCELLOR on the Woolsack.

Runway Capacity in the South East
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
What progress has been made in the establishment of a working group to explore issues involved in decision making on additional runway capacity in the South East as announced by the Secretary of State on the day the Civil Aviation Authority presented its advice to Her Majesty's Government.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, we have been making progress during the Recess towards determining membership and terms of reference for the group. My right honourable friend the Secretary of State for Transport expects to be able to make a further announcement soon.
Baroness Burton of Coventry: My Lords, does the Minister realise that a widespread belief exists that this group was announced so that the Government would not have to take any decision on the matter before a general election? Therefore the delay of about 12 weeks in naming the personnel does not greatly matter. Can the Minister inform the House whether I am correct in thinking that when the original announcement was made of the groups to be consulted no mention of the consumer was made? I shall be grateful if the Minister can answer my question today, but if not perhaps he will write to me. Can the Minister tell the House the names of the groups which are being consulted?
Lord Brabazon of Tara: My Lords, this is an important matter. Great care is required in finding the right membership for the group. We envisage that about 20 organisations from both within and outside government will be represented on the group. We have had representations from considerably more organisations than that which feel that they should be represented. It is important that consumers should be represented on the group. The final list of those to be represented will be available, as I have said, fairly shortly.
Lord Jenkins of Putney: My Lords, is the Minister not aware that the majority of people in the South East believe that we need additional runway capacity as much as we need a hole in the head? I ask him to bear that group of people in mind. Can the Minister tell me whether representatives of the groups opposed to additional runways as well as those in favour of them will be in the group?
Lord Brabazon of Tara: My Lords, there will be those who are opposed to additional runways and who will wish to make their views known. I am not
1030
sure how many people are opposed to an additional runway in the South East; I know that a great number do not want an additional runway in their own back yard.
Lord Underhill: My Lords, does the Minister appreciate that I am one of those who is awaiting the report of this working group with great interest? We are not committing ourselves one way or the other to the CAA's advice. Does he further appreciate that I fully concur with the Secretary of State's statement that he is aware of the effect of airport development on the environment, employment and local infrastructure. Also taken into consideration will be the possible importance of regional airports. Therefore, the work of the working group is of great importance. I also concur with what the noble Baroness, Lady Burton, said about an early decision.
Lord Brabazon of Tara: My Lords, the noble Lord is quite right in saying that the CAA's advice was mainly concerned with air space capacity. It produced a number of alternative sites for a possible new airport. The group will be looking in particular at environmental and surface access considerations which need to be taken into account. My right honourable friend the Secretary of State said in his announcement that we very much see the value of the regional airports. He also said:
"I shall be asking the working group to assess this conclusion most carefully and to gauge the extent to which regional airports can play a part in meeting the overall growth in demand into the next century".
The Earl of Selkirk: My Lords, can my noble friend say whether this working group is concerned solely with the South East? Does it also recognise the value and importance of airports throughout the whole length of these islands?
Lord Brabazon of Tara: My Lords, the group is mainly concerned with the South East. That is where a shortfall in capacity is expected in the next century. As I just said in reply to the noble Lord, Lord Underhill, it will take into account what can be offered by regional airports.
Lord Whaddon: My Lords, will the noble Lord bear in mind the importance of including a representative from the general aviation community in the working group? Whether its machines are allowed to use this runway or not, the positioning and approaches to the runway will have a profound effect on general aviation machines.
Lord Brabazon of Tara: My Lords. I am aware of the importance of general aviation in this matter. I cannot yet say whether it will be represented on the group. If it is not, it will certainly have the opportunity to make its views clear.
Baroness Burton of Coventry: My Lords, I am not a candidate, but I am interested in the consumer aspect of this matter. Is the noble Lord aware that I believe the original statement contained no reference to consumer groups? Will he let me know which groups are to be consulted? Will he write to me with the answer or, alternatively, publish it in the Official Report so that the House may know the outcome?
Lord Brabazon of Tara: My Lords, in my right honourable friend's original statement he made reference to representatives from bodies representing local and environmental interests, from airport and airline operators, from the tourism and travel industry and from government departments. I shall of course take into account, as I have already said, the interests of the consumer.
Baroness Burton of Coventry: My Lords, surely air travellers are consumers. Does the Minister not agree that they should have been mentioned with reference to the group? That is the point I am making.
Lord Brabazon of Tara: My Lords, that is the point I have answered.

HIV-Infected Haemophiliacs: Compensation
3.8 p.m.
Lord Ennals Lord Ennals asked Her Majesty's Government:
Whether they will make a statement on the question of compensation for the 1,215 haemophiliacs infected by blood products contaminated with the AIDS virus, in the light of the recommendations by Mr Justice Ognall.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, the Government have already recognised the moral and compassionate arguments mentioned by Mr. Justice Ognall through their ex-gratia payments totalling about £34 million. This money has been made available help all HIV-infected haemophiliacs and not just those involved in litigation. We are committed to keeping the needs of all those infected haemophiliacs and their families under review.
Lord Ennals: My Lords, I thank the Minister for his Answer. But he was not talking about compensation, as those are relatively small sums. Is he aware that there is growing anxiety and deep feeling among Members on all political Benches and also among the general public that the Secretary of State is showing so little sensitivity to a group of people twice smitten—first, with haemophilia and, secondly, with HIV and AIDS through no fault of their own? Does he accept that if these unfortunate people are obliged to press their claims for compensation through the courts many of them may well be dead by the time the result is made known? Does the Minister agree that it is not a matter of cash but of honour?
Lord Henley: My Lords, I certainly agree with the noble Lord. It is an appalling tragedy that so many haemophiliacs were affected by HIV as a result of their treatment. That is why the Government came forward with the money which I mentioned in my original Answer. It amounts to about £20,000 for every affected haemophiliac and more for those whose needs are greater. The principle of paying full compensation only when negligence is proved applies generally and not just to haemophiliacs. There would be grave consequences for the practice of medicine and the
1032
funding of the National Health Service if compensation were to be paid whenever a patient suffered harm as a result of treatment but when no one was at fault.
Baroness Masham of Ilton: My Lords, if these cases are taken to court, can the Minister say how much the cost will be to the health service in legal costs and in medical time?
Lord Henley: My Lords, I cannot give an estimate of the full costs of litigation. Obviously such costs would be great and we recognise the argument that the resources likely to be taken up by such litigation would be better used on services for National Health Service patients. However, the point I made earlier to the noble Lord, Lord Ennals, still applies: care for patients would not benefit if, as the likely outcome of compromising the present legal action, this were to encourage other expensive litigation.
Lord Allen of Abbeydale: My Lords, would not some of these problems have been avoided if the Government had pursued with greater vigour the lines of inquiry suggested by the Pearson Royal Commission on compensation for personal injury in this very difficult area of medical accidents?
Lord Henley: My Lords, my understanding is that the Pearson Committee did not recommend a general system of no-fault compensation for medical accidents in this country. The Royal Commission considered the matter very carefully but came down against it in 1978. I do not think that circumstances have changed since that time.
Lord Allen of Abbeydale: My Lords, I did not say that the commission made a recommendation to that effect; I said that it suggested further lines of inquiry. Is it not therefore disappointing that the Government have done so little in following them up?
Lord Henley: My Lords, I am sorry, but I do not accept what the noble Lord has just said. Further, I do not think that this is necessarily an appropriate moment for a general debate on the possible advantages or disadvantages of the recommendations made by the Pearson Committee.
Lord Ennals: My Lords, I do not agree. In my view, this is the best possible time for such a debate. Is it not appalling that people who quite clearly could only have contracted HIV and AIDS because of the blood they were given (which they were required to have) should have to argue their case before a court in all these circumstances? Surely it is at this time, when the public and the Government are aware that the case for no-fault liability would deal with this and many other cases, that the matter should seriously be considered.
Lord Henley: My Lords, I am sorry; I simply do not accept what the noble Lord said. I repeat: it is the most appalling tragedy that so many haemophiliacs have been affected. However, I do not feel that no-fault compensation would be the answer to the problem. The Government have responded to this appalling tragedy by means of payments through the two Macfarlane Trusts. As the noble Lord knows. flat-rate payments of £20,000 have been made to every

1033
single haemophiliac infected by HIV and further payments, according to need, will be made to the others.

Manufacturing Output
3.13 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon asked Her Majesty's Government:
What action they are taking to promote manufacturing, and particularly to increase manufacturing output.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, the Government continue to pursue policies intended to improve the climate for business activity, including manufacturing, and to reduce the burdens on business. In addition, the Department of Trade and Industry continues to operate a range of specific schemes to improve business performance under the enterprise initiative.
Lord Stoddart of Swindon: My Lords, can the noble Viscount confirm that manufacturing production in the three months to August fell by 1 per cent. and is likely to fall even further during the present quarter? Will he also agree that Britain is now suffering from a proliferation of economic evils including high inflation, high unemployment, recession at home and a severe and worrying balance of payments abroad? What are the Government going to do about these evils, instead of relying on the single weapon of high interest rates? Further, will they do something to improve manufacturing industry and indeed help exports?
Viscount Ullswater: My Lords, manufacturing productivity in the three months to August was 1 per cent. higher than a year earlier. The fall to which the noble Lord quite rightly drew attention reflects the necessary slowdown in the economy, but not a long-run trend. Manufacturing productivity growth in the 1980s was faster than that in all other major industrialised countries, whereas over the two previous decades the UK was at the bottom of the league.
The Viscount of Oxfuird: My Lords, can my noble friend tell the House what is the reduction in productivity of the other countries in Europe and also in the United States of America and in Japan?
Viscount Ullswater: My Lords, I do not have the figures for those areas. However, I can say that the output of manufacturing industry in the three months to August 1990 was one-half of 1 per cent. higher than a year earlier.
Lord Ezra: My Lords, is the noble Viscount aware that investment in manufacturing industry has shown a worrying turndown and that investment intentions suggest that the situation may be even worse in the future? Are the Government concerned about this and, in particular, are they looking at measures which could be taken to counteract this trend?
Viscount Ullswater: My Lords, manufacturing investment was at a record level in 1989 and a recent
1034
CSO investment intention survey indicates a further increase this year and next. After a decade of rising productivity and profitability, the industry is far more able to handle the inevitable slowdown and beyond that to face the decade with confidence.
Lord Hatch of Lusby: My Lords, can the noble Viscount tell the House what are the present figures of manufacturing output for this year in comparison to those when the Government took office in 1979? Can he also say how those figures compare with those of our major competitors; namely, Germany, France, Japan and the rest of the OECD countries?
Viscount Ullswater: My Lords, the indices which I have at my disposal show that the manufacturing output is some 20 per cent. higher than it was about five years ago. Therefore the output has been rising, as has productivity.
Lord Hatch of Lusby: My Lords, I am sorry to press the matter but I asked the Minister for a comparison between now and 11 years ago in 1979, not between now and five years ago.
Viscount Ullswater: My Lords, I thought I had already said that I did not have such figures at my disposal. I shall ascertain the information and write to the noble Lord accordingly.
Lord Williams of Elvel: My Lords, is it still government policy that the present balance of payments deficit will be in some manner rectified by redressing the visible trade deficit? If that is still the policy, will the noble Viscount please reiterate it firmly and clearly for your Lordships? If he does so, will be also explain how this can be achieved by falling output in manufacturing, falling output in other production industries of the economy and a reduction in manufacturing investment to which the noble Lord, Lord Ezra, referred?
Viscount Ullswater: My Lords, the underlying trends remain favourable. In the three months to August, non-oil export volume, excluding erratics, was 10 per cent. higher than a year earlier while imports grew by only one half of 1 per cent. I should like to draw your Lordships' attention to the fact that under Labour in the 1970s manufacturing output fell.
Baroness Phillips: My Lords, does the Minister agree that the Government should now start a campaign to make people buy British goods? I always make a point of asking whether an item has been made in this country. Such a campaign would encourage people to buy British rather than always buying imports.
Viscount Ullswater: My Lords, I very much agree with what the noble Baroness has said. Goods made in this country are of a very fine quality. In my view, everyone should consider purchasing them before they purchase any others.
Viscount Montgomery of Alamein: My Lords, does my noble friend not agree that the overall state of the nation so far as concerns economic development is not wholly dependent upon manufacturing industry but is also dependent on the considerable contribution from the service industries and from the invisible sector, to

1035
which reference has already been made, which play a major part in balancing our payments and indeed in creating considerable services?
Viscount Ullswater: My Lords, I agree with my noble friend. It is unfortunate that we should concentrate upon one aspect of industry.
Viscount Massereene and Ferrard: My Lords, does my noble friend agree that the public have done far better and have had a far better standard of living under this Conservative Government? Is my noble friend aware that I once had a factory? Tourism has to a great extent taken over from manufacturing industry in raising the standard of living.
Viscount Ullswater: My Lords, yes, I agree with my noble friend. The workforce in employment in the United Kingdom is increasing and is over 500,000 more than it was in June a year ago.
Lord Cledwyn of Penrhos: My Lords, is the Minister aware of the increasingly acute anxiety felt throughout the country about the increase in the number of bankruptcies of small and medium-sized manufacturing companies which are, after all, the seedcorn of industry in the future? What are the Government doing about that? Furthermore, what steps are the Government taking to ameliorate the problem and prevent the closure of Cammell Laird in Birkenhead which will result in the loss of 2,000 jobs in an area where unemployment is high?
Viscount Ullswater: My Lords, in a dynamic economy there will always be firms ceasing to trade and new firms starting up. The figures for 1990 show that VAT registrations continue to exceed VAT deregistrations. As for Cammell Laird, it is sad that a shipbuilding firm such as that has found itself in difficulties, but that reflects the nature of the industry.
Lord Barnett: My Lords, does the Minister still recommend people to buy British goods even where the imported equivalents are much cheaper because of the present exchange rate?
Viscount Ullswater: My Lords, that is a long way from the Question on the Order Paper.
Lord Gregson: My Lords, is the Minister aware that in his speech to the Conservative conference the Chancellor of the Exchequer stressed the importance of the manufacturing sector above all others? Is he aware that the Chancellor of the Exchequer also stressed that reducing our overseas negative trade balance was the most important way of steering this country's economy?
Viscount Ullswater: My Lords, yes, I have drawn attention to the increase in productivity of manufacturing industry, and to the fact that without an increase in productivity we shall never be able to compete.
Lord Stoddart of Swindon: My Lords, will the Minister tell the House why, if the economy is as rosy as he has made out from the Dispatch Box today, the CBI is so worried about the future economy of the country?
Viscount Ullswater: My Lords, no, I cannot answer for the CBI, but I can answer for the Government. The future prospects for inflation and jobs are good.
Lord Stoddart of Swindon: My Lords, is the Minister aware that the people of this country are more likely to listen to businessmen than the nonsense that he has been talking today?

Human Fertilisation and Embryology Bill [H.L.]
3.24 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS AND AMENDMENTS TO COMMONS AMENDMENTS
[References are to Bill 106 as first printed for the Commons.]

COMMONS AMENDMENT
20 After Clause 33, insert the following new clause:
Amendment of law relating to termination of pregnancy.

'.—(1) For paragraphs (a) and (b) of section 1(1) of the Abortion Act 1967 (grounds for medical termination of pregnancy) there is substituted—

"(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or

(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."

(2) In section 1(2) of that Act, after "(a)" there is inserted "or (b)".
(3) After section 1(3) of that Act there is inserted—

"(3A) The power under subsection (3) of this section to approve a place includes power, in relation to treatment consisting primarily in the use of such medicines as may be specified in the approval and carried out in such manner as may be so specified, to approve a class of places".

(4) For section 5(1) of that Act (effect on Infant Life (Preservation) Act 1929) there is substituted—

"(1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act."

(5) In section 5(2) of that Act, for the words from "the miscarriage" to the end there is substituted "a woman's miscarriage (or, in the case of a woman carrying more than one foetus, her miscarriage of any foetus) is unlawfully done unless authorised by section 1 of this Act and, in the case of a woman carrying more than one foetus, anything done with intent to procurer miscarriage of any foetus is authorised by that section if—

1037

(a) the ground for termination of the pregnancy specified in subsection (1)(d) of that section applies in relation to any foetus and the thing is done for the purpose of procuring the miscarriage of that foetus, or

(b) any of the other grounds for termination of the pregnancy specified in that section applies".'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 20. I shall speak also to Commons Amendment No. 26.
The new clause added to the Bill by the Commons amendment would amend the Abortion Act 1967 in a number of respects. I should like to remind the House that the Government's position on abortion remains neutral, as has been the case for all governments of whatever complexion since the subject was first discussed. My role therefore during today's consideration of the Commons amendments on this subject will be to Provide, as best I can, an impartial assessment of the practical effects of the new clause that has been added to the Bill and of the amendments to it that noble Lords have put down for consideration today. In addition we shall seek to provide advice and whatever information may be helpful to the House in reaching a workable decision.
On 24th April, in another place, it was agreed by a large majority, on a free vote, that the Abortion Act 1967 should be amended to introduce a 24-week time limit for the principal ground of risk to the physical or mental health of the pregnant woman and also that for similar risk to her existing children in line with the clearly expressed and recently confirmed view of the main medical and professional bodies involved. It was also decided that the 1967 Act should be amended in a number of other respects, principally by introducing as a ground grave permanent injury to the physical or mental health of the pregnant woman, and by removing any time limit for fetal handicap cases.
A decision was also taken that the 1967 Act should no longer be subject to the presumption of fetal viability in the Infant Life (Preservation) Act 1929. Those decisions were reaffirmed on 21st June when the Human Fertilisation and Embryology Bill completed its passage through the House of Commons and have been welcomed by the Royal College of Obstetricians and Gynaecologists.
I should like to remind the House that the provisions which seek to amend the law on abortion were added to the Bill in another place as a result of a free vote after lengthy and considered debate. As it now stands the bulk of the new clause closely resembles, in its effects, the provisions of the Abortion (Amendment) Bill which, your Lordships will recall, the noble Lord, Lord Houghton, in his usual skilful manner, took through all its stages in the House earlier this Session. I should also remind the House that the noble Lord's Bill in turn reflected the conclusions of the Select Committee of this House chaired by my noble and learned friend Lord Brightman which inquired into the Infant Life (Preservation) Act and which reported in 1988.
While the Government have neither supported nor resisted the amendments, the Government have a responsibility, through the Great Britain health
1038
departments, to advise the House on whether any particular set of amendments will result in a workable and enforceable set of provisions. That I shall try to do both in relation to this clause and the amendments to it which we are due to debate.
First, however, your Lordships may find it helpful if I say something about the way in which the Department of Health and the health departments in Scotland and Wales monitor compliance with the Abortion Act. That is done in three main ways. First, all private sector nursing homes and clinics approved by health Ministers under the Act are subject to periodic, unannounced inspections by the departments' medical, nursing and investigative officers. Any irregularities are followed up and the appropriate action taken. In the public sector, individual health authorities take responsibility for the way in which abortion services are provided in their own area, just as they do for other forms of medical care.
Secondly, all operating practitioners are required to notify the relevant chief medical officer, within seven days, of each abortion they perform. The notification forms contain many details including the grounds for abortion and certifying doctors, the estimated gestation and the method of operation. Those forms are scrutinised by staff authorised by the chief medical officer to ensure that they do not indicate any contravention of the abortion law.
Thirdly, the department investigates any specific complaints and allegations of abuse. That control machinery is not currently revealing, I am informed, any abuse of the Act, although there have been problems in the past which have been dealt with.
In the private sector, nursing homes must be specially approved administratively by the Secretary of State to carry out abortions after the 20th week of gestation. Specially approved homes are required to give patients considered to be over 20 weeks' gestation an ultrasound dating scan and to make the report on the scan available for inspection in the patient's medical notes. They are also required to maintain a separate register of these cases showing the results of the scan and estimation of gestation, together with details of the termination.
In the light of a 1985 report by a working party of the Royal College of Obstetricians and Gynaecologists, the then Department of Health and Social Security initially reached voluntary agreement with the proprietors of eight - there are now only seven - nursing homes approved to carry out abortions after 20 weeks that they would not perform abortions after 24 weeks. Subsequently, in February 1986 this voluntary agreement was made a condition of approval. In other words, no abortions over 24 weeks are allowed in private nursing homes.
The department also issued guidelines on the estimation of gestational age. On its inspection visits to nursing homes, the department's medical and nursing teams carefully monitor the records of cases over 20 weeks and I am informed that arrangements are working satisfactorily. From this I hope that it is clear that the departments involved take with

1039
considerable care and seriousness their responsibilities for monitoring the operation of the present abortion law.
Before I turn to the effects of Commons Amendments Nos. 20 and 26, I should like to put these amendments in context. They address the important and sensitive issue of abortion time limits which has been widely debated. Since 1969, four Private Peers' Bills dealing with that issue have been introduced in this House and a further eight Private Members' Bills have been introduced in another place. In particular, in recent years two Private Members' Bills were extensively debated in another place and both failed to make progress because the time available for debate ran out.
This new clause was introduced and a number of amendments to it were moved in another place in the interests of achieving an orderly debate on the subject. I intend to return to this at the end of my speech, but I should like at this stage to point out that the effect of this clause as regards time limits reflects very closely indeed the Bill introduced by the noble Lord, Lord Houghton, which passed through your Lordships' House and was sent to another place earlier this Session.
Your Lordships may find it helpful if I explain that in one of the three categories where the proposed upper time limit will not apply—terminations to save the pregnant woman's life—there is already under the present law no time limit and no specific limitations. The provisions in the new clause do not alter this position in any way as concerns the time limit under the abortion law.
An additional category already specified in the 1967 Act as a ground for emergency abortion on the opinion of one doctor is that of preventing grave permanent injury to the physical or mental health of the woman. The use of the words "grave" and "permanent" suggest that there is a stiff legal test to cover special situations where termination might be contemplated primarily in the interests of the pregnant woman. An example of this might be where she has severe hypertension and continuation of the pregnancy might result in permanent kidney, brain or possibly heart damage. In those circumstances the method of termination used would be selected in the best interests of the woman, but the intention would be to deliver a living baby where possible.
The final category is usually referred to as "serious fetal handicap" and permits termination where,
"there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped".
The application of this test is a matter of clinical judgment for decisions by the two doctors who sign the abortion certificate. The position is that under Section 1(3) of the Abortion Act 1967 legal abortions can only be carried out in National Health Service hospitals or in private nursing homes approved by the Secretary of State for that purpose. I explained to the House a little time ago that no abortion can be carried out in the private sector after the 24th week of
1040
pregnancy. National Health Service hospitals alone are permitted to carry out the very few abortions undertaken after 24 weeks. I can confirm that this position would not change under the proposals now before the House. Although this is not a statutory requirement, I cannot see any future government seeking to alter the arrangement.
During the final stages of the abortion debate in another place, my right honourable friend the Secretary of State for Health gave an assurance that in the case of all abortions after 24 weeks the operating practitioner will be required to provide on the notification form sent to the chief medical officer of the relevant Great Britain health department some statement of the nature of the clinical condition or handicap in respect of which the abortion has taken place. I understand that it is his intention that regulations will be brought forward as soon as practicable after the Bill is enacted, assuming that it goes forward in its present form.
My right honourable friend the Secretary of State for Health is considering also how the information so provided might be made available to the public, bearing in mind the confidentiality problems over release of detailed information about such a small number of cases. Your Lordships can take it that my right honourable friend is undertaking to do his best to provide, if this legislation were to be passed in its present form or in a similar form, that public statements of what is taking place, as far as possible consistent with the need for confidentiality to which I referred, will be made as appropriate.
It may be worth putting the late abortion question in a statistical context. There were only 24 abortions after 24 weeks in England, Wales and Scotland in 1989. Of that small number 23 were on the grounds of risk of serious fetal handicap and none was carried out after the 27th week. As a pregnancy progresses the bond between the woman and her unborn child strengthens. If late in the pregnancy a serious fetal handicap is detected the woman faces an agonising decision: should she proceed with the pregnancy or seek a termination? The natural fact is that she has been hoping for a healthy child. It must surely be the case that any decision to seek a termination in these circumstances will never be taken lightly. The woman who is carrying the child must be the person who ultimately decides, assuming that the doctors in their opinion consider the necessary conditions to have been fulfilled.
In addition to the proposed changes on time limits, the new clause would amend the 1967 Abortion Act in two respects. It would amend Section 1(3) of the 1967 Act to give the Secretary of State for Health the power to allow non-surgical abortions using abortifacients to be carried out in classes of authorised places as well as those individually authorised and to specify what materials may be used in places falling within that class and in what manner. This would enable the Secretary of State to authorise the use of specified drugs for this purpose, if they were licensed and available in this country in places other than a National Health Service hospital or a place approved

1041
under Section 1(3) of the Abortion Act. When the 1967 Act became law the methods of termination used were essentially surgical and the legislation was drawn up wit h that in mind. But advances in medical science mean that the alternative of non-surgical abortion using drugs is now a reality. One such drug, RU486, has been authorised for use in France where for some 30,000 women it has been the chosen method of abortion. There has been much speculation in the media and elsewhere about the possible use of the drug in the United Kingdom. The position here is that the criteria for regulation of medicines are set out in the Medicines Act 1968 and in EC directives. Further rigorous scrutiny of evidence from clinical trials is needed before a product licence could be considered to allow RU486 to be marketed in this country. The Committee on Safety of Medicines needs to be satisfied, in considering an application for a licence, that the drug is safe, efficacious and of good quality when used by doctors for the purposes set out in the product licence application.
The main British trials of RU486 have been based on the use of the drug up to nine weeks of pregnancy, and abortion up to nine weeks makes up about one-third of the total number of abortions in England and Wales at present. Whatever view we may take about abortion, I am sure we would all agree that any abortion that is to be performed should be carried out as early in the pregnancy as possible. Any new safe and effective method of early termination which would avoid the use of surgery and general anaesthetic therefore merits serious consideration.
Under the current Abortion Act particular medicines like RU486 could only be administered in an NHS hospital or an individually approved place. To terminate a pregnancy the drug RU486 is given orally Forty-eight hours later a prostaglandin pessary or injection is given. The medical advice I have is that there is no medical need for a woman to attend an NHS hospital, or a nursing home approved by the Secretary of State for surgical termination of pregnancy, simply to receive the RU486 pills; and it is safe for her to be at home for the following 48 hours. She should, however, be under supervision for a few hours after the prostaglandin has been given because pain is common at that time and in a small number of cases there may be troublesome bleeding. Abortion normally takes place within 10 days of the prostaglandin being administered. If such drugs were licensed and marketed in this country there would of course need to be strict controls over their distribution and use and that would be our intention.
The new clause also amends the 1967 Act to make it clear that selective reduction of a pregnancy may be performed if the requirements of the Abortion Act are fulfilled, but not otherwise. Selective reduction, which has been carried out in the United Kingdom since about 1982, is the destruction of one or more fetuses in a multiple pregnancy. Some selective reductions are done because one or more of the fetuses have been diagnosed as having a seriously handicapping condition. Another situation where it might be used is where the woman is carrying to term a higher order
1042
multiple pregnancy which may jeopardise the lives of all the fetuses, or put the pregnant woman at increased risk. The use of the procedure and the gestational age at which it is performed are matters for the clinical judgment of the doctor concerned having regard to all of the circumstances of the particular case and subject to the conditions of the abortion legislation.
I turn next and briefly to the practical effects of Amendment No. 26. As I explained at the beginning of my speech, this is a consequential amendment to the new clause. Subsection (1) of Clause 42 provides that the terms of the Human Fertilisation and Embryology Bill shall extend to Northern Ireland. As the Bill stands, this means that the new clause, which amends the Abortion Act 1967, will also extend to Northern Ireland. However, as that Act does not itself extend to Northern Ireland it is not possible for an amendment to it to extend to Northern Ireland. This amendment removes this inconsistency by providing that the new clause on abortion shall not extend to Northern Ireland.
I should perhaps remind your Lordships that the Bill of the noble Lord, Lord Houghton, on abortion time-limits completed its passage through the House earlier this year unamended. The main issues were the moral questions connected with abortion, the capacity of a fetus to be born alive, fetal abnormalities and late abortions. The Bill was debated in your Lordships' House for a total of six and a half hours, including two Divisions, one on Second Reading and the other during Committee on the amendment of the noble Earl, Lord Halsbury, which sought to give the Secretary of State for Health power to make an order to specify the time-limit for abortion in the 1967 Act. That amendment was not carried and the Bill itself was then approved by the House. In effect, Commons Amendment No. 20 before us today as regards time-limits for abortion accepts the contents of the Bill we approved and sent to another place on 7th March, and adds to it the specific provisions on non-surgical abortion and selective reduction which I have just described.
The subject of abortion is no less a matter of conscience for this House than it is in another place. It was clear to us all when we considered the Bill of the noble Lord, Lord Houghton, that abortion is a subject on which many people hold, with equal sincerity, very strong and widely differing views. Successive governments, while taking a neutral stance, have accepted responsibility for ensuring that the provisions of the Abortion Act are properly applied. Whatever the changes made to the Abortion Act 1967 as a result of this Bill, the Government will ensure that the amended law is subject to the same stringent controls as are applied under the current legislation.
Whatever view one takes on these highly sensitive and controversial issues being debated today there is, I believe, a broad consensus about the need for legislation on embryo research so that it can be properly brought under statutory control. Noble Lords need no reminder from me that a condition for a Bill to reach the statute book is that this House and another place agree on the content of the Bill on the

1043
basis of the procedure which has been followed. If there were to be any persistent disagreement between the two Houses on Amendment No. 20, and on any of your Lordships' amendments thereto, that process would be put in jeopardy. If that occurred and there were no Bill, there would be no legislative control at all over embryo research and related subjects and no change in the time-limits applicable under the 1967 Act.
Although I am sure noble Lords know this procedure perfectly well already, I should point out that I shall put the Question on Amendment No. 20 immediately after I have finished speaking and then I shall call immediately the first amendment to Amendment No. 20. Each of the amendments to Amendment No. 20 will be discussed by your Lordships in order. We shall come back eventually, whatever may happen to those amendments, to Amendment No. 20, which I have sought to reply to.
Moved, That the House do agree with the Commons in their Amendment No. 20.—(The Lord Chancellor.)

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 20
20A Subsection (1), at end insert:

("Provided that, if the grounds for terminating the pregnancy are those specified in paragraphs (a), (b) or (c) above and the child is capable of being born alive, the medical practitioner terminating the pregnancy takes all reasonable steps to secure that the child is born alive.").

3.45 p.m.
Baroness Cox: My Lords, I rise to move this amendment with considerable trepidation born of an awareness that there are those in your Lordships' House, for whom I hold very deep respect, who are hostile to any attempt to reopen the whole question of the profoundly complex and sensitive matters of abortion and termination of pregnancy. However, many of us feel compelled to do so, however unpopular we may become, because the situation has changed radically while the Bill was in another place. We believe that it would be wrong for the implications of those changes not to be considered by your Lordships' House today.
I rise in some trepidation also because I and my noble friends and colleagues who support these amendments to the Commons amendments are aware that feelings on these matters run high among various groups outside your Lordships' House. Indeed, the noble Lord, Lord Houghton of Sowerby, warned me that I,
"would be torn limb from limb by women's organisaions".
But such intimidation does not seem a good reason for refraining from discussing these matters, which are of ultimate significance, in a democratic way. I say to the noble Lord, Lord Houghton, that our concerns are directed to trying to prevent unborn children from being torn limb from limb. That has sometimes happened in some forms of late abortion where an infant who is old enough to feel pain and to respond to stimuli may be dismembered in utero.
1044
Before I commence my brief introduction to this first amendment I wish to thank my noble and learned friend on the Woolsack, and those who agree procedures for your Lordships' House, for arranging today's business so that these important discussions can take place at this time. I give thanks also for the advice we have received concerning the implications of our endeavours.
In that connection I must begin by emphasising one fundamental point. I and my colleagues have been accused with some virulence by the noble Lord, Lord Houghton, of attempting to wreck the entire Bill. That is not the case. Although some of us have previously expressed reservations about the ethics of embryo research, we strongly agree with and support the need for legislation to control the care of human embryos and to monitor and regulate embryo research. We therefore have no wish whatever to wreck the Bill.
In another place it was decided to insert into the Bill a whole new clause on the subject of abortion. That new clause is far-reaching in its implications. We believe that it is the right, and indeed the duty, of this House to face up to its responsibility to make its views known on the new clause.
We have been advised that if your Lordships were to support any amendments to the Commons amendments that would not wreck the Bill. We are aware, of course, that the Government are very pressed for time to complete the remaining stages of the Bill. However, we have been advised that it should not be impossible to take those stages into account if your Lordships were to amend the Bill. If it were to be impossible that would make a farce of today's proceedings for there would be an implicit assumption that your Lordships' House was being asked to act as a rubber stamp on a matter which it has not discussed and which many people throughout the nation believe is one of the most fundamental, moral and legal issues of our time.
I now turn to the substance of the first amendment to Commons Amendment No. 20. I shall set the scene with a broad brush. Other noble Lords who support the amendment will add other points of substance and detail. The essential purpose of the amendment is to return to the position on which widespread consensus had been reached—that there should be a limit of 24 weeks for induced abortions except in cases where the mother's life is at risk or where the child is so handicapped that it could not live.
We welcome the reduction to 24 weeks. However, we believe that our amendment is necessary because in the Bill as now amended in another place the grounds for late abortion have been widened to such an extent that termination of pregnancy for the purpose of killing the baby, which is abortion, includes such a range of justifications as in some cases to allow for late abortion on questionable social grounds right up to birth.
Those questionable grounds are spelt out in paragraphs (a) to (c) of subsection (1) of Amendment No. 20. We cannot emphasise strongly enough that we do not oppose the principle of termination of

1045
pregnancy if the mother's life, health or well-being are at risk. Indeed, our proposed amendment before your Lordships would still allow termination of pregnancy at any stage after 24 weeks, right up to birth, on any of the grounds listed in paragraphs (a) to (c) of the Commons amendment. Therefore, arguments which have frequently been put as a justification for late abortions, such as the fact that the mother is suffering from high blood pressure or toxaemia, do not stand as arguments against our amendment. All they do is confute the distinction between abortion and termination of pregnancy. Because there has been some confusion over that distinction it may help if I were to clarify the definitions.
Abortion refers to the termination of a pregnancy with a deliberate destruction of the fetus. Termination of pregnancy refers to measures taken to bring about the end of a pregnancy, but in ways which usually involve every effort being made to preserve the life of the baby. Therefore, arguments such as those used by my right honourable friend the Secretary of State that late abortion, for example, after 24 weeks, which may be necessary to save the mother from, say, permanent damage as a result of toxaemia or high blood pressure, do not apply as arguments against our amendment. In those circumstances her pregnancy could be terminated in the interests of her health, while simultaneously every effort was made to save the life of the baby. In other words, we respect the fact that there may well be circumstances such as those identified in the Commons amendment where a pregnancy should be terminated but we do not believe that they also justify the deliberate destruction of a child old enough to sustain independent life.
The Commons amendment specifically allows and makes provision for abortion—killing of a baby in its mother's womb—from the age of 24 weeks, when it is usually capable of sustaining life. It is now often possible to sustain life even at 22 weeks. It also provides that abortion can take place right up until the time when it is a mature baby, at full term.
By contrast our position is this. We believe that after 24 weeks, when the baby is capable of sustaining independent life, it deserves protection at law as an infant human being. The separation of the Bill, however, from the Infant Life (Preservation) Act in the Commons amendment removes that protection and makes the child legally vulnerable. In future, unless the Commons amendment is amended, a medical practitioner will no longer be liable to prosecution for destruction of a child when a child mature enough to survive is killed during the process of terminating a pregnancy after the 24th week. Indeed, as we understand it, that child will have no legal protection for its life right up to full term at 40 weeks. The wording of the new clause is such that it could be interpreted by certain practitioners so liberally as to constitute, in effect, the killing of a viable, healthy baby on dubious social grounds. I hasten to say that I do not wish to impugn the integrity or the compassion of the overwhelming majority of professional practitioners.
1046
It is important to note that current termination of pregnancy in its later stages usually involves methods such as those spelt out by my noble and learned friend on the Woolsack. For example, there is the use of prostaglandin, a drug which induces premature birth. In such cases a normal child will usually be born alive. Moreover, the quality of care in special care baby units is so sophisticated that very small and very premature babies can now survive and develop into healthy children in ways that would have seemed miraculous only a decade or so ago.
However, on a more sinister note, in the private sector one favoured method of abortion has been and remains dilatation and evacuation of the uterus in which the baby's head may be crushed and the baby may be literally dismembered and removed piecemeal. There is thus a danger that the law as it would stand under the present Commons amendment could be a licence for such practitioners to kill normal children of mothers who decide or may need to have pregnancy terminated after 24 weeks. Sometimes that has happened in ways which I believe that all your Lordships would agree are horrific.
If, as has been stated by my noble and learned friend the Lord Chancellor, regulations will require all such terminations to be carried out in National Health Service hospitals, which would therefore be more open to scrutiny and accountability, that would obviously be warmly welcomed. However, that provides no adequate, permanent legal safeguard. Such provisions would not, as I understand it, have the force of law; they are not on the statutory list of amendments for our consideration and could be changed overnight by a future government of any political complexion.
The noble Lord, Lord Houghton of Sowerby, circulated a paper to many of your Lordships in which he made a number of points which I know other noble Lords will address. I merely take up one of them. The noble Lord argues that,
"abortion has existed since the beginning of human life".
But so have murder, torture and other forms of cruelty. That is no good reason for legalising such practices.
I conclude by emphasising that we are addressing the most fundamental, ethical and legal problem. The numbers involved, as has been said, may not be very large although they are likely to increase if the Commons amendment stands as Britain will become unique in offering legal abortion up till birth. Hence one may expect to attract people from other countries for this procedure. Even if the numbers are small, the risk of the deliberate destruction of even one living child in its mother's womb, a child capable of sustaining independent life, is one too many.
The more we learn about the ability of an older fetus to feel sensations and to respond to stimuli, the more we must feel deeply disturbed by the prospect of a law which will allow such children to be subject both to being killed, maybe on very vague social grounds, and possibly to being killed in ways which could be described as barbaric. If any Members of your Lordships' House have not had the opportunity to

1047
familiarise themselves with the extent to which a baby in utero is a feeling, responsive being, I should like to draw their attention to an excellent article in the Sunday Times which I shall place in the Library and which shows the extent to which a human fetus is a feeling, responding being.
It is children such as those which are the substance of our concern. We know that many people in the country, including many professional colleagues with direct experience of these matters, are deeply worried about the proposed new legislation. We feel honour bound to put these issues before your Lordships' House for your consideration. I beg to move.
Moved, That Amendment No. 20A, as an amendment to Commons Amendment No. 20, be agreed to.—(Baroness Cox.)
4 p.m.
The Archbishop of York: My Lords, I realise how difficult it is at this late stage to question the wisdom of this amendment which has come from another place. I am conscious too, as we all are, that this House has spent a great deal of time on the issue. I have carefully studied both the Select Committee's report and the debates which followed it. I should like to apologise that, for a variety of reasons, I was unable to attend any of those debates.
I am aware of the small number of cases affected by the crucial choice which lies before us in today's debate. I am also aware of the strong desire among many eminent obstetricians and gynaecologists to maintain some kind of loophole for late abortions after 24 weeks, given the fact that the women who present in such circumstances are often in great distress. I accept that there are already stringent regulations about such late abortions—the noble and learned Lord the Lord Chancellor gave us a description of them—and that there is every incentive to keep such abortions to an absolute minimum. We all accept that the integrity of the medical profession is not in question.
Members of your Lordships' House may recall that at an earlier stage in our debates on the Bill I spoke up vigorously in favour of allowing research on embryos under carefully specified conditions. They may wonder why I am now siding with those whom I then opposed. It is because I believe that if we pass Commons Amendment No. 20 without further amendment we shall have crossed a moral dividing line which we ought not to cross.
There are three converging lines of argument which lead me to that conclusion. The first concerns the nature of what we are dealing with. In earlier debates I tried to make the point that the development of human life is a process from almost imperceptible beginnings, when it makes little sense in my view to ascribe full human value to an embryo which has just been conceived, right up to the stage when we begin to acknowledge the independent existence of a new person.
Because it is a process, the debate about the morality of abortion changes its character at different
1048
stages in that process and our present practice and laws implicitly acknowledge that. To think in those terms, however, forces on us the question: At what stage should we begin to treat the developing fetus as no longer a completely dependent being whose life is wholly bound up with the life of its mother and inseparable from hers but begin to treat it as an independent person in its own right?
It seems to me that the capability of being born alive marks that transition, despite the inevitable ambiguities which surround it both in theory and in practice. Legally we have to define sharply, in terms say of a 24-week criterion, what medically is blurred. But that is no new problem. We are always having to do it as we try to pass legislation. What we are talking about, therefore, as we go beyond what is now recognised as, broadly speaking, the age of viability is a moral watershed. We need to be aware of that.
I know that some noble Lords in previous debates have said that they do not like to decide such complex, personal and practical matters on the basis of a moral principle. But we all decide such things on the basis of principle, even if the principle that we adopt is a thoroughly pragmatic one or even if the principle is to avoid at any cost distress to potential mothers. The question that faces us is not "Are we going to act on principle or not?" but "What principle are we going to act on?" I submit that the principle of respect and care for viable human life is one of the pillars of Christian civilisation.
The second strand in my argument concerns the need to have that principle enshrined in legislation. I have already paid tribute to the integrity of the medical profession, the vast proportion of which deserve it. But if we thought that the strong desire to avoid late abortions was itself enough to provide the protection that we seek, we should not be legislating to set a limit on the normal operation of the law at 24 weeks. The doctors would reduce the limit by themselves without any need for us to set it down in words in law if we were simply relying on their integrity.
No doubt the fixing of the 24-week limit in law may deter a small minority of cowboys, if they exist at all, but far more important than that, it seems to me that the fixing of that limit in law says something about our valuation of human life. It is a public signal about where the limits of toleration of abortion lie. That is why a confused signal such as that coming from Commons Amendment No. 20 is so damaging. It seems to say that even after the age of viability a human person may be destroyed for reasons which are less than adequate, if any such reasons exist.
Indeed, subsection (1) (c), which so far as I can recall echoes the words of the 1967 Abortion Act, would seem on the face of it to open the door as wide as that section in the Act has done because the risk of proceeding to full term in any pregnancy is in almost any circumstances higher than the risk of terminating it.
Perhaps for a moment I may look ahead from this present amendment in front of us. Paragraph (d)

1049
seems to say that seriously handicapped people may be destroyed simply because they are seriously handicapped. I know that it does not feel like that to those who are struggling with terrible personal dilemmas whether as expectant mothers or as doctors. It does not feel like that at the sharp end of medical practice. But that is what the paragraphs seem to say. That is why I welcome the first two proposed amendments, Amendments Nos. 20A and 20B.
The third strand in my argument concerns the distinctions that need to be made if the principle of protecting viable human life is to be maintained. I believe that there is a major distinction between abortion to protect the life of the mother and abortion on the grounds of potentially severe handicap. Abortion to protect the life of the mother can be justified on the grounds that, morally speaking, the potentially viable fetus in such circumstances is playing the role of an aggressor—a totally innocent aggressor of course—but when it is a question of one life or the other or neither, the destruction of an aggressor is not morally wrong.
In the case of handicap, the equation is different. The handicapped fetus is not generally an aggressor. It is a misfortune. It seems to me that deliberate destruction of a viable, albeit handicapped, human being in order to avoid distress in the mother devalues life in a way that we ought not to accept. In a word, it is wrong.
The same dilemma has for a long time faced doctors when severely handicapped infants are born alive. Some 15 years ago in the northern region I had the privilege of chairing a working party on that very topic. It seems to me that basically the same moral principles should apply in both cases: we do nothing to destroy life, knowing that life may be short anyway, but neither are we to go to extraordinary lengths to preserve it. Ordinary love, care, nurture and letting death come when it may is a much more human and humane approach to an agonising problem than the attempt to remove it by abortion or termination, with all the guilt and trauma that those may imply. I believe too that that is more human than unnecessarily heroic efforts to repair damage after birth with little hope of real success.
I hope that I have said enough to indicate why I am unhappy with the Commons amendment as it now stands and why I shall support Amendments Nos. 20A and 20B.
4.15 p.m.
Lord Walton of Detchant: My Lords, perhaps I may first apologise to the House for the fact that I may not be able to remain throughout the debate since in just over an hour and a half from now I am due to deliver the Harveian Oration at the Royal College of Physicians in London.
I have given Commons Amendment No. 20 and the Lords amendments now tabled and before the House the most careful and earnest consideration. I fully appreciate the total sincerity of the views of those who wish to oppose or amend that Commons amendment. Most doctors and nurses, not least those who are
1050
required to perform the procedure, dislike abortion. But the great majority nevertheless regard the procedure as being infinitely preferable to the prospect of allowing serious permanent damage to occur to the physical or mental health of the mother or to the likelihood of a child being born with severe physical or mental handicap, with malformation or with a progressive, disabling and ultimately fatal disease.
I am of course wholly in favour of subsection (1) (a) of the proposed clause to be inserted after Clause 33 if the Commons amendment were passed, which is to impose the normal statutory 24 week limit. As the noble and learned Lord the Lord Chancellor has said, last year in this country only 24 abortions were performed after the 24th week, 23 of them on the basis of severe fetal malformation and none later than the 27th week.
I have to say that I felt some concern at first sight about paragraph (b), while being strongly in favour of paragraphs (c) and (d). However, after taking advice from colleagues working in obstetrics—I recently received a compelling letter signed by some of the most distinguished obstetricians and gynaecologists in the country whose views I greatly respect—and after consulting the president of the Royal College of Obstetricians and Gynaecologists, I now wish fully to support paragraph (b) in the clause from the Commons amendment. I am advised that there are rare circumstances when even after 24 weeks a pregnant woman may develop, for example, severe hypertension or kidney disease sufficient to cause grave permanent injury to her physical health but without immediately threatening her life. That is injury which can be prevented only by terminating the pregnancy. Similarly in very exceptional circumstances, a severe mental illness, a psychosis, can also endanger a pregnant woman's long-term mental health. That too may be prevented, or at least alleviated, by termination.
I have listened with great care to the arguments adduced so eloquently by the noble Baroness, Lady Cox. I am confident that the doctors, the obstetricians and gynaecologists of this country who may under the most exceptional circumstances wish to carry out terminations after the 24th week if the amendment were passed, would make every conceivable effort with regard to those cases referred to in subsection (b) and (c) to make sure that the baby was capable of living, and living a normal and independent existence.
I am sure that it is an issue which is best left to the good sense of the obstetricians and gynaecologists. On the advice of their royal college I find it difficult— although of course I defer to legal opinion on the matter—to understand just how the wording of the Lords amendment that we are now debating could be implemented in a legal sense. I am sure that others much better qualified than I am will comment upon that later in the debate.
I turn now to paragraph (d). Some of the most distressing developmental abnormalities of a fetus cannot invariably be diagnosed by 24 weeks. Most can, but a few may not be. They may include occasionally anencephaly and microcephaly. That is a

1051
fetus with a beating heart and a functioning circulation but either without a face and brain or with a tiny brain. It may also be true of severe degrees of spina bifida. I freely admit that many people born with developmental abnormalities such as spina bifida live very happy and fruitful lives despite their disability. But if the parents of such infants are asked whether they would prefer to have had a physically intact or a severely disabled child, very few would choose the latter despite the loving care and devotion which many of us recognise are lavished upon most such disabled children when born alive.
We surely must remember that the Abortion (Amendment) Bill proposed by the noble Lord, Lord Houghton of Sowerby, embodying the very provisions which are the substance of Commons Amendment No. 20 was passed in this House some months ago by a substantial majority. It was based upon the unanimous report from a Select Committee of this House chaired by the noble and learned Lord, Lord Brightman. Surely in all conscience we cannot contemplate allowing a situation to arise in which a doctor, terminating a pregnancy after 24 weeks in the most exceptional circumstances envisaged in the clause, might be at risk of being accused of manslaughter. Therefore, I support Commons Amendment No. 20 in its entirety. It was passed in another place by a large majority after most careful consideration. I urge the House to support it.
I wish to comment upon the enabling amendments tabled by the Government relating to the possibility of bringing GIFT within the terms of the Bill. I trust that they will be approved and that the regulations allowing that to be licensed in the future will also be approved. I support Commons Amendment No. 20.
Lord Robertson of Oakridge: My Lords, the noble Lord, Lord Walton, spoke as though Amendment No. 20A tabled by the noble Baroness, Lady Cox, would ban some late abortions. Can he tell me where that appears in the amendment, because I do not believe that it does?
Lord Walton of Detchant: My Lords, I understand that paragraph (d) of the amendment might make it impossible for a severely malformed infant to be aborted.
Baroness Cox: My Lords, with the leave of the House I should point out that at the moment we are not discussing that point, which is the substance of the second amendment.
Lord Ennals: My Lords, this is a personal matter. I do not speak from this Bench on behalf of my colleagues but only for myself. However, I do not speak only for myself when I thank the noble and learned Lord the Lord Chancellor for the clarity with which he opened the debate. It was a magisterial statement and he did not deviate from the impartiality to which he has held throughout the debates on the Bill. I hope that no one will object if I pay my tribute to the noble and learned Lord.
I wish to emphasise a point that was made by the noble and learned Lord and the noble Lord, Lord
1052
Walton, who I am glad to see here. The House is now discussing issues that were considered earlier. I believe that it has dealt well with the principles of the Bill and with the abortion issues that we are now discussing. I wish to remind noble Lords that we go back to 22nd July 1987 when the Infant Life (Preservation) Bill received a Second Reading in this House and was referred to a Select Committee. It was appointed on 9th November 1987, with the noble and learned Lord, Lord Brightman, as chairman. As was said by the noble and learned Lord the Lord Chancellor, he did a good job. It was a thorough report and brought together Members of this House who hold a variety of views. The committee produced a unanimous report.
I also congratulate my noble friend Lord Houghton, who seized the report when the Human Fertilisation and Embryology Bill was first before us. He took into his Bill —which was passed by this House without opposition and sent to another place —precisely the recommendations of the report. At that time the House not only accepted the recommendations of the Brightman Report but also the Bill that we dispatched to another place.
I do not suggest that it is not proper, right, sensible and moral that at any stage we should doubt the wisdom of what we did but I believe that we should know what we are now doing. Of course it was right that we should have given our advice to another place. It was interesting to note that the other place took our advice after a great deal of concentrated debate and discussion and a series of votes. It has sent back to us a Bill that contains the recommendations that we sent to it. Perhaps with full justification on an individual basis this House is now asked to look again at recommendations which it made to another place and which were accepted.
I remember speaking in the first debate on the Bill. I advised the House that we should keep separate the issues of human embryology and abortion. I argued that they were separate issues, as of course they are. It was because of the wisdom of this House and the opportunity given to it by the noble Lord, Lord Houghton, with his Bill that we were able to debate purely human embryology. The most reverend Primate the Archbishop of York made a distinguished contribution. We then debated quite separately the abortion Bill. It would have been nice had the most reverend Primate been able to join us; whenever he speaks his views are welcome. However, let it be understood that we sought to keep the two issues separate and we sent two separate recommendations to another place.
I believe that those who now wish to change the consensus that was established between this House and another place have miscalculated not only the attitudes and views of your Lordships but those of Members of another place. They have also miscalculated the attitudes, views and moral sensibilities of the general public. I shall deal with the main issues, but I first wish to express my horror at some of the publicity material sent to me about the

1053
supposed implications of the Bill. The fact that they do not come from individuals but from organisations suggests to me that it is a calculated contribution.
I wish to quote from a letter sent to me on 7th October from Mrs. Mearns of 28 Wilburn Street, Walton, Liverpool:
"Dear Lord Ennals, I am absolutely horrified that abortions are still going to be allowed up to 24 weeks and that handicapped unborn children could be given no legal protection. What we are talking about is murder, first degree murder, premeditated, cold, calculated murder. People used to be he hung for murder for taking the lives of innocent human beings".
She goes on to say that in a civilised country it is unbelievable that we can even dream of removing further legal protection from unborn children simply because they are handicapped. She says it is unbelievable that being handicapped will become a crime punishable by the death sentence. I could continue, but clearly the letter comes from a woman who is wrought up, and who, I am afraid, has been misled. However, her letter has been circulated by those who favour a reversal of the consensus that was achieved.
I hope that we shall not make a change. I was delighted that another place accepted your Lordships' recommendations. I thought that paragraphs (a), (b), (c) and (d) of Amendment No. 20 contained the provisions that should be made. I was also glad to hear the noble Lord, Lord Walton, refer to the obstetricians and gynaecologists. It is well that we should look at their situation. They are the people who have to take action on the basis of decisions taken by Parliament. Before me I have a letter from Professor Bearn and David Pantin signed by over 20 of the most distinguished people whose names we know and respect, including Sir Malcolm Macnaughton, Dame Josephine Barnes. I could go through the list. Those people are of the highest integrity.
I wish to quote the first paragraph from that letter because we must understand the dilemma faced by those who are called upon to carry out abortions. It is very easy for some of us to speak but it is the people who must perform the operations of whom we must think. The letter says:
"The gestation limit should be 24 weeks for abortions that are necessary because there is a risk to the physical or mental health of a woman. There are occasional circumstances in which abortion is necessary after the 24 weeks. There were only 23 cases"—
as the noble Lord, Lord Walton, said—
"notified in England and Wales in 1989. Most such abortions are performed because the fetus has been shown to have an abnormality that would prevent sustained life after birth and it would result in gross handicap. A small number of such abortions are induced because the woman is gravely ill and her health would be so permanently harmed or she might die if the pregnancy continued. In such cases the fetus is usually so immature or so affected by the illness in the woman that it would not survive. If the fetus is mature enough to have a reasonable chance of survival with intensive care, all possible steps are taken to optimise the survival of both mother and fetus. Delivery then is usually by Caesarian section".
There are two personalities at stake in this great argument. One is the life and the future of the fetus,
1054
and obviously at a certain stage we are entitled to think that that fetus is the beginnings of human life. But there is the other person, and that is the mother. All the publicity which I have seen ignores the position of the mother who might die —that is the first instance —or whose health would be greatly impaired—that is the second instance—or who might give birth to a gravely handicapped child who might live for a week, a month, or who knows how long. How do we make the choice? Surely the decision must be in favour of the mother, the living human being who, with the help of the husband, has created the child she will soon bear. The mother must take priority in these circumstances.
I believe that the amendments approved by the House of Commons provide a welcome clarification of the law. At present, obstetricians are uncertain of the legality of abortions after the 24th week even where there is grave fetal abnormality because of the possibility that the courts might consider the fetus to be a child capable of being born alive. I believe that the exclusion of the Infant Life (Preservation) Act from the operation of the Abortion Act will enable women and doctors to make appropriate decisions in these very difficult circumstances without fear that the law is being broken.
We should recognise that in Scotland the situation has been exactly as it will be if this Bill becomes the law of the whole land. There is no suggestion that in Scotland people have been going around murdering babies and killing fetuses right up to the last moment. They have behaved with the same sense of responsibility with which doctors and nurses have behaved in this country. The number of terminations after 24 weeks in Scotland was very small. In 1989 it was as low as five, and in 1988 it was only seven.
Looking at what I know and what we all know about the quality of the doctors and nurses who have the responsibilities, and looking at the experience, including that of Scotland that we have had, I believe that it would be folly for us now to decide not just to overturn what the House of Commons is saying to us after its considerations but also to say that we got it wrong when we made our recommendations. It does not matter if that makes us look absurd, as it surely would do. We must be absolutely certain that we have good reason for making ourselves look absurd. I do not believe that we have. I plead with your Lordships to approve the Commons amendments.
4.30 p.m.
Lord McColl of Dulwich: My Lords, in supporting the amendment to the Commons amendment—my name is attached to it—I should like to point out that I have supported the clauses in this Bill which permit experiments on embryos. Secondly, having seen the tragedies of back street abortions in the 1950s and 1960s, I recognise that abortion up to 24 weeks is the lesser of two evils.
However, I am greatly alarmed that the Bill as it stands allows abortion up to the moment of birth. I should like to point out that that alarm is shared by many of my colleagues in the medical profession who

1055
simply cannot understand how on earth the provision ever found its way into the Bill in the first place. There is absolutely no need for it, and indeed, as our opponents have argued, no reasonable doctor would ever dream of making use of it. That is perfectly true.
However, we are not worried about reasonable doctors. We are worried that unreasonable mavericks will be able to kill a child at any time up to birth at 40 weeks. Is it not a strange law which permits the killing of a child just before its birth while it is a criminal offence to kill it the day after it is born?
Professor John Finnis, Professor of law and legal philosophy at the University of Oxford, in discussing the four grounds for abortion in the amendments passed in another place, said that if abortion results in the delivery of a living viable fetus it will be lawful to destroy it during birth for any reason at all, including relatively minor handicaps such as hare lip or cleft palate. Is that the kind of signal which your Lordships should be giving to the countless thousands of disabled people?
I understand that if this Bill becomes law this will be the only country where abortion up to full term will be legal. Inevitably that will attract countless thousands of women from far and wide, reminiscent of the early days of the Abortion Act when London, as your Lordships will recall, became the abortion capital of Europe. Your Lordships will no doubt remember that we were assured in those days that that legislation did not permit abortion on demand and that such provision was unthinkable in view of the regulations provided. In the event, abortion on demand became widespread, and your Lordships will remember the disgraceful treatment meted out to those obstetricians who refused to carry out abortions on demand but insisted on acting within the law.
I may be mistaken but a little while ago I understood my noble and learned friend on the Woolsack to say that the same stringent rules will be enforced in the case of this provision as in the case of the present abortion law. That does not fill me with confidence. Contrary to what our opponents have put about, it is not the purpose of these amendments to wreck the Bill; nor is this the time and place to attempt to unravel the reasons for the confusion which occurred when Members in another place were faced with a very complex set of amendments. Suffice it to say that many people were completely unaware of the disastrous effects that their amendments would have. I submit that now is the time to correct those mistakes by accepting our amendments.
The Lord Bishop of London: My Lords, I should like briefly to comment upon the argument recently set forth by the noble Lord, Lord Ennals. He suggested that we were debating issues which we had thoroughly debated before; which had been decided and passed to another place. I suggest that we are looking at a different issue. We are looking at an issue which has been brought to our attention and presented to us by the amendments made in another place and which we are considering today.
1056
In the debates—I attended most of them and read Hansard —the phrases "abortion" and "termination of pregnancy" were used fairly indiscriminately. I cannot recall any real attention being given to the difference between the two or what should happen to the fetus when the pregnancy was terminated. That is the issue we are discussing today.
As has been said by supporters of the amendment, the general thrust of the Bill, whether we liked it in the past or not, is not in question. It is a question of one issue which we have every right to consider. It has been brought to our attention by the effects of the amendments in another place. That is why I believe that no apology is needed for raising the issue again at this stage.
The issue is this. If, under strict conditions, with all the careful scrutiny which the noble and learned Lord the Lord Chancellor described, a late abortion is deemed to be right, what is to be the attitude of we, who are legislating, and the attitude of the country to the child then born? Is the assumption to be in favour of the preservation of that life or the destruction of that life?
As I see it, that is the point of these amendments. It is no more and no less than that. I fully support all that was said by the most reverend Primate the Archbishop of York. His arguments were compelling. But I ask your Lordships to accept that the issue is not one we have discussed before. It has been brought to our attention by the amendments we are debating this day. Further, the question is a simple one. Where is the presumption to lie? Is it to lie in the preservation of life, given all the complications and conditions we have heard about? Or is it to lie in the destruction of life when, to a greater or lesser extent, it is inconvenient to ourselves?
Lord Ennals: My Lords, is the right reverend Prelate suggesting that those in this House who support the amendment from another place, and those in another place who carried those amendments after long hours of debate and consideration, were saying that they were in favour of the destruction of the embryo? Surely he will accept that the argument is that of course we want to keep both the mother and the embryo. But if that terrible choice must be made, then it must be the mother's life and health that is vital.
The Lord Bishop of London: My Lords, I have not raised the question of the mother's health at all. I do not want to be anecdotal in any way. I could speak at some length of godchildren and friends of mine who are gravely handicapped, yet who are doing marvellous work in our society. I do not want to be anecdotal. I am simply asking where the presumption lies; on which side of the issue?
There will be occasions, as the Bill will provide if passed in its present form, when the mother's health will take first place. There will be other cases when it will not, and rightly so. We are not making that judgment today. In taking all the factors into account —the rights and needs of the unborn child and of the mother—we are saying that the presumption must lie

1057
in the preservation and not the destruction of life. If we all say that then we should vote for the amendment.
4.45 p.m.
Viscount Tonypandy: My Lords, in listening to the noble Baroness, Lady Cox, I was reminded yet again that there is a simple issue before the House. Another place inserted a clause which completely changed what was hitherto before this House when the Bill left us. Another place decided to insert a clause which, I am advised, would have the effect of ending the link with the Infant Life (Preservation) Act 1929, the severing of which by the Commons means that abortion is available until birth. If that is true, then it cannot be denied that an abortion, when a living creature is waiting to emerge, is no less than murder. For the life of me I cannot understand how anyone can suggest that the House is considering the same issue as it considered previously.
The most reverend Primate the Archbishop of York referred to a moral watershed. I honestly ask the House to think carefully of what we are doing to the standards of life in this country. I ask the House to give further thought to whether we would be justified, merely on grounds that it would be inconvenient to amend the Commons amendment, to say that we will close our eyes to the other major issue. It is not often that such a heavy responsibility falls upon Members of your Lordships' House. It has been my privilege to serve in this House for seven years, and I have learned to love it. I have never been in a debate where we could more literally say that it was a matter of life or death, and we decide.
I was very moved by the noble Lord, Lord Walton, who is a doctor, and also the noble Lord, Lord McColl, who balanced the debate. But I want to say to the House that we should not listen to the beguiling appeal, "Leave it to the doctors". Of course the great majority are honourable. We are not legislating on the conduct of the honourable. We are guarding against the conduct of people who do not share those high standards, and to whom money is a great attraction. We all know that these are days when different standards prevail, but, even so, what is right and wrong will always be clear and on this issue it is clear that we should tell the Commons, "No, we do not agree with taking away the protection of the unborn child right up to the day of birth". It staggers me to think that it could be done.
Two distinguished Members of another place held a press conference after the Division there. They were the right honourable Michael Alison and Sir Michael McNair-Wilson who are greatly respected and honoured Members of another place and, no one could say, men of straw. They are men of considerable judgment. Both said at the press conference that they had been misled during the debate in another place. They voted for the amendment as it is without realising what is now commonly accepted; namely, that abortion can take place right up until the birth is due.
Viscount Craigavon: My Lords, although the confusion in the House of Commons occurred at the Committee stage, the House had another chance at Report stage to vote with due consideration and the same amendment was carried.
Viscount Tonypandy: My Lords, both the right honourable Member and the honourable Member made clear at the press conference that they were misled. I want no one in this House to be misled. I want no one at all to be able to say, "Well, I did not realise that we were giving to some doctors a right to behave as though they were God Almighty with the gift of life or death". That is not the right of any calling or profession. I hope and pray that the House will realise that, although, as the noble Baroness made clear, we want an emphasis on saving the life of the mother, where a perfectly viable baby can be born, we shall not give authority to anyone to put it to death.
The Duke of Norfolk: My Lords, in speaking on the possible effects on the law which could result from the abortion amendments passed in another place, I feel that I can do no better than quote a very old and, I am sure, greatly honoured friend of the noble Lord, Lord Houghton. I refer to Professor Glanville Williams, QC, FBA, one of the finest academic lawyers we have in this country and one of the leading advocates in favour of liberal abortion and euthanasia, to which I do not necessarily agree in any way.
In the second edition of his Textbook of Criminal Law, published in 1983, Professor Williams explains that the Infant Life (Preservation) Act was introduced in 1929 because lawyers realised that our laws on homicide protected the child after birth and the Offences Against the Person Act of 1861 protected the child before birth from abortion, but that there was no legislation in England and Wales which protected the child during the actual process of birth.
In his book, Professor Williams tells us:
"accordingly the Infant Life (Preservation) Act 1929 created the additional offence of child destruction".
He stresses that the only situation for which that Act was required at the time was where a baby was killed after being partially extruded, but that later it was given a wider ambit overlapping the crime of abortion.
Put simply, the Infant Life (Preservation) Act 1929 defined as the crime of "child destruction" the killing in the womb of a child capable of being born alive. It gave as prima facie proof of life the fact that the mother had been pregnant for 28 weeks or more. However, I must stress that, at the meeting with the Lord Chancellor during this week, the noble and learned Lord took great pains to explain to me, to the noble Baroness, Lady Cox, and to the noble Lord, Lord Robertson of Oakridge, that the real test of the Act is not 28 weeks, but the phrase
"capable of being born alive".
The figure of 28 weeks is merely an illustration of the time at which babies in 1929 were presumed to be capable of surviving for some length of time. It was, as the Lord Chancellor explained to us, a "rebuttable presumption" in that, if evidence could be produced

1059
showing that a baby of younger gestational age than 28 weeks was capable of living, the Act would protect that child.
However, in referring to the working of the Abortion Act and the Infant Life (Preservation) Act, Professor Glanville Williams stated:
"When a live fetus is removed in the course of an intended abortion, the fetus upon being removed becomes a legal person and is fully protected by law … The abortion may have been performed because the woman was overburdened and would be affected in health by having to bring up another child; yet, having produced a live child, the obstetrician is required to try to keep it alive, because it is live extraction from the woman that endows the fetus with legal personality."
In other words, in applying the Abortion Act 1967, it is important to kill the child before it is extracted in order to avoid problems under the Infant Life (Preservation) Act. Those are important words. For the fact is that, if a baby of fewer than 28 weeks is destroyed in the womb during an abortion, actually proving that that particular child is capable of being born alive can be extremely difficult.
It was as a result of that dilemma that in 1986 Bishop Hugh Montefiore, the then Bishop of Birmingham, decided to introduce his Infant Life (Preservation) Bill which sought to lower the rebuttable presumption from 28 weeks to 24 weeks. Noble Lords will recall that reference has been made to that fact. The Bill received its Second Reading in the House, but unfortunately it ran out of parliamentary time and coincided with the retirement on age grounds of Bishop Montefiore as Bishop of Birmingham.
The whole episode is best described in a short letter that he wrote to me quite spontaneously after reading that a group of us intended to try to amend the Commons amendments when they were brought before this House. His letter is dated 17th August 1990 and reads as follows:
"I am delighted to hear that you are going to try to amend the Bill which would make abortion legal in certain cases until birth. I am writing to remind you that my Infant Life (Preservation) Bill, which passed its Second Reading in the Lords, was supported by the Government and under that Bill abortion would only have been possible until birth when the life of the mother is threatened (as is now the case). The Government therefore has reneged on its earlier decision and it should be made to explain why it has done this. You may remember that I only agreed to send the Bill to a Select Committee under great pressure from Lord Whitelaw and that the Select Committee was 'packed—.
It was totally packed. There was no representative of the Pro-Life group in this House except for a Bishop who kindly, in order to help the committee, resigned in the end. There was not one lay representative from our group. Who chose the Committee? I leave that up to your Lordships to decide.
The letter continued:
"Indeed, the Bishop of St. Albans resigned from it and it was only in this way that a unanimous decision was possible. I wish you good success. You have a cast iron case. It cannot be right to kill a baby in the womb when it could sustain life outside it.
Yours sincerely, Hugh Montefiore".
1060
I should like to repeat Bishop Montefiore's last words:
"It cannot be right to kill a baby in the womb when it could sustain life outside it".
Here I should like to interject with a personal experience. I have a thriving, rumbustious granddaughter who was born at the 27th week of pregnancy. She is called "Shrimpy" by her sisters. She was born very tiny. When I visited her in the hospital premature baby unit where she was being cared for, I saw a number of tiny babies in incubators who had been born in some cases considerably earlier than she had. This brings home to me most forcefully that what we are dealing with here is human life—babies—and surely we must not deprive them of all protection from the law.
I must ask your Lordships to consider what are the upper limits for abortion in Europe and, indeed, throughout the world. If one examines the legislation country by country, one finds that the vast majority allow abortion up to 12 to 14 weeks. No country allows abortion—killing as opposed to inducing a birth—of the viable child on the grounds of handicap or on social grounds. Virtually every country allows up to birth termination of pregnancy—that is, induced by birth;—not abortion—on those grounds where the mother's life or health are in genuine danger; but in every country the doctor is required by law to do everything possible to save the life of the child. That is the position in Britain today as the law now stands. However, if the Commons amendments become law, that will no longer be the case.
In this country we will then allow doctors to carry out after 24 weeks pregnancy social abortions under the guise of saving the mother from "grave permanent damage" up until the time of birth. We will also allow abortion for "serious" handicap to term. Indeed, if noble Lords recall the statement which I quoted from Professor Glanville's book, they will realise that it will be possible to destroy the child up to the severing of the link between the mother and the child, when the umbilical cord is cut.
As other noble Lords have already stated, we are confident that the majority of doctors in this country would not adopt any such course of action. However, one has only to read the report of the Royal College of Obstetricians and Gynaecologists on Premature Birth and Abortion to learn that, in recommending a change of the rebuttable presumption from 28 weeks to 24 weeks, it pointed out that more than 60 per cent. of late abortions—abortions after 18 weeks—were carried out by 11 doctors who were operating for money. That is an indictment not of gynaecologists as a whole but of the manner in which our law is being manipulated, twisted and exploited by a tiny minority killing for profit.
I accept the Government's promise that they will allow abortion after 24 weeks to take place only under NHS rules. But we could have another government, next year or the year after, who could reverse such a decision. We as legislators have a duty to consider the effects of legislation on society. Just as passing the Abortion Act in 1967 has reduced respect for the

1061
unborn child with the result that we see 11 doctors carrying out 60 per cent. of late abortions for money, so gynaecologists have told me of their fear that allowing abortion up to birth will lower ethical standards of medicine in late pregnancy, so that while we now revere the child before birth, it will become an object which can be destroyed if it is not perfect or if there are social grounds which it is easier to overcome by eliminating the baby.
There is a free vote in this House. The Whips are not applied on this clause. I unhesitatingly support this amendment and the other two amendments. I draw noble Lords' attention to the fact that we are a revising Chamber. That is our main function. It is our duty to send this back to the other place for them to consider it and for them to give it another look.
Lord Robertson of Oakridge: My Lords, everything I was going to say in my speech has already been said. Noble Lords will therefore be glad that I can put my speech away and not weary them by going over the same points. I should like to say one thing. If the Commons amendment goes through unamended there will be more —perhaps not very many more—late abortions. As a result one will see in hospital, in the same ward as a woman being nursed very carefully and kept extremely quiet in the hope of prolonging her pregnancy long enough for the child to be born capable of living, a woman coming in for a late abortion of a healthy fetus. In the same wing of the hospital there will be children born prematurely in intensive care and healthy fetuses—or what were healthy fetuses—on their way to the incinerator. That is absolute madness. I believe that the amendment proposed by the noble Baroness, Lady Cox, would ameliorate the position. I therefore hope that it will be supported.
Baroness Lockwood: My Lords, I want to support the Commons amendments and to speak against the amendment in the name of the noble Baroness, Lady Cox, and others. I do so for two reasons. First, this House has considered the matter on a number of occasions and has come to very clear decisions on it. Secondly, I happen to believe that the Commons amendments provide the right circumstances for dealing with what can be very distressing situations, situations which do not occur very frequently. We have already heard from the noble and learned Lord the Lord Chancellor and others that in the last year for which we have figures 23 late abortions took place. There is no evidence to conclude that by passing these amendments we shall increase that number.
The most reverend Primate the Archbishop of York stated quite rightly that we reach a watershed in the development of the human fetus. This Bill recognises that watershed. It is at 24 weeks. Once we go beyond the 24 weeks we are dealing with a different situation and different circumstances. Again, I underline that we are dealing with circumstances that occur in only a few cases. The right reverend Prelate the Bishop of London asked: where do we put the presumption? I say that in principle we must put it on the continuation of life. Again, it is not always possible for us to apply that principle.
1062
The most reverend Primate the Archbishop of York outlined one circumstance where it would not be possible to apply it in favour of the child or the fetus; that is where the life of the mother is at stake. There are other circumstances. The most reverend Primate spoke about the viability of life. However, to the mother the viability of life is not necessarily just a question of the child being born and living for a few hours or days. To the mother, the viability of life is the future health and welfare of the child. That is something which we have to take into account.
The noble Lord, Lord Walton, outlined some of the very difficult circumstances that can arise where the child is likely to suffer from abnormalities. He was asked how those circumstances would be affected by the noble Baroness's amendment. The amendment would apply in those circumstances. If the mental and physical health of the woman was being so affected by the fact that she might be carrying, or was carrying, a child that was going to be born with very real abnormalities, that could affect her mental and physical well-being. There are other circumstances which can arise. There may be late diagnosis of problems or the health service may not have been as efficient as it might have been in drawing the attention of the mother to the circumstances.
I should like noble Lords to consider this: no woman would carry a fetus to 24 weeks and then have it aborted just because it was inconvenient. No woman would carry a fetus to 24 weeks and then have it aborted unless there were circumstances which were very compelling. We have to take into account the views of the women who are to be put into this very difficult situation. We have talked about the moral judgment that the doctors have to make. We must remember that the women will also be making a very real moral judgment and that not only their interests but the interests of their families will be at stake when they make that judgment.
5.15 p.m.
Lord Brightman: My Lords, the Commons amendment reflects precisely the recommendations of the Select Committee. It may be of some assistance to your Lordships in making up your minds in this debate if I explain briefly how the committee reached its unanimous conclusion. There were two issues before it. The first was whether the maximum gestational age for an abortion should be reduced below 28 weeks. If so, the question was whether any allowance ought to be made for emergency situations.
The committee's approach is set out in paragraph 53 of its report, which I can summarise as follows. It is the woman's health and her needs which must be in the forefront of any discussion of abortion. She has to undergo the physical trauma of childbirth. She is primarily responsible for the child in its early days and often for much longer. She may not have the support of the child's father. So the mother's needs must be placed on one side of the scales. On the other is the duty of society to protect the unborn child. But neither the natural desire of the mother to protect her own health nor the duty of society to protect the unborn child is unqualified.

1063
The question is where the balance rightly lies between mother and unborn child if the mother wishes to terminate her pregnancy. The committee examined this problem in depth over a period of 11 months. It received representations from more than 60 persons and organisations. It considered over 300 pages of written and oral evidence. The committee concluded that the existing maximum gestational age for abortion of 28 weeks was too high. A child removed from the womb after 26 or 27 weeks has a good chance of survival and of being capable of living in a meaningful sense.
Late presentations for abortion are unavoidable. They are invariably associated with youth, low intelligence and social deprivation. Consultants repeatedly told us that patients seeking an abortion when they were 20 weeks pregnant or more were the most distressed they saw. The overwhelming burden of medical opinion was that late abortions should be allowed in order that discretion can be exercised in necessitous cases. After considering all the evidence the committee unanimously concluded that an abortion on statutory grounds should be available in most cases down to but not after the 24th week of pregnancy.
The committee then had to consider what exceptions there ought to be to that timetable. There was one obvious exception; namely, to avoid the risk of the mother's death. In such a case the pregnancy may be terminated at any time. That had always been the law. The committee considered it logical to extend that exception to cover a termination which is necessary to save the woman from permanent ill health. The example has, I believe, already been given of a case of high blood pressure leading possibly to a stroke which may or may not prove fatal.
There is no clear dividing line between an illness which may lead to death and one which may lead to permanent harm. So the committee recommended that there should be no maximum limit for abortion in the case of threatened death and if the termination is essential to the mother's health; that is, to prevent grave permanent injury to her health or to prevent her becoming a permanent invalid.
The only other exception to the 24-week rule recommended by the committee and adopted by the Commons amendment arises where there is a substantial risk that the child if born would suffer from such abnormalities as to be seriously handicapped—not a hare lip or a cleft palate which can be mended by an operation.
The justification for permitting a termination without a time limit in this case is that serious abnormalities cannot necessarily be discovered by week 24; indeed, they may not be discovered until a later date. If an unborn child were diagnosed as grossly abnormal and unable to lead a meaningful life, there was in the opinion of the committee no logic or humanity in requiring the mother, against her will, to carry the unborn child for full term merely because the diagnosis was made too late to enable the termination to be carried out within a fixed timetable. If it is found
1064
late in the day that the pregnant woman is carrying a child which has no brain (an anencephalic) and is therefore only going to live for a matter of minutes or hours, or has some other devastating handicap, it is lacking in humanity to require the mother, against her will, to suffer the agony of carrying the child to full term.
I should add that if one brings down the time limit for abortions on the ground of serious handicap one is liable to increase the number of abortions. But if you have no time limit in the case of suspected abnormalities doctors can carry out their tests to fruition, which may be after 24 weeks. They may discover, to the delight of the mother, that the child is normal. If you cut down the time limit for abortions, you encourage a mother who is bearing a merely suspected deformed child to have an abortion at an early stage which, had the gates been open for a longer time, would never have been necessary.
In the committee's recommendations and in the Commons amendment there are only three exceptions to the 24-week rule: to save the mother's life; to saver from becoming a permanent invalid; and to saver from carrying a grossly abnormal child to full term. Therefore, to say, as has unfortunately been said in propaganda literature, that these exceptions open the door to abortion until birth is a gross travesty of the truth.
Lord Robertson of Oakridge: My Lords, I should like to put a question to the noble and learned Lord. If the intention was to save the life of the mother, why did the committee not recommend that in its recommendations, rather than adopting the woolly and ambiguous formula in Commons Amendment No. 20 under subsection (1) (c)?
Lord Brightman: My Lords, speaking from memory, I believe that subsection (1) (c) exactly repeats the existing law.
I shall now touch briefly upon the disengagement of the ILPA—the Infant Life (Preservation) Act—from the Abortion Act. It is sometimes said that that would open the door to abortions until birth because there would be no sanction to prevent it happening. I cannot emphasise too strongly that the elimination of the Infant Life (Preservation) Act from the Abortion Act does not mean that abortions can be carried out to birth with impunity. Plainly, any doctor who terminates a pregnancy outside the statutory limit, or otherwise in contravention of the 1967 Act, will remain fully liable to prosecution under the Offences Against the Person Act 1861 or the Infant Life (Preservation) Act, or both.
Finally, I turn to the wording of Amendment No. 20A. The amendment requires the doctor to take all reasonable steps to ensure that the child is born alive if the pregnancy is terminated under paragraphs (a), (b) or (c). In my respectful submission the amendment is wholly inappropriate. A paragraph (a) termination is one which is undertaken to avoid risk of injury to the health of the mother or her existing children. However, under the Commons amendment such a termination can only take place down to the 24th week

1065
of the pregnancy; that is, 23 weeks plus, which is before a live and viable birth can reasonably be expected. Therefore, why direct the doctor to ensure a live birth when performing a paragraph (a) termination if a live birth is impossible or highly improbable? Surely the duty of the doctor is to carry out a paragraph (a) abortion in the manner, and according to the procedures, which is safest for the mother.
Amendment No. 20A also applies to a paragraph (b) or (c) abortion. Paragraph (b) is a termination which is necessary to prevent the mother from becoming a permanent invalid; a paragraph (c) termination is carried out in order to prevent her death. Of course, in such cases the doctor will strive to preserve the life of the child if he can do so consistently with preserving the life of the mother. The pregnancy is one which is wanted and not one which is not wanted. It would be unthinkable for a doctor who was carrying out a termination in order to preserve the mother's life to gratuitously terminate the life of the child. A doctor does not need an Act of Parliament to teach him that elementary duty.
I have a little more to say on the disengagement of the Infant Life (Preservation) Act from the Abortion Act. I believe that it would be more appropriate if I were to continue with what I have to say when we come to deal with Amendment No. 20C.
5.30 p.m.
Lord McColl of Dulwich: My Lords, before the noble and learned Lord sits down, does he acknowledge that our amendment would not prevent one termination? With this amendment we are not concerned with a handicap.
Lord Brightman: My Lords, I agree. My argument was that Amendment No. 20A is unnecessary because under paragraph (a) it deals only with a termination at a time when a viable child is not to be expected and under paragraphs (b) and (c) when the life of the child will be preserved by the doctor anyway.
Lord Houghton of Sowerby: My Lords, I should say at the outset that the House is being shamefully treated. There are three parties to blame. The first is the Government, who have denied proper facilities for this controversial and important subject to be debated and for changes in the law to be brought about except by the dubious course, with frustrations galore, of the Private Member's Bill procedure. No abortion law or amendment to abortion law has been passed except by Private Member's legislation. What a precarious process that is! I blame the Bishops Bench for not turning up when the matter was under discussion at an earlier stage. I blame the pro-life lobby for deserting the debate on my Bill when it was receiving its Second and Third Readings.
That Bill was introduced on 22nd November 1989. It had its Second Reading on 12th December 1989. On that occasion, over 100 Members of your Lordships' House turned up. A delaying Motion was moved by the noble Duke, the Duke of Norfolk. It was lost by 61 votes to 48. Of the 48 Members of your Lordships' House who voted to delay the Bill and wreck its
1066
progress, 57 per cent. were claimed by the Catholic Directory as adherents to the Catholic Church. I say that without bias and without recrimination. I am just as impartial as the BBC! It is noteworthy to see where the inspiration on this issue constantly comes from.
On Second Reading, the noble Duke, the Duke of Norfolk, said:
"We need amendments to the Abortion Act 1967. But this Bill goes in the wrong direction and so is not worth treating as a basis that could itself be amended. The Bill is a calamity". —[Official Report, 14/12/89; col. 1466.]
That was the message, and so the noble Duke promptly deserted the proceedings on the Bill. We had a Committee stage. Amendments were moved. The noble Earl, Lord Halsbury, and I joined in moving an amendment. We were defeated. When the Committee stage finished, the Bill remained intact. There was no Report stage. We went to Third Reading on 7th March this year, in this Session. The Bill passed without a Division.
Naturally, the other place was looking around for some way of solving the interminable controversy without giving time for Private Member's Bills. How could it be done? The other place laid open the path for this matter to be spatchcocked into the Human Fertilisation and Embryology Bill. Here it comes as a flaming carbuncle on the body politic of the Human Fertilisation and Embryology Bill. Here we are up against the time-limit of the Session.
When the other place was looking around for some central consensus, something to put up to allow it speedily to deal with the matter and to get out of it some common denominator of Commons opinion, where did it look? Where could it look? There was no other evidence available. No one else had done the job to the extent that it had been done by the Select Committee of your Lordships' House. When it heard that the Select Committee's recommendations had passed through the House without a Division the other place thought, "Ah, here is something stable, something valuable to be put to the Commons to be shot at". So the other place copied my Bill into the core Motion for the Commons.
I know all that because the Leader of the House, Sir Geoffrey Howe, did me the honour of consulting me on the matter; not that I had any claim on his time, but I happened to be one of his constituents. When an MP visits a constituent who does not have a vote, it is an honour indeed. So I agreed that that was the best way of going about the matter. The decks were cleared for one big day of shots at the target. The Motion was moved by the Leader of the House, and amendments were moved by the Secretary of State for Health, not in a partisan way—neither for nor against—but to facilitate the procedural process. There were more than 10 Divisions in Committee that day, 24th April. That was only a few days after the Bill passed through this House.
I remind your Lordships again: Amendment No. 20 has already gone through all its stages in your Lordships' House the normal way. Those who stayed away have only themselves to blame. If they were confused, it is only because they did not turn up. Is the

1067
House of Lords now going to say, "Well, a Bill of which not much notice is taken cannot matter very much"?
The noble Duke did not bother with the Bill because he did not believe that it would get anywhere; but look where it is now. Yet he brushed it aside: "It is not amendable. Why bother with it? It is a calamity. I'm off"; and he went. The other place seized on that, and so what was an unamendable Bill is an almost unamendable Commons amendment; and here it is. Now what are we going to do? There were 10 Divisions on the gestational age limits. The other place voted pendulum-wise. It voted first on 18 weeks. The great aim of the pro-life lobby was to get the gestational limit on abortion down to 18 weeks. It said, "We only want time down there to get this through. Everyone is in the way". When the other place had a chance to look at that proposal, it brushed 18 weeks clean out of the picture. It then went to 20 weeks. It brushed that off; then 22 weeks, but it was not quite so certain about that; then 26 weeks, and it was quite certain about that.
There were those Divisions, which left, unassailed by common assent, 24 weeks. That is why that time-limit is not being assailed in the amendments now. The pro-life lobby dares not touch it. If the amendment went back to the other place it would be thrown back without further debate. We were then left with the other parts of the Bill.
We should now have primary legislation, a Second Reading and a Committee stage. We should have on a more satisfactory basis all that we should have had earlier this year. But noble Lords, by their inattention or scornful dismissal of the attempt to put more sense into the abortion argument, stayed away. The Commons was left bereft. It did not know how to get sense out of it down there, even when it had the time to do so.
On the gestational limits for the prevention of serious permanent injury to the mother, two options were given: a limit of 28 weeks or no limit—emphatically, no limit. The next point was to save the life of the mother. There was no argument; that went through. The other point was on fetal abnormality, the clause that the noble and learned Lord, Lord Brightman, has just read out. The option was: 28 weeks limit or no limit—emphatically, no limit. That was in the Commons. We have to face that. The no limit proviso in the three cases that the noble and learned Lord, Lord Brightman, has explained so fully were insisted upon in the House of Commons when it had the option of doing something different on a free vote every time. There were 10 Divisions that day to get it right.
Now we come to the Infant Life (Preservation) Act. The same clause as was in my Bill is in Amendment No. 20. It was in the Bill that was passed on 7th March this year. It was added to the core Bill in the House of Commons that no prosecution under the Infant Life (Preservation) Act should apply to any acts done within the scope of the Abortion Act. The vote was overwhelming. Three hundred members of the House
1068
of Commons voted to get the ILPA out by a majority of 159. These amendments propose getting it back again. Supporters of the amendment want the weasel formula "capable of being born alive" back in the Bill after it was banished under the Infant Life (Preservation) Act. What do they think they will get from it?
When the pro-life people finally realised what had happened on 21st June—disaster in Parliament, tendentious stuff in what Parliament had done—what did the national president of the LIFE organisation have to say? Presumably he is a superior officer to the noble Duke, the Duke of Norfolk, if he is still chairman of the All-Party Pro-Life Group. The national chairman stated:
"We must honestly admit that we have suffered a numbing political defeat. We are bitterly disappointed. We had all worked so hard. We don't know what else we could have done".
However, here comes the clue to the situation. Referring to the advice they received on the policy of this organisation, the statement continues:
"Others insisted that we should not do any statute-tinkering. We should instead get the existing law enforced. In particular, some lawyers argued that the Infant Life (Preservation) Act…which made it a crime knowingly to kill in the womb a child capable of being born alive, was a powerful weapon lying unused".
"Go to it", the lawyers said. "Every abortion after 12 weeks contravened the law, so get that Act enforced". That is what they said.
What did that organisation do to try to achieve that? It said, "We tried it". It set its nurses' spy network to work. There is an organisation called Nurses for Life which was to watch the doctors, see what they were doing and report any suspicious actions. It acted on a spy network of other sources of information and set in motion cases against half a dozen individual doctors who were named in their hospitals and the evidence was given to us. The cases were all thrown out. No doctor has yet been convicted under the Infant Life (Preservation) Act—none. When it comes to the point, whatever the doctor does in good faith and in his belief that he is discharging his duty to his patient, applying his clinical judgment to the situation, no jury will convict him.
Then said Mr. Scarisbrick, "This is a broken reed". So the 1929 Act was a broken reed. It always has been. We have proved that there is nothing to enforce and much effort and time have been wasted. Money was not mentioned. This organisation spent £46,500 on a campaign that lasted six months. It is now appealing for money. The SPUC organisation, the Society for the Protection of Unborn Children, must have spent well over £500,000 on all the items it has sent round: plastic fetuses, videos from America called The Silent Scream, blown-up photographs which the Sunday Times newspaper says are very expensive indeed. These come mostly from one source and we know what that source is. I shall not mention his name because he is not here to reply, but I am sure that there is no secret about it. It was munificence for extravagant propaganda.

1069
What is the evil of these amendments? The evil of the amendments put forward by the noble Baroness, Lady Cox—who, incidentally, was not present at any of the discussions on live health —is that they expose the doctors to a renewal of the harassment and the detective network because of the additional obligation in the statute on "capable of being born alive". The more we define the duty of the doctors, the more we expose them to harassment and fear of the criminal law. That is the wicked part of these amendments. The doctors should be trusted.
Goodness me, are 27 cases really all that occupy our attention in paragraphs (c) and (d)? Each case has its own special circumstances. Can we not trust the doctors to decide in such grievous examples? They are all in National Health Service hospitals. There is no private sector carrying on illicit business on the side. All such cases are in National Health Service hospitals. Can we not even trust them? What a pass we are coming to!
I ask your Lordships: where do we go now? I can see no satisfaction to be gained anywhere from simply voting for or against sending the Bill back to the House of Commons. What will the House of Commons do about it? The Government will need a guillotine to get it through. The resentment there at the way in which the House of Lords has let them down would be very strong indeed. We are being manoeuvred into a false position. We ought to come to the conclusion, if needs must, that the only clear duty of this House is to endorse what the House of Commons—which we relied upon to produce the answer —has given to us for consideration. Nothing else will bring any satisfaction or peace anywhere.
I believe that the whole Bill could be put in jeopardy if there is a misjudgment of the mood of the House of Commons on what I think is a dreadful and unnecessary parliamentary situation. Let us settle it tonight, finish this phase in the long saga of a decade or two on abortion. Let those of us who work in this field for God's sake get a night's sleep and see what happens. The medical profession will be responsible. The social organisations also will be responsible. Will these people who live on professionalism to intimidate emotionally and in every other way lay off? If they do not, there is no hope at all. They must lay off and let the doctors get on with the job. They must let the abortion legislation settle down in a reasonable atmosphere. I beg noble Lords not to go down this path; I beg them to accept what the House of Commons has done. There is nothing better on offer: nothing better will come from the House of Commons. If we want a snub, we are asking for one. It is better for noble Lords to say, "We have done our best. The Commons has done its best. The Commons' view should prevail". That is the parliamentary situation. I hope that the noble and learned Lord the Lord Chancellor will have something better to offer. The Government have been lamentable. They have landed us in this shambles all the way along the line. As I sit down, I hope that this is the last speech I ever make on this subject in your Lordships' House.
Lord Elton: My Lords, after the weasels, carbuncles and unnamed zealots mentioned in the fascinating speech of the noble Lord, Lord Houghton of Sowerby, I hope your Lordships will permit me, in less than three minutes, to raise one point. The speech which weighed with me more than any other as a criticism of the amendments to the Commons amendment, which I support, was that of the noble and learned Lord, Lord Brightman. He told us that Amendment No. 20A was superfluous as applied to subsection (1) (a) of the Commons amendment. He also said that the Lords amendment was unnecessary in relation to paragraphs (b) and (c) of the subsection. I shall leave the question of superfluity on one side and consider necessity. The judgment of the noble and learned Lord appeared to rest on the assumption first, that the pregnancy in each case referred to under paragraphs (b) and (c) was wanted by the mother and, secondly, that a doctor would presumably, therefore, strive to preserve the life of the fetus.
I am not sufficiently learned in the law to know whether it would be binding on a doctor to assume that the pregnancy was wanted in any case, but I appreciate that the danger of injury to the mother's mental health is one of the conditions of paragraph (b) under which an abortion may be brought about. I believe that on every occasion that the noble and learned Lord referred to that matter he mentioned abortion and not termination by the preservation of life of the fetus. Presumably that process is possible, and that is what the Lords amendment seeks to achieve.
If it is the case that some of these pregnancies may be unwanted and if not all doctors, sadly, are always bound by the Hippocratic oath, and if our statutes are meant to prevent improper acts by those who might be expected to act properly, I believe that some protection in law is required. As a postscript I should add that, on reflection, the noble and learned Lord said he believed that the wording of paragraph (c) of the Commons amendment reproduced the existing law. I can only say that that is not necessarily a recommendation for leaving it unamended.
As a layman in every sense of the word it is clear to me that some protection is needed which is not provided by the Bill as it would be drafted were the Commons amendment to be accepted in the form in which it has been brought to us. It may well be that the amendments are imperfect, but if your Lordships are not content with them and resist the amendments on the grounds that they are imperfect, we shall be landed with the Bill as it is now drafted. The only way to get any alternative amendment is to send the Bill back to the Commons for it to consider how to meet the objections raised in this House in another form. For that reason I shall support the amendments to the Commons amendment.
The Earl of Erroll: My Lords, I have a handicapped child so I believe it may be useful if I refer to this matter. The first thing I want to make clear is that we are not talking about healthy children. The entire question of termination after 24 weeks concerns unhealthy, abnormal children. My wife and I had, as

1071
our first child, a perfectly normal son. Our second child, a daughter, is a Mongol with Down's syndrome. We care for her and look after her and she is brought up in the family. She is doing extremely well. When my wife became pregnant for a third time, we faced a big problem as regards what we were going to do. My wife was now considered to be in a high risk group. I must add that we had no idea that we were going to have a Down's syndrome child. That came out of the blue. All the debates so far have concerned the rights of the mother and the unborn child. We seem to forget that we are still supposed to have family units in this country. The Church is still supposed to believe in that. Therefore there are husbands and other children involved in this matter.
When we were faced with a third pregnancy, we had to consider what would happen if that child turned out to be handicapped. The difficulty is that the problem hits one rather late on. Some time may elapse before one's wife announces she is pregnant. Then one has to make an appointment to see the doctor and the whole palaver carries on. Then one has to decide whether to have an amniocentesis test at 16 weeks. It is not possible to have it before then. Further the test can only be carried out when the hospital can arrange for it to be carried out. So one has to book into the hospital. Having the test increases the risk of a miscarriage. If one is going to have the child anyway, regardless of whether or not it is handicapped, there is no point in having amniocentesis because one increases the chance of miscarrying a perfectly healthy, normal child.
The first decision to take is whether to terminate the pregnancy if it is discovered that the fetus is handicapped. That is a very difficult decision to take. If one decides to have the child anyway, there is no point in having the amniocentesis test. That reinforces the point I am making about the time limits involved here. It causes a great deal of pressure for both the people involved.
In our case both my wife and I worked and had other pressures apart from the pregnancy. We had the pressure of the other child and my mother-in-law. It is difficult to be able to sit down quietly together in the evening and discuss such personal matters. First of all the man has to find out what his wife's attitude is to abortion. She may be so anti-abortion that she would not even consider that step whereas the man may be pro-abortion. The problem with having these built-in time limits is that it places psychological pressure on a marriage. It is a very dangerous time for the couple: marriages can be broken up if one word is said out of place. A row can begin that may never finish.
In our case we decided that the risk to our elder son's mental health if, to put it impolitely, he had two nutty siblings, was high. I am afraid that one has to admit that that is what the situation boils down to. Schools and school children can be very nasty in these situations. If there is only one abnormal child among a family of three or four children, no one will worry. When fingers are pointed at school, the child can weather it. The abnormal child is just one among
1072
many. However, if a normal child has two nutty brothers or sisters and he is the only normal offspring, one can imagine what the reaction of other children will be. They would pass remarks such as, "You are the one with the funny sister" or "You are the one with the funny brother". We were concerned about how such a situation might affect my son Harry as he grew up; so we decided to have the amniocentesis test. I believe that the test was carried out at 16½ weeks or 17 weeks. Fortunately, it was successful on the first occasion. Another problem can be posed if the test is unsuccessful. In that case the process has to be carried out a second time, but the staff will not know if it has been successful for a further two weeks. Again, therefore, we are pushing up against the time limit.
In theory one carries out the test at 16 weeks. But one does not receive the results until the 20th week. The staff have to contact the parents, inform them of the results and counsel them if there is a problem. People are up against the time limit the whole time. If we had been told that our child was abnormal, we might have reconsidered our decision, particularly as our handicapped daughter is so tremendous. When these time limits are set, intense pressures are placed upon families. We are not talking about healthy children here. Some 23 abortions were carried out last year after the time limit of 24 weeks. None of those abortions involved healthy children. We are not talking about children who will be brought up in loving wonderful families and who will live a healthy, bouncy life. Perhaps in every 10 years one such child may turn out to be an exceptional character; that is, if he survives, because he may not even necessarily be viable at 24 weeks. But how many lives and how many families might be wrecked by the others as a result of the trauma and mental pressure? In setting a time limit one puts pressure on normal families. That is very dangerous. It nearly happened to us. I disagree with anything that would produce that sort of pressure. For abnormal situations there should be no time limit: the family is more important.
6 p.m.
Viscount Caldecote: My Lords, I, too, am very grateful to my noble and learned friend the Lord Chancellor for his clear exposition of the arrangements for regulation and control of medical abortion by the DHSS and the other aspects of Amendment No. 20. I support everything said by my noble friends Lady Cox and Lord McColl, and I listened with great admiration to the moving speech of the noble Earl, Lord Erroll.
I should like to make it clear that I fully supported the Bill in the form in which it left your Lordships' House. I voted for embryo research under strict regulation. However, since then the Bill has been drastically amended in another place to include major reform of the abortion law. I am most concerned by some of the provisions in the new clause inserted by Amendment No. 20. However, I have no intention, nor I believe have any of your Lordships—with the exception of the noble Lord, Lord Houghton—of

1073
raising any of the issues concerning the limit of 24 weeks or pregnancies terminated due to the risk of danger to the life of the mother.
I realise that at this late stage the Government are concerned that disagreement between the two Houses could cause problems and might conceivably jeopardise the passing of the Bill into law during this Session. In my view that last would be a tragedy, for the Bill contains important provisions for the regulation of embryo research. However, I submit that the passing of good law, sound in logic, application and ethics, must take precedence over any consideration of the convenience of legislators.
I strongly believe that the new clause inserted in another place is not sound, either in logic or in ethics. In addition, as my noble friend Lady Cox said, there has been considerable confusion about the difference between abortion —killing a fetus—and termination of pregnancy and producing a live child. I believe that that is one good reason why we should be debating the matter again in this House, despite the points that the noble Lord, Lord Houghton, put to us about his Bill. I believe that that difference has not been sufficiently appreciated and it is right that we should take it fully into account. That is what Amendments Nos. 20A and 20B do.
I fully realise that the conflicts of loyalties which arise in such cases are desperately difficult. I have some small personal experience of them. They are particularly intense and difficult when loved ones are involved. There are many instances through the ages of mothers bravely sacrificing all, even life itself, to protect and nurture their children. There have also been cases when the diagnosis of a seriously deformed fetus has been proved wrong and a child has been born with no more than minor abnormality, or even fully healthy.
Now for the logic. If for some reason it is decided to have an abortion at a very late stage when the fetus is capable of being born alive, say a week before the birth, under the proposed Amendment No. 20 that would be lawful in certain not easily defined cases. However, if a child is born with more serious abnormalities than were diagnosed, it would be a crime—of infanticide I believe—to kill that child a week after birth, however deformed it was. That cannot be sound logic. It must be bad law.
Lastly, I come to the ethical dimension, perhaps the most important of all. Here the analogy with the debate that we have had on many occasions in both Houses on the death penalty for murder is a good one. For good reasons Parliament has concluded that it is better for many murderers to escape the penalty of death rather than that one person should be hanged and subsequently proved to be innocent. So I believe that we should proclaim, as firmly and clearly as we can, the importance of saving the life of the unborn child. We should minimise in every possible way the risk of killing the unborn child unnecessarily.
Those are all very difficult and painful issues. As I said, I listened with great admiration to the speech of the noble Earl, Lord Erroll, which was so relevant to
1074
this difficult issue. Amendment No. 20 would allow abortion under certain, not easily defined, conditions; namely, the termination of pregnancy by killing the fetus up to the day of birth for reasons other than risk to the life of the mother. All of us in this great, civilised country, whether of any religious faith or none, respect the sanctity of human life. It must therefore be wrong and against every ethical principle of a truly civilised country to permit the killing of a child, a fetus capable of being born alive, a few days before birth, simply because it happens to be within the womb rather than outside it, in any circumstances other than when the mother's life is at risk.
Amendments Nos. 20A and 20B now proposed to Amendment No. 20 would go a long way towards preventing that from happening. I do not believe that they are in any way contrary to the protestations of the noble Lord, Lord Ennals. He wants to see children born alive if possible. Therefore, why not agree to Amendments Nos. 20A and 20B? That is all we seek to achieve—that on every possible occasion the life of the child should be saved if that is possible and that we should lay a duty on the medical practitioner to do all that he can to achieve that.
My noble and learned friend the Lord Chancellor mentioned that that was the current practice. I am sure that it is. However, times change, governments change and doctors change. Should we not enshrine that principle in law? That is what those Amendments Nos. 20A and 20B would serve to achieve. They would enshrine in law the principle that if possible the life of the unborn child should be saved. I submit that they are entirely reasonable and very wise amendments.
Perhaps I may say one thing more. I confidently pray that every noble Lord here tonight will vote as each believes is right and wise and will not be affected by any considerations of convenience of parliamentary business management.
Lord Brightman: My Lords, before the noble Viscount sits down perhaps he will allow me to correct one mistake. He said that the amendments from the Commons drastically altered the Bill of the noble Lord, Lord Houghton. In fact they exactly reproduce that Bill and the Committee's recommendations.
Viscount Caldecote: My Lords, if the noble Lord will read Hansard he will see that I said that the Commons amendments drastically altered the Human Fertilisation and Embryology Bill which was passed by this House. So far as I can remember, I said that the point made by the noble Lord, Lord Houghton, that we had already discussed the issue when we debated his Bill and passed its Second Reading, was not a strong point because of the argument raised by my noble friend Lady Cox. She said that sufficient consideration had not been given to the difference between abortion, which is the killing of a fetus capable of being born alive, and the termination of pregnancy with every intention of preserving the life of the unborn child. I believe that when the noble Lord, Lord Brightman, reads Hansard he will find that that is what I said.
Lord Brightman: My Lords, I apologise to the noble Viscount.
Baroness Warnock: My Lords, I think that the House is being led along a path which, to me at any rate, is new—it may not be at all new to the medical profession—namely, the path which follows a distinction between abortion and termination of pregnancy. I certainly assumed that the two meant the same. But it is very dangerous to make the assumption that in the case of terminations under paragraphs (a) (b) and (c), there is not generally a very strong desire on the part of both the mother and the doctors to save the child if possible. We should take that for granted, even though people may be able to cite evidence where the opposite is true.
Considering the very small number of cases of late abortions for those reasons, I believe that it is extremely unlikely that in many of them there is a desire that the child should die and not survive. Therefore it is misleading to be told that if we pass Commons Amendment No. 20 as it stands we shall be on the side of killing the child. That is rubbish. We shall still be on the side of saving the child where possible.
It is different when we come to terminations on the grounds set out in paragraph (d). Here one is talking about a child who is very severely damaged and cannot live a meaningful life. In the committee on which I had the honour to serve under the chairmanship of the noble and learned Lord, Lord Brightman, we used the phrase "a meaningful life". I do not believe that today we have said anything that makes clear, first, what is meant by "capable of being born alive" and, secondly, what is meant by "capable of living". We have not settled the question of whether that means living for a minute, a month or a year, by artificial inflation of the lungs or without such drastic measures. None of those points has been considered, nor do I think that they should be considered. I believe that there is a minute number of children—we have heard figures of 23 or 24—who are aborted on those grounds. In every case it is a tragedy. In every case it is difficult to bear.
However, I should like to go back to something that was said earlier. I remind your Lordships that, if the law is not amended in this way, it is in fact the mother who has to carry the child from week 28 until week 40. That is the length of a whole school term. Twelve weeks is a long time. I do not believe that enough attention has been paid to that appalling demand which Hugh Montefiore, the right reverend Prelate the Bishop of Birmingham, quite explicity said he thought ought to be imposed on the woman.
The plea that I make is that noble Lords should consider this set of amendments as a whole and pass them all without entering into arguments about how many children will be wanted and how many are not wanted, and bear that in mind.
The Duke of Norfolk: My Lords, before the noble Baroness sits down perhaps I may say a few words. I hesitate to do so because she is much wiser than I am on this subject, but I understand termination of
1076
pregnancy after 24 weeks to be either abortion when the child is killed or induced birth when the child is kept alive and the live child is born or there is a Caesarean operation. It is for that reason that we have tabled our amendment. We want it to be an induced birth and not a destruction of the child in the womb.
6.15 p.m.
Lord Rea: My Lords, it may be appropriate if I say a few words as a practising doctor. The movers of the amendments may feel that that qualification diminishes the worth of my contribution. However, I hope that noble Lords who have not made up their minds will accept that individual doctors and the great majority of the profession as a whole, as well as most obstetricians and gynaecologists, feel that the Commons amendments are entirely appropriate. They modernise the 1967 Abortion Act and bring the law into line with current practice in most cases. They will remove the anomaly of the Infant Life (Preservation) Act 1929 under which gynaecologists operating in good faith risk prosecution for carrying out a humane procedure.
I should like simply to address subsection (1) (d) in Commons Amendment No. 20 which concerns severe handicap. The noble Baroness, Lady Warnock, covered much the same point that I wanted to make. When a child with a severe handicap has been diagnosed late (and, as has been pointed out, sadly, that happens very occasionally), the new clause inserted into the Bill allows the mother or both parents to opt for a termination of pregnancy—I use that word advisedly; I myself consider that it means the same as an abortion—if they so wish, with no gestational restrictions. But it does not require them to have a termination. They are perfectly at liberty to continue with the pregnancy if their conscience dictates that the mother should give birth and they should look after a very severely handicapped child until it dies, possibly after a few hours or maybe a few years depending on how serious is the handicap.
Obviously some will make that choice, as the noble Lord who spoke recently pointed out. But I believe that the majority of parents in that position will opt for a termination and will not want the child to survive. After a period they will try again with the strong expectation of conceiving another normal child in its place. The Lords' amendments remove that choice from the unfortunate couple and, as the noble Baroness, Lady Warnock, said, force the mother to continue with the pregnancy because—in the words of the amendment—if a doctor:
"takes all reasonable steps to secure that the child is born alive"
he or she must allow that pregnancy to continue to full term.
In my opinion the movers of these amendments are forcing the majority of women in that position, and the majority of gynaecologists, to follow the movers' minority belief. They are thus removing the choice of women to replace their handicapped fetus with a healthy normal pregnancy and causing them to bear an unwanted and deformed child possibly for as long as 12 weeks.
The Lord Bishop of Gloucester: My Lords, reference has been made several times to the Select Committee of this House and I have to own that I was a member of it. I was glad to sign the report. As was rightly said, its conclusions were unanimous. Because I intend to vote in favour of the two amendments in the name of the noble Baroness, Lady Cox, I shall offer a brief word as to why I shall do so.
With his usual impeccable fairness the noble and learned Lord, Lord Brightman, explained to us the conclusions of the committee. I disagree with him on only one comparatively tiny point; namely, that the phrases and words of the amendments which have come to us from the Commons do not line up with sufficient accuracy with the words of our recommendation. In its conclusions the committee said that termination of the pregnancy must be essential to the physical or mental health of the pregnant woman. Let me compare that with the grounds put before us in the Commons amendment:
"to present grave permanent injury"
or that there would be:
"risk to the life of the pregnant woman, greater than if the pregnancy were terminated".
I must say that there is a significant gap which causes me some anxiety. Perhaps I may add at once that I accept fully the other recommendations of the committee as expressed in the Bill brought forward by the noble Lord, Lord Houghton. I take my place with others on the stall of penitence in not having been present when that Bill was debated in this House. If the amendment is pressed to bring back the Infant Life (Preservation) Act, I shall certainly vote against it.
There are cases where the termination of a pregnancy after the 24th week might well have to be by abortion. The evidence put before us convinced me of that. However, I do not believe that that would cover absolutely, totally and without peradventure every case. The hypothesis—perhaps it is more than a hypothesis—has been put before us already today that a pregnant woman may be suffering from hypertension to such a degree that her pregnancy could be terminated. I do not understand medicine but it seems unnecessary to hypothesise that that fetus could not be born by induction (as any other premature baby might be) and could not lead a perfectly normal and healthy life. Surely it should be induced.
We entirely accept the reassurances given by several Members of this House that the medical profession would normally do so and would ensure that the child was born alive. However, I believe that no harm and perhaps some good would be done if such provision were nudged into the legislation by the modest amendments, Amendments Nos. 20A and 20B. They provide only that all reasonable steps should be taken to ensure that the child is born alive.
In my belief, more important is the signal that Parliament would or would not send to the community over this matter. Should we not make it as clear as we can that if a child can be born alive it should be? There may be reasons that that is impossible or undesirable. Those reasons may in some cases be, sustained. But surely the burden of proof
1078
must be decisively on those who would abort a child who could at that point in time be born alive. It is not necessary to suppose that the amendments would compel mothers to carry their children in all cases to term. They probably would not. I believe that the noble Duke, the Duke of Norfolk, is perfectly right. But why should we even by assumption appear almost to obviate, if not prohibit, the induced birth of a healthy child, or even a child with some handicap? If we leave the wording as it is, the presumption will go abroad that termination in each case means abortion.
With the greatest respect to the noble and learned Lord, Lord Brightman, he used the words "termination" and "abortion" as though they were synonymous. I believe that these amendments need not be synonymous. It would be right and accurate if we were to ensure by these amendments that those words were not so construed.
Lord Mackie of Benshie: My Lords, I had not intended to speak. However, I must take up one point raised by the right reverend Prelate. I do not believe that doctors should make laws. The laws must be made by Parliament. Certainly we must take their views into account because their profession is a competent and a caring one.
The point that the right reverend Prelate made about abortion and termination and induced birth is amply covered. I was most impressed by a letter that I received. It has been referred to several times. It was signed by 21 distinguished obstetricians from Aberdeen to north Devon, all of them at the top of their profession. They support the Commons amendment. The letter refers quite clearly to the point that the right reverend Prelate made. It states:
"If the foetus is mature enough to have a reasonable chance of survival with intensive care, all possible steps are taken to optimise the survival of both mother and foetus; delivery is then usually by caesarean section".
That appears to cover the point made by the noble Baroness, Lady Cox, and others.
At the end of the day, the doctors have to interpret the law in a desperately caring and difficult situation. Without any doubt we should listen to their views. For that reason I shall vote for the Commons amendment.
The Earl of Perth: My Lords, I had intended to speak only on Amendment No. 20B. After listening to the speeches of noble Lords, it seems to me that the two amendments have been covered in one debate.
Baroness Cox: My Lords, no. With the leave of the House, we agreed earlier that they would be dealt with separately. Rather than waste the noble Lord's time while speaking now, when he may wish to make the same points on the second amendment, perhaps I may say that there is a separate debate on that amendment.
The Earl of Perth: My Lords, I recognise what the noble Baroness says. However, while we shall have a separate vote on Amendment No. 20B, almost every speaker has combined arguments on the two amendments.
The noble and learned Lord the Lord Chancellor worried us about what would happen if we decided to accept the amendments. Others have taken the same

1079
line. The noble Lord, Lord Ennals, for example, said that we must not change the position now because that is against the provision that the Commons agreed. However, if as a House we feel that such provision is wrong we have a duty to put our views and the provision that we should like to the other place. If it turned us down I doubt whether there would be a constitutional crisis, although no one can say for certain.
The noble and learned Lord, Lord Brightman, made a most powerful speech. He was arguing in favour of Amendment No. 20. None of us is arguing against it. The debate was very interesting but it was not relevant to the amendments. He said that we must trust the doctors. I understand that, but I believe that at times the doctors may need guidance.
We had the entertaining speech of the noble Lord, Lord Houghton. I am not sure whether entertaining speeches are appropriate on this subject, but never mind. He spoke entirely about Amendment No. 20, what he did in the past, and so on. He said, "If you pass the amendments they will be evil". Those were his words. I tried to understand why they would be evil. It was because it would put pressure on the doctors. That is exactly what I consider should be done. There should be pressure on them to think very seriously before they act. I am not in the least afraid of doing that.
Many noble Lords will recognise the enormous problem that the doctors have in making a decision with regard to the unborn child. However, I do not believe that one should put the responsibility on the doctors without guidance from this House. I believe that the two amendments help to give such guidance.
Those of us who believe in God should not expect doctors to make His judgments. Perhaps I may tell noble Lords a very short story.
Lord Hailsham of Saint Marylebone: No!
The Earl of Perth: My Lords, the story is this—despite the chuckling of the noble and learned Lord in the corner. Two doctors were debating whether they should end a pregnancy. The father had syphilis; and the mother had tuberculosis. The first child was born blind; the second child died; and the third child was deaf and dumb. The question that was put by one doctor to the other was, "What will you do in this case?". The doctor said, "I suppose that there is no option but to terminate the pregnancy". If that had been done, there would be no Beethoven. I tell that story because it is of immense importance that we should not try to make a judgment that is God's. That is what worries me. There are many similar cases but we should never forget that often seriously handicapped children have compensating gifts which make life worth while from their point of view and that of the world.
Noble Lords may believe that my final point is a little far fetched, but I do not believe so. If we allow doctors to decide whether to take life because a child may be handicapped, does that not come close to saying that euthanasia is also reasonable? It could be
1080
said, "Here are people who are handicapped; admittedly they are old, and we should terminate their lives as well".
I hope that in speaking to both amendments I have not overstepped the mark. I may speak again, as the noble Baroness, Lady Cox, has said. I beg your Lordships to recognise the fact that the amendments are not against Amendment No. 20—far from it. All noble Lords who have spoken have accepted Amendment No. 20. However, we have sought to make the doctors think about whether the child is to be born alive.
6.30 p.m.
Lord Stallard: My Lords, I had intended to speak for much longer than I shall speak. I had prepared a long speech but, after having read the reports, listened to the arguments and sat in the Chamber throughout this debate, I have changed my mind. I and many other people are puzzled by one issue. I have deferred and held back because of the number of experts that we have heard this afternoon. We have heard experts from the religious, medical and political fields. What came across is the difference between them. I have no medical expertise apart from almost a lifetime spent on health committees and in advising and counselling for advice services in the voluntary sector. Apart from that, I was an engineer.
However, I have a gut reaction which is common to millions of people outside the House. I have listened to and read about debates, and I have watched television programmes on the subject. Together with many people who have no knowledge of the subject and have read no reports, I say, "They are going too far. This thing is going over the top". The debate today has shown clearly that there is a difference in the position that exists and the position that is being proposed. I have heard the difference enunciated by a number of speakers. My difficulty is in interpreting the feeling, "They are going too far. What can we do to stop them?".
I am not intimidated by my noble friend Lord Houghton. I have long admired and respected him and have supported him in his excellent campaigns on animal welfare and vivisection. However, I depart from him on this issue. I am not intimidated when I hear him saying, "This will do damage here; that will happen there; and the Commons will be upset". Our job is to do what we think is right; to amend the Bill where we believe that there are weaknesses, to strengthen it where we believe it needs strengthening and then to send it back. No doubt we shall be flexible and speedy in order to allow the timetable of this Session to be maintained. No one wishes to wreck the Bill or the timetable; but we do not wish to be seen to be allowing legislation which we believe is wrong to pass. I am one of those who believe that this legislation is wrong and that there is a major difference.
I have read the report and I am confused by it. It pays scant attention, if any, to the views of the Royal College of Obstetricians, the Royal College of Midwives, the Health Visitors' Association, the Royal

1081
College of General Practitioners and other professional bodies which call for an upper limit of 24 weeks. No mention of that is made in the report of the Select Committee, and it is touched on only vaguely elsewhere. I recall previous debates when we were told by those justifying the use of human embryo for research, for instance, that we had to vote on the grounds that all the main medical bodies in this country were urging the pursuance of such practices. Now they have turned the issue upside down because all the main medical bodies in this country have said that the upper limit should be 24 weeks and are now telling us to vote against—
Noble Lords: No, it is the other way round.
Lord Stallard: My Lords, those of us who do not have a great deal of medical knowledge must be careful. If noble Lords read the conclusions in Part V they will see that my comments are correct. The contention that there is a difference and that the existing Bill will lead to abortion on demand up to birth did not come from any pro-life organisation. It came from an article in a paper with which I do not agree—that is, the Guardian. On the day after the debate in the other place, it stated that the clause might be interpreted so liberally that it becomes abortion on demand without limit of time. Who is to say that the Guardian is speaking for the pro-life movement or is a member of SPUC? That is where the argument first originated. I could go on for a long time—
Noble Lords: Hear, hear!
Lord Stallard: My Lords, I am grateful for your support and I shall try to return the compliment some day.
I understand that under the Infant Life (Preservation) Act 1929 which is still in force a baby may be destroyed in the womb only with the aim of "preserving the life of the mother". That is important and we all accept it. There has been no argument about the length of the pregnancy when such a condition has existed. However, the Bill as it stands without the amendments permits abortion for:
"risk to the life of the pregnant woman, greater than if the pregnancy were terminated".
That is a diminution of the legislation which now exists and it is weakened. I am not in favour of weakening the position of the mother in such circumstances. I am in favour of maintaining the position and amending as we have suggested.
The noble Lord, Lord Houghton, read from a newspaper or journal from the pro-life movement in order 10 justify his claim. That justifies me reading from a letter which my noble friend Lord Houghton distributed. That states that we should get down to the fundamentals of the issue. It says that abortion has existed since the beginning of human life. No country and no religion has ever been able to prevent or stop it. It goes on that the Irish Republic is the only fundamentalist country left in the European Community and it exports its abortion cases to us. I would refute that totally.
1082
As regards the Irish position—and it is worth mentioning because that is an injustice to a friendly country—the Irish constitution is quite clear. It underlines the principle that the state acknowledges the right to life for the unborn child having due regard to the equal rights of the mother, and all practical and reasonable steps are taken to uphold that principle. That was put to the country in the form of a referendum. This matter has never been put to our country in the form of a referendum, so why should we criticise what another sovereign state has done?
The result of the referendum was an overwhelming majority in favour of the constitution. As regards the other part of Ireland, the only matter which unites the people in the six counties of Northern Ireland is their abhorrence of abortion. They regularly vote together against any attempts to worsen the present situation. For those reasons, and many more, I intend to support the amendments.
6.45 p.m.
The Lord Chancellor: My Lords, we have had a long debate and it has covered a good deal of ground —some of it not entirely covered by the amendment which we are presently discussing.
Therefore, I should like to remind your Lordships of the question raised by this amendment. There is no question in this amendment of altering the grounds for medical termination of pregnancy stated in the Commons amendment and no proposal in any way to alter those in their definitions. Therefore a good deal of comment made about that is not particularly relevant to the amendment. I should like to show that the amendment is engrafting a proviso to the lawfulness of abortions or terminations of pregnancy, to be accurate, on the grounds specified in paragraphs (a), (b) and (c) of the Commons amendment.
It is worth reminding ourselves that what has happened as regards the Commons amendment is that the law relating to medical termination of pregnancy has been modified by including for the first time in that legislation a time limit; namely, 24 weeks. Essentially, that was the question considered by the Select Committee—that is, whether a time limit should be put into the abortion legislation; and, if so, what it should be. The House of Commons has introduced into the abortion legislation a time limit of 24 weeks.
That applies except for the exceptions specified. My noble and learned friend Lord Brightman has explained how the committee which he chaired reached the conclusion that it was right to make a reduction in the time limit from what had previously been thought to exist—and I shall come on to explain how that was so—and to make exceptions from that provision for the time limit. Those exceptions are mirrored in paragraphs (b), (c) and (d).
It is true that the word used in paragraph (b) is "necessary" and that may be capable of being distinguished from "essential". However, that is a fairly narrow distinction. The three paragraphs (b) (c) and (d) are intended to mirror the exceptions from the reduction in the time limit which the committee proposed. I shall not go into the justification for those.

1083
I merely say that the committee reached the view that those exceptions were appropriate on the basis of the evidence which it took and its considerations.
In respect of paragraph (a)—the 24 week case—it is proposed by this amendment to introduce a proviso. I believe that I am right in saying that the medical evidence is that under 24 weeks the chance of a fetus being born alive is not very great. In the current medical view, at 24 weeks there may be a possibility of life independent of the mother if the child is delivered. The 24 week period is fixed on that basis.
As I said earlier, until this provision is implemented —if it is—the law regarding time limits has stood upon the Infant Life (Preservation) Act 1929. That Act was based on the idea of the capability of life. It contained in its provisions a presumption about the capability of life. I shall read that because it is quite important and my noble friend the Duke of Norfolk referred to it. It states:
"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".
That gave a legal presumption—a rebuttable presumption because it is prima facie proof—that if she had carried a child for 28 weeks, it was capable of being born alive. It …as from that Act that the general view was taken that there was a 28 week limit on abortions.
However, it is important to notice that the 1929 Act made it an offence for any person who:
"with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother".
That was the basis on which the offence was created. It was not a question of failure to take steps but required the doing of a wilful act with intent to cause the child to die.
That Act contains this proviso:
"no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother".
The result was that the committee recommended that the 28 weeks which appears there should, in modern times, be taken into the abortion legislation and changed into the shorter period of 24 weeks. That is the primary effect of this part of the Commons amendment—that is, to reduce that.
Against that background, the proposal is made to amend in order to insert the words of Amendment No. 20A. As I say, that amendment is intended to apply to paragraphs (a), (b) or (c). As my noble and learned friend Lord Brightman pointed out, that creates a difficulty in respect of paragraph (a) where the 24 week time limit is applied.
I wish simply to summarise the question. The question is whether this House should put an additional responsibility on the doctor carrying out an operation under this statutory provision, to determine that the child is capable of being born alive. The
1084
amendment does not make that capability dependent on the doctor's opinion. It is an absolute criterion that is taken. Your Lordships will also remember that that doctor is taking a decision in respect of a child in utero, and must reach a conclusion upon that matter before any operation is undertaken.
My next point is that the amendment requires that if that set of facts is established, and that set of facts is an objective set of facts not dependent upon the doctor's opinion, then the doctor is bound to take all reasonable steps to secure that the child is born alive. In paragraphs (b) and (c) with which the amendment is concerned, the medical situation of the mother is sharply in focus. The life of the mother is specifically referred to in paragraph (c). That is the emphasis of that paragraph—that it involves risk to the life of the pregnant woman; that it is a life-threatening pregnancy with which one is dealing.
The question is whether the amendment is obliging the doctor to take all reasonable steps to secure that the child is born alive, whatever effect that may have on the life or health of the mother. That is a question which must arise on the amendment. The argument in favour of the amendment is that the concept of capability of being born alive is an essential one. In some ways it is a watershed of the legality or moral propriety of the operation. However, I remind your Lordships that in 1929 when Parliament dealt with this it did so on the basis of weeks of pregnancy and left that otherwise open to evidence.
The argument to the contrary is put on the basis that the criteria supplied are the criteria under which the medical practitioner should operate without further qualification. I must point out that breach of the condition under which authorisation is given exposes the medical practitioner in question to criminal prosecution. In other words, if it were shown in any specific case that a doctor had not taken what the court regarded as all reasonable steps, and it was proved to the court's satisfaction that the child was capable of being born alive, that doctor would be liable to prosecution for a criminal offence. He might fall foul of the other offences which regulate that area.
I said earlier that the Government are entirely neutral on this matter. I have sought to put before your Lordships the facts to be considered. The noble Lord, Lord Houghton of Sowerby, criticised the Government for putting your Lordships in this position. The Government sought to arrange time for a structured and full debate on the matter in the House of Commons, and your Lordships have the opportunity of discussing it once more, having discussed it already under the Bill of the noble Lord, Lord Houghton.
I do not seek to worry—I believe that was the word used by the noble Earl, Lord Perth—about what might happen, whatever your Lordships do. All I said, and it is an indisputable fact, was that consent of both Houses is required for the Bill to become law. I state that as a fact your Lordships will wish to bear in mind when considering a course of action. It is for your Lordships to decide in the light of your own conscience how to deal with the amendment.
Baroness Cox: My Lords, perhaps I may briefly thank every noble Lord who contributed to this important and often moving debate. I wish to make three points. I cannot emphasise too strongly that Amendment No. 20A would not, in any situation whatever, constitute grounds for termination of a pregnancy covered by the House of Commons amendment. In other words, the House of Commons amendment allows for a termination of pregnancy according to a number of grounds. Our amendment would in no way prevent that termination of pregnancy.
We are not opposed to the termination of a pregnancy if the mother's health and well-being are at risk. Amendment No. 20A says that in such a situation, where it appears that the mother's well-being requires the termination of a pregnancy, the outcome should not be intentionally an abortion. The Abortion Act would apply. The outcome should be termination of a pregnancy with every effort reasonably made to secure and protect the life of the child. The mother's well-being comes first. But the amendment puts the onus on the medical practitioners to do heir utmost to protect the life of the child.
There is nothing inconsistent with the spirit of the two amendments. As the right reverend Prelate the Bishop of London said, it puts the presumption on life rather than, as in the case of abortion, on death. We are not speaking of handicaps. Some valid and sensible points were made regarding babies with handicaps discovered in utero. That is the substance of another amendment and another debate. I ask noble Lords not to take those points on board when considering Amendment No. 20A, which relates to the well-being of the mother and which we regard as being paramount. But, after 24 weeks, if the child is capable of life, we ask that it be protected.
My final point is that it has been made very clear that at present professional practitioners would protect the child anyway. We do not wish to impugn the integrity of professional practitioners. But if the law is amended by the Commons amendment as it now stands, the child will become vulnerable at law. My right honourable friend the Secretary of State said that at present the child is protected by the good practice of clinical practitioners. But the child will not be protected by law from abortion on those grounds, many of which are open to vague interpretation.
We are not legislating against good practice. One does not need to legislate against that. We are attempting to close a potential loophole against possible malpractice. As we see it, the Commons amendments, which would allow for abortion up to birth, on social grounds might well open loopholes for a malpractice which I am sure your Lordships would not wish to see allowed in any way in this country.
The right reverend Prelate the Bishop of London put the argument very well when he said that we are attempting to put into law the principle of the presumption of life rather than the principle of the presumption of death. It is not a question of putting the mother at any kind of risk. We accept termination of pregnancy. All we ask is that termination of
1086
pregnancy beyond 24 weeks—we welcome that reduction to 24 weeks—should not be on the presumption of abortion but on the presumption that every effort will be made to protect the life of the unborn child. We are afraid that that principle will be jeopardised by the House of Commons amendments as they now stand. Our amendment is an attempt to spell out that principle in a legal framework. I ask noble Lords to support it.
7 p.m.
On Question, Whether Amendment No. 20A, as an amendment to Amendment No. 20, shall be agreed to?
Their Lordships divided: Contents, 89; Not-Contents, 133.

Division No. 1

CONTENTS

Ailesbury, M.

Lytton, E.

Alexander of Tunis, E.

McColl of Dulwich, L. [Teller.]

Ashbourne, L.

Macleod of Borve, B.

Belhaven and Stenton, L.

Masham of Ilton, B.

Bessborough, E.

Massereene and Ferrard, V.

Boardman, L.

Mersey, V.

Braye, B.

Milverton, L.

Brentford, V.

Monckton of Brenchley, V.

Byron, L.

Monk Bretton, L.

Caldecote, V.

Mottistone, L.

Canterbury, Abp.

Mowbray and Stourton, L.

Carnock, L.

Murton of Lindisfarne, L.

Chester, Bp.

Nelson, E.

Clanwilliam, E.

Norfolk, D.

Clifford of Chudleigh, L.

Parmoor, L.

Cockfield, L.

Pearson of Rannock, L.

Coleraine, L.

Perth, E.

Cork and Orrery, E.

Petre, L.

Cox, B. [Teller.]

Pitt of Hampstead, L.

Craigmyle, L.

Portsmouth, Bp.

De L'Isle, V.

Portsmouth, E.

Denman, L.

Reading, M.

Eden of Winton, L.

Ripon, Bp.

Ellenborough, L.

Robertson of Oakridge, L.

Elles, B.

Ryder of Warsaw, B.

Elton, L.

St. Albans, Bp.

Fitt, L.

St. John of Fawsley, L.

Gainsborough, E.

Salisbury, M.

Gladwyn, L.

Savile, L.

Gloucester, Bp.

Sidmouth, V.

Hampton, L.

Simon of Glaisdale, L.

Harvington, L.

Southwark, Bp.

Havers, L.

Stafford, L.

Holderness, L.

Stallard, L.

Howe, E.

Stoddart of Swindon, L.

Hylton, L.

Strange, B.

Iddesleigh, E.

Swinfen, L.

Kilbracken, L.

Terrington, L.

Kinnoull, E.

Thomas of Gwydir, L.

Lauderdale, E.

Tonypandy, V.

Liverpool, Bp.

Vaux of Harrowden, L.

Liverpool, E.

Wilberforce, L.

London, Bp.

Winchester, Bp.

Longford, E.

York, Abp.

Lothian, M.

NOT-CONTENTS

Aberdare, L.

Beaverbrook, L.

Addington, L.

Belstead, L.

Allen of Abbeydale, L.

Birk, B.

Ampthill, L.

Blackstone, B.

Ardwick, L.

Bledisloe, V.

Arran, E.

Blyth, L.

Astor, V.

Boston of Faversham, L.

Attlee, E.

Boyd-Carpenter L.

Aylestone, L.

Brightman, L.

Balfour, L.

Brougham and Vaux, L.

Barnett, L.

Butterworth, L.

1087

Campbell of Alloway, L.

Llewelyn-Davies of Hastoe, B.

Carlisle of Bucklow, L.

Lloyd of Hampstead, L.

Carnegy of Lour, B.

Lockwood, B.

Cavendish of Furness, L.

Long, V.

Cledwyn of Penrhos, L.

McIntosh of Haringey, L.

Clinton-Davis, L.

Mackie of Benshie, L.

Colwyn, L.

McNair, L.

Craigavon, V.

Merrivale, L.

Crickhowell, L.

Meston, L.

Croham, L.

Monson, L.

Crook, L.

Mountevans, L.

Dainton, L.

Mulley, L.

David, B.

Munster, E.

Davidson, V. [Teller]

Murray of Epping Forest, L.

Denham, L. [Teller]

Nathan, L.

Derwent, L.

Nicol, B.

Diamond, L.

Northfield, L.

Donaldson of Kingsbridge, L.

Nugent of Guildford, L.

Dormand of Easington, L.

Oram, L.

Elibank, L.

Orkney, E.

Elliot of Harwood, B.

Oxfuird, V.

Ennals, L.

Pender, L.

Erroll, E.

Peston, L.

Ewart-Biggs, B.

Piatt of Writtle, B.

Feversham, L.

Prys-Davies, L.

Fisher of Rednal, B.

Rea, L.

Flowers, L.

Reay, L.

Glenarthur, L.

Renton, L.

Graham of Edmonton, L.

Renwick, L.

Haden-Guest, L.

Richard, L.

Hailsham of

Romney, E.

Saint Marylebone, L.

Roskill, L.

Halsbury, E.

Russell, E.

Hankey, L.

St. John of Bletso, L.

Hanworth, V.

Seebohm, L.

Harris of Greenwich, L.

Selborne, E.

Hatch of Lusby, L.

Selkirk, E.

Henley, L.

Selsdon, L.

Hives, L.

Serota, B.

Hooson, L.

Shaughnessy, L.

Houghton of Sowerby, L.

Sherfield, L.

Howie of Troon, L.

Stedman, B.

Hunter of Newington, L.

Strathcarron, L.

Hylton-Foster, B.

Strathmore and Kinghorne, E.

Jeger, B.

Templeman, L.

Jellicoe, E.

Thomson of Monifeth, L.

Jenkin of Roding, L.

Thurlow, L.

Jenkins of Hillhead, L.

Trumpington, B.

Jenkins of Putney, L.

Turner of Camden, B.

Kearton, L.

Vernon, L.

Kenilworth, L.

Warnock, B.

Kilmarnock, L.

White, B.

Kissin, L.

Williams of Elvel, L.

Knollys, V.

Willis, L.

Lawrence, L.

Wilson of Langside, L.

Listowel, E.

Wise, L.

Resolved in the negative, and Amendment No. 20A disagreed to accordingly.
7.8 p.m.

AS AN AMENDMENT TO COMMONS AMENDMENT No. 20
20B Subsection (1), at end insert:
("Provided that, if the ground for terminating the pregnancy is that specified in paragraph (d) above and the child is capable of being born alive and is not suffering from a handicap incompatible with life, the medical practitioner terminating the pregnancy takes all reasonable steps to secure that the child is born alive.").
Baroness Cox: My Lords, I beg to move Amendment No. 20B. In introducing Amendment No. 20B as an amendment to Commons Amendment No. 20, I shall speak very briefly.
I must begin by emphasising with great sincerity that I do not in any way underestimate the agonising situation in which parents may find themselves when
1088
confronted by the knowledge that they have a fetus which is afflicted by a mental and/or a physical handicap. I know that these points were made in the earlier debate and I respect them with complete sincerity.
In my own profession I have been with people confronted by such appalling dilemmas. I do not in any way under-estimate the social and domestic problems which the birth of a handicapped child may pose in certain circumstances. Therefore I have deep respect for the concerns relating to the problems to which subsection (1)(d) of Commons Amendment No. 20 refers. But it is well known that the vast majority of such problems are identified before the 24th week of pregnancy, and therefore the agonising decisions and actions relating to termination can be taken in the vast majority of cases within the first five to six months of pregnancy. Modern techniques of screening and scanning, including ultrasound, amniocentesis, tissue culture, chorionic villus sampling and photoscopy are so effective that almost all fetal abnormalities can be detected within the first 18 weeks of pregnancy—many much earlier—allowing time for assessment and decisions within the 24 weeks allowed for in the Commons amendment.
For example, conditions such as anencephaly, open spina bifida or Down's syndrome can all be identified by the 17th to the 20th week of pregnancy, allowing time for parents to decide before the 24th week how they wish to respond to the tragic predicament confronting them. It is important to emphasise that none of the official medical, midwifery or other professional organisations expressing a view has ever suggested otherwise. Indeed, my right honourable friend the Secretary of State in another place has always made it clear that the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, the Royal College of General Practitioners and the British Paediatric Association all want an upper limit of 24 weeks for abortion. In not one case has any major professional body argued for termination of pregnancy up until birth except on the ground that it was necessary to save the life of the mother, which was the substance of the amendment previously debated. But as we noted during debate on the amendment, it is common practice, where termination is required for this reason, for every effort to be made to save the life of the child also.
We recognise that there are conditions such as hydrocephaly or microcephaly which can develop late in pregnancy. Some indeed develop or can be diagnosed only after birth. If they are diagnosed in utero and are deemed to be incompatible with life, then they would come within the terms of reference of the amendment. There is therefore no good case for allowing legal abortion—in other words, the killing off of a fetus—after the 24th week of pregnancy except in the two kinds of circumstances identified: where the life of the mother is at risk or where the infant is diagnosed as suffering from a handicap of such severity as to be incompatible with life, as in cases, for

1089
example, of anencephaly or such gross cardiac malformation that the child could not survive beyond its first gasp.
I am aware that this is an immensely sensitive matter. I am also aware that in the relatively few circumstances of late diagnosis of very severe handicap the problems of continuing with pregnancy can be immense. But we have to consider the alternatives. For example, what kind of message are we sending to handicapped people if we choose to agree that late abortions, once a child is viable, may be granted on the ground of handicap, physical or mental, which is not incompatible with life?
I do not know whether many of your Lordships have seen the television programmes in which handicapped people describe life with their handicaps, saying how glad they are to be alive. Are we to deny handicapped babies the chance of such life, or are we to denigrate the magnificent contribution which handicapped people make to the quality of life of other people and to society in general? Many people would testify to the love and the joy which can be given and received by people who suffer from Down's syndrome. Is the message to be that, as a nation, we really do not want them here? That is how the Commons amendment could be interpreted. I cannot believe that it is an aspect of the Commons amendment which commands your Lordships' support.
I am fully aware of the sensitivity of these matters and I speak with great attentiveness. But I and other noble Lords who support Amendment No. 20B believe that the principle of the amendment is of immense importance. It strives to maintain a balance regarding the rights of a mother to decide what is in the best interests of herself and others closely involved in the tragic event of finding that her baby is handicapped and to take such action as she feels appropriate up to 24 weeks of that child's life. In the vast majority of cases, early diagnosis would enable any action to be taken much earlier than that, often in the first three or four months. But once the baby becomes capable of sustaining independent life we believe that it should receive the protection of law; and of course all the health and welfare services will be available to help to support and to care for that baby, for the mother and for all concerned if the child is carried to term and delivered alive.
We strongly believe that this is morally and legally the best approach to a human problem which is indeed unquantifiable in its poignancy but is not solved by killing a viable baby. There are people alive today enjoying a quality of life, loving and being loved, and contributing to the lives of other people. Others like them may not be alive in the future if the Commons amendment becomes law. I beg to move.
Moved, That Amendment No. 20B, as an amendment to Commons Amendment No. 20, be agreed to.—(Baroness Cox.)
7.15 p.m.
Lord Brightman: My Lords, this amendment relating to the seriously deformed child says this. In the case of a termination because of a substantial risk of serious abnormality, the doctor is required to take all reasonable steps to secure that the child is born alive provided, first, that the child is capable of being born alive; and, secondly, that the child is not suffering from a handicap incompatible with life.
There are two fatal objections to the amendment. First, there is the obscurity of the language. What is meant by "a handicap incompatible with life" as distinguished from a handicap compatible with life? Compatible with life for how long—life for a month or a year; until adolescence; until the age of 40; or until some other period, perhaps an hour or a minute? Given that the proviso is only to apply if the child is capable of being born alive, how can one say that it suffers from a handicap incompatible with life unless one defines what one means by life?
Secondly, the direction to the doctor to ensure that the child is born alive is inappropriate. If the diagnosed handicap was such that the doctor would, if there were a termination, be under a duty to ensure that the child lived, the doctor would have no business to be terminating the pregnancy at all. The surest way of ensuring that the handicapped child lives is to leave it in the womb so that it goes full term. The amendment has two defects; first, obscurity; and, secondly, total irrelevance.
Lord Ashbourne: My Lords, as I have put down my name to this amendment perhaps I may be permitted to say a few words. If it is not accepted, are we not saying in effect that all seriously handicapped people are valueless, expendable and may be wiped out at will?
Noble Lords: No!
Lord Ashbourne: That seems an appalling situation when we compare it with the supreme worth put on the value of one human being by the Saviour of the world.
Like the noble Earl, Lord Erroll, who spoke earlier, I am also the father of a handicapped child. I know the difficulties, the trauma and the stress which may be involved in bringing up a child of this nature. My own son is aged 19 and he cannot speak, read or write. Medically speaking, there is no prospect of him so doing. Yet I have a very rewarding relationship with him. I am so glad that we never considered aborting him in the womb. My understanding of the new Clause (1) (d) of Commons Amendment No. 20 is that a handicapped child capable of being born alive has no protection whatever under this Bill. I ask the Government this question: am I right in thinking that doctors will be able to kill seriously handicapped babies in the womb with no legal consequences whatever? Should not the intention be to save the life of the child if at all possible? Hence the necessity for this amendment.
I listened to the speech of the most reverend Primate the Archbishop of York earlier this evening with delight, and particularly to his very clear

1091
exposition of the need for and the force behind the amendment. I am not always in agreement with the most reverend Primates and the right reverend Prelates, but it was a particular pleasure for me to be 100 per cent. with them on that occasion. I am saddened by the way in which this Bill has evolved. In my view it completely fails to reflect respect for the sanctity of human life. On behalf of the hundreds of thousands of handicapped babies who may be aborted in the future, I urge noble Lords most vigorously to support this amendment.
Lord Hylton: My Lords, in relation to this amendment it is relevant to say that there exists generous-hearted couples who are willing to adopt seriously handicapped babies and children. In many cases they are unable to find such children to adopt. In cases of late diagnosis of handicap it is greatly preferable to deliver the child, if the pregnancy has to be terminated, by means of Caesarian section or induction rather than by methods which end the life of the child in question.
Lord Richard: My Lords, I shall be brief. I assure those who are proposing this amendment that nothing in the Commons amendments makes abortion or termination of a pregnancy mandatory or compulsory. What we are talking about in this debate, and have been doing so since about 3.15 this afternoon, is basically the balance that one has to try to achieve between the rights of the unborn child on the one hand and the rights of the parents on the other. If the amendments proposed by the noble Baroness are carried, then the tilt of that balance goes somewhat in the wrong direction and away from the position which now exists. Therefore I am opposed to the amendments.
Lord Robertson of Oakridge: My Lords, I have three very short points to make. First, it may have been of help to us if the Government had defined the phrase "seriously handicapped" which is used in Commons Amendment No. 20. I believe that they are unable to do so. The noble and learned Lord the Lord Chancellor may wish to comment on that. Secondly, I ask him whether he would like to comment, if he is able to do so, on the position of the doctor who delivers a child and finds that it is seriously handicapped. Does the doctor have to bring the child to birth and see that it stays alive or can he take another course?
Thirdly, I believe that the Government are to issue regulations that will require doctors aborting a child under this amendment to specify the nature of the handicap.
Lord Elton: My Lords, the noble Lord, Lord Robertson, has put his finger on one important point, if not three. The noble and learned Lord, Lord Brightman, has a genius for attracting my antagonism which is quite at variance with his personality. He said that the defect in the amendment is a lack of definition of life. I take his point entirely. It seems to me that the phrase, "incompatible with life" should be refined. If that is an unsatisfactory position to be left with, what
1092
is the position if we do not have it? Doctors are empowered to terminate a life if failure to do so means that there is a risk of serious handicap.
In common parlance that does not mean anything like leaving a person unable to live a reasonable life. In common parlance serious handicap means something which makes life difficult but not insupportable or unenjoyable. If it has a meaning in law which is more severe than that then your Lordships should be told of it. If not, we are left with a choice between unacceptable definitions or the lack of them. Late though the hour is—and this is a revising Chamber —the only way to secure another definition is to send this matter back to another place. If that is what your Lordships think about the definition in the Commons amendment, I very much hope that noble Lords will very brusquely return it.
Baroness Ryder of Warsaw: My Lords, since 1945 I have had the privilege of working and living among thousands of handicapped children and adults. It is hard to explain the joy and grace which these people give. Their enthusiasm and often their ability to learn, despite their pain and disabilty, and their striving to overcome those difficulties to lead a useful and purposeful life, is quite remarkable. Many are brilliant in the way they cope and achieve what to an ordinary person would be impossible. There are eminent people, like Professor Stephen Hawking, who cannot talk. He is a professor of superspace and supergravity at Cambridge University, and he is but one example.
These people do not commit crimes. Those of us who associate with them have found our own lives more fulfilled and richer, whereas many able-bodied people all too often sadly tend to become greedy for position, money and power. Since 1945 I have yet to hear any handicapped person say that he would have preferred never to have been born. So it is not surprising to learn the rate of suicide among handicapped people is lower than among the so-called normal.
I could give countless examples of individuals who show incredible perseverance and courage. Perhaps I may mention just one. Janet was born with muscular dystrophy into a poor family. Later she was diagnosed to have both rheumatoid arthritis and cancer. In the foundation which I represent we were able to give her medical treatment, nursing care and education. She attained her A levels before she attended polytechnic where she read mathematics. She was later employed in a computer firm where she worked until she died in her thirties.
Understandably, there is great devotion in this country to animals. No fewer than 28 different organisations are here to represent and protect them, including those who believe that no animal should be killed to be made into a fur coat. I am sure that the majority of noble Lords will remember the huge advertising poster showing a great pile of dogs which the Royal Society for the Prevention of Cruelty to Animals has put on hoardings at key points throughout the country in the past year. That poster brought protests. It awoke people in this country to the fact that, according to the RSPCA, about 1,000

1093
dogs each day are put down because their owners have rejected or thrown them out of the house. I am confident that many of your Lordships have supported th RSPCA in what it has been seeking to do.
I turn now to the plight of the unborn children—the immature members of our species. Each working day we legally kill over 700 of these children, some in ways which would bring down the law upon us—and quite rightly—if we used similar techniques on dogs or cats. We tear these babes to pieces. Surely that is murder.
If I were to do as the RSPCA did and produce a picture to demonstrate to your Lordships one day's work in Britain in getting rid of our young, many noble Lord's who support the RSPCA would lead the uproar, attacking me and using words like "macabre" and "obscene". I know about this because pro-abortionists used those precise words to describe perfectly ordinary lifesize, medical models of the 20-week fetus (used in medical and nursing schools throughout the country) when a pro-life group gave them to MPs. Of course, words like "grotesque" and "obscene" are right; not as a description of the models of babies, but of what we as a society allow to happen to unborn children in the name of the right to choose.
As if it is not enough to kill over 700 babies each working day of the year—183,798 in 1988 to be exact, or 3 million since the Abortion Act came into force —we ire now being asked to extend the law to allow abortions past the previous limit of 28 weeks and up to birth. Of course those who oppose us say, "We need to do this for good reasons". One of the good reasons put forward is that the children may be seriously handicapped. I have already spoken on that matter. I hope did so with feeling.
One of the factors which I find most objectionable in the attitude of our opponents is the way in which they refuse to examine fact; for example, the manner in which they describe as "emotive" any scientific argument which we put forward. If we refer to the reaction of the fetus to painful stimuli, there is an immediate uproar with claims that we have no evidence. In fact, there is ample evidence to show that the fetus reacts to stimuli. In view of the fact that we have laws that protect cats and dogs from having pain deliberately inflicted upon them, surely it is high time that we accorded the same right to the fetus.
The right reverend Prelates and others have asked so clearly in this House: do we want to become a country—of which we should all be proud—with the highest number of abortions in the world? I am speaking about matters of which I have some experience. As an auxiliary nurse, I have seen both early and late abortions. No words can express the horror and later the sorrow of the mothers who grieve for their babies who have been destroyed. I have also been present at many births and witnessed the joy of mothers, including single persons. I wonder how many noble Lords have been present at such scenes. Further, is it known to noble Lords that adoption societies have had to close their lists through lack of babies. I
1094
know of couples—indeed, many of them write to me —who are pleading to adopt a baby or a child whether it is handicapped or normal.
I wonder whether noble Lords are aware that a survey carried out by an official Gallop poll in May of this year showed quite clearly that 75 per cent. of the British public are opposed to abortion on demand. Therefore, although we live in a post-Christian society, people are still stirred by their basic instincts calling them to respect human life.
I unashamedly refer to the sacredness of human life. I remember the beautiful thanksgiving words of the Psalmist:
"You created my inmost being. You knit me together in my mother's womb. I praise you because I am fearfully and wonderfully made".
I support the amendment.
7.30 p.m.
Baroness Warnock: My Lords, I wonder whether we are in danger of forgetting the purpose of this amendment. As I understand it, it is concerned with a very small number of women who seek a late abortion because of the severity and handicap of the child which they are carrying. To be in that situation must be a very painful experience. However, I believe it would be even worse if it were known to the woman that the child was going to be, if at all possible, born alive. I say that because the woman, with the consultation, help and support of the doctor, is actually seeking a termination. In such a case this means seeking not to have the child which is so severely handicapped.
I fully admit that in the report from which the original amendment was derived the expression "severely handicapped" was used and that was not subject to definition any more than the words "incompatible to life" are subject to definition. I do not think that a definition of what counts as being severely handicapped would be very helpful because new conditions may arise and some conditions might be more severely handicapping in certain circumstances than others.
However, there already is a very short list of conditions which are deemed to be so severely handicapping that a very late abortion is on the cards whether recommended or desired. We should bear in mind the very small number of abortions—23 a year and gradually decreasing—which are carried out on these grounds.
Lord Hailsham of Saint Marylebone: My Lords, I should like to address my remarks not only to the House but also to my noble and learned friend on the Woolsack. I hope that the noble Baroness who spoke so eloquently from the Cross-Benches will not accuse me of holding human life in any less respect than she does. I am quite aware of what my noble friend who sits behind me referred to when he spoke of the bond which can exist between the heavily handicapped child and its parents and what wonderful examples of love and care they can show.
All the same, I do not find the amendment to be an acceptable one. I thought that my noble and learned

1095
friend Lord Brightman was conclusive on that point. What is "compatible with life"? Is an encephalopathy —if that is the correct form of the word—"compatible with life"? Is micro-encephalopathy—if that is the correct word in that case—compatible with life? I believe that I am right in saying that life would be very short indeed in both those cases; but life will have existed. The child will be born, it will breathe and its heart will be beating. I do not know whether such a child would have any degree of consciousness; indeed, I do not suppose that anyone in this House can know the answer to that question. In any event, it will not live long.
What is meant by the phrase, "compatible with life"? I can find no meaning to it. Moreover, when my noble friend Lord Elton, says, "Let's send it back to the Commons to see whether we can get something better", I can only say that he is an optimist. I say that because in principle it is not possible.
I have another question to ask. I address it to my noble and learned friend on the Woolsack and I hope that he will be able to give us some help on the matter. Where is the burden of proof under this amendment? After all, one must remember the doctors. They are no less infallible and no more subject to original sin than the rest of us. However, there is the concept that a man is innocent unless he is proved guilty.
The doctor who performs such an operation, whoever he may be, will be doing so—that is, if the amendment is passed —under threat of a criminal prosecution. Where under the terms of the amendment is the burden of proof? It is on the defendant to prove that he is innocent. Further, how is the jury to make up its mind on the matter? The amendment also uses the words "all reasonable steps". However, what steps are reasonable and how much is "all"? I just cannot make sense of it. I wish that we had a little less sentiment and a little more common sense about making legislation.
Lord Elton: My Lords, before my noble and learned friend sits down, does he regard the term "serious handicap" as defying definition, as he does "incompatible with life"? If so, how many of your Lordships does it embrace, or where does the line lie?
Lord Hailsham of Saint Marylebone: My Lords, I do not know how serious is "serious". I know that I am handicapped. I walk on two sticks. That is not incompatible with my life, so far as I know; or, at least, so far. I do not believe that I can answer my noble friend's question. All I am saying is that the amendment is under debate. I find it unacceptable unless my noble and learned friend on the Woolsack tells me that it can make some sense, and, if so, what that sense is.
Lord Elton: My Lords, if my noble and learned friend will bear with me, the point of my question was to emphasis that an amendment is needed to define "serious handicap". On the definition that he gave, it does not seem that many healthy people could be safely expected to come to life under the existing legislation.
Lord Hailsham of Saint Marylebone: My Lords, the word "serious" is a matter of degree. I was born with six fingers on my right hand and no joint on my two thumbs. I do not regard that as serious. It has not done me much harm in the event.
The Archbishop of York: My Lords, the noble and learned Lord, Lord Brightman, has made some damaging criticisms of the amendment and yet it tries to say something important even though it says it in an imperfect way. I suspect that if they had their will the movers of the amendment would have preferred a simple amendment to delete paragraph (d) from Commons Amendment No. 20. That was no doubt deemed to be impractical.
As drafted, the amendment fills a gap which resides in the Commons amendment around the phrase "seriously handicapped". There may be disputes about what that means, but there are also disputes medically about whether an infant in the womb is or is not seriously handicapped and whether that can be diagnosed with certainty before a termination is decided upon. As drafted, the amendment slips into that gap and says, "If, acting in good faith, a doctor decides that termination would be right on the grounds of serious handicap", and it is then discovered that the child is viable and has a reasonable prospect of a reasonable life, every effort should be made to preserve it. That is important because in cases of suspected handicap, according to the evidence given to the Select Committee, the child is often killed in the womb before delivery. Despite its illogicality—and it needs to be amended—there is something here that your Lordships' House needs to take seriously and hope that another place can make better sense of it.
Viscount Tonypandy: My Lords, last week I went to my home valley in the Rhondda to embark upon a scheme to help disabled people. I found people who one would have thought could not have a decent life. I was given the details of a person without arms or legs. I did not meet him. He is holding down a job because the Department of Employment and the Department of Health have devised a means of helping grotesquely injured people to find fulfilment in life.
We are putting an enormous responsibility upon the doctors.
Lord Ennals: My Lords, no.
Viscount Tonypandy: My Lords, they will be deciding if there is to be a late abortion.
Lord Ennals: My Lords, I was not seeking to ask the noble Viscount to give way but I am pleased that he did. Does he not believe that the parents have a role in this? It seems to me that the parents' role is essential. The doctor acts only in the light of the parents' wishes.
7.45 p.m.
Viscount Tonypandy: My Lords, I listened to the noble Baroness, Lady Warnock, with some dismay. We heard her say that the mother might say that she did not want the child. I happen to have other beliefs. Without being certain of the degree of disability, and

1097
whether that child will be able to contribute later, it is an enormous responsibility to say, "Thou shalt not live".
Viscount Caldecote: My Lords, we have heard criticisms of the amendment from two distinguished lawyers, the noble and learned Lord, Lord Brightman and my noble and learned friend Lord Hailsham. They have made cogent criticisms of the wording. It may not be the best, but are not their criticisms equally valid, as has been implied, in the case of the words "seriously handicapped" in the Commons amendment? In that case would it not be wise to take the advice of my noble friend Lord Elton, send it back to the Commons and say, "We do not think much of the wording of paragraph (d) in respect of 'seriously handicapped'. We believe our amendment indicates the kind of provision that should be enacted"? The whole matter could then be looked at again. If we were in Committee it could be reconsidered on Third Reading if the intention was agreed but the wording was not. I support my noble friend Lord Elton most strongly.
Lord Stoddart of Swindon: My Lords, like other noble Lords, I am not completely happy with the amendment, but I am even more worried about paragraph (d) in the Commons amendment. I want to emphasise that we are not talking about inanimate objects; we are talking about people. Paragraph (d) provides,
"that there is a substantial risk"
—not that there is certainty. That means that there is no certainty that the child will be born handicapped. Therefore we are saying that one need be only 80 per cent. certain that there is a risk of handicap and we will accept a 20 per cent. risk that the child will not be handicapped. The Commons amendment has not been properly thought out.
When we had the death penalty, a criminal could be certain that a jury would have to be 100 per cent. sure of his guilt before he would be executed. We are saying that vie need not be 100 per cent. certain when we terminate the life of an unborn child. It is upon that basis that I shall support the amendment.
I should like to make one further point. We define handicapped people. We talk about severely handicapped people. When we do so, we know what we are talking about. But what does the amendment say? It does not say, "physical or mental abnormalities as to be severely handicapped"; it merely says, "seriously handicapped". We must consider what "seriously" means. It is not an absolute definition; it is a matter of somebody's opinion. Since when have we terminated life on the basis of someone's opinion? For that reason I support the amendment moved by the noble Baroness.
Baroness Llewelyn-Davies of Hastoe: My Lords, before the noble Lord sits down perhaps I may tell him that "seriously" is a technical term used by doctors. In this case it is the decision of doctors whether the child would be sufficiently seriously or grossly or abnormally handicapped. The word "seriously" is not just a light word in that sense.
Lord Stoddart of Swindon: My Lords, I appreciate precisely what my noble friend says. However we are not talking about the opinions of doctors but the opinions of others; what it means to other people. I do not believe that doctors should have any more power over life or death than anyone else. If we give that power to anyone we need to be much more precise than the amendment. I thank my noble friend for her intervention.
The Earl of Erroll: My Lords, to a certain extent we sit here in cloud cuckoo land, pontificating about the wonderful life with all the love, care and attention that these handicapped children will receive. That is not so in the real world. Last year there were only 23 cases falling into the category covered by the amendment. I imagine that if the majority had been forced to be carried to completion or forced to be kept alive they would probably have been born to people from fairly deprived backgrounds who did not want them and could not handle and face the situation. It would then fall to the state and the carers to look after them.
Many are not in a state to be considered for adoption. Why are so many handicapped people in homes not adopted? We hear that hundreds of parents are waiting for them; but they are not adopting them. Either there is a problem in the adoption process or there is such a serious problem with these people or children that they cannot be adopted. There is a problem in the system. These children will not be born to happy, loving families and live a wonderful life. Let us have no illusions. We reckoned that we could not cope with a second such child. Perhaps we could have done. I do not know. But we did not wish to take the risk.
The Lord Chancellor: My Lords, a great deal has already been said and I do not wish to take up much time on the amendment. Questions have been put to me and I shall try to answer them.
As regards "seriously handicapped" in paragraph (d), we should read the whole of the paragraph. It says:
"that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped".
The same phraseology was used in the Abortion Act 1967. Section 1(1) (b) states:
"that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped".
It is not an absolute matter, as the noble Lord, Lord Stoddart, said. The authority under which a medical termination could be carried out is that two registered medical practitioners are of the opinion formed in good faith that there is a substantial risk. That must be the reality of the situation. It is surely impossible to take an absolutely certain view of these cases. It is a matter of opinion, and the requirement is that the opinion should be formed in good faith.
In speaking to Commons Amendment No. 20, I said that the Secretary of State had undertaken that regulations would be put in place under which the nature of the abnormality or handicap would be specified. I said that, subject to the difficulties of

1099
confidentiality, because the numbers are rather small, the Secretary of State would make public the results of the returns he would receive on this kind of termination after 24 weeks.
The noble Lord, Lord Elton, pointed out, when the amendment was criticised on the grounds of defective wording, that questions of definition arise on the main clause. That is true. But the phrase "seriously handicapped" appears in the context which has existed in Acts of Parliament since 1967. The only reason for the phrase being separated out in this way to form paragraph (d) is that the Commons took the view, in line with the view of the Select Committee of this House, that the heading should not be subject to the 24-week limit, for reasons which have already been explained.
The comment that the most reverend Primate the Archbishop of York made is that the point behind the amendment is deeper than the words. However, ultimately, somebody will have to formulate words. There is no amendment dealing with paragraph (d) or seeking to modify it. The only amendment we have to consider, with which your Lordships are invited either to be content or not content, is this amendment.
Among other things, the amendment has the effect of suggesting, indeed putting it beyond doubt if it were accepted, that substantial or serious handicap could exist and yet be compatible with life. That is a consequence of the amendment which may not be entirely in accordance with the thrust and spirit of the amendment. I cannot offer any definition of what is meant by the terms of the amendment. The word "reasonable" and what are reasonable steps is a matter of circumstances. If all else were in order, I feel certain that a jury could, if necessary, come to some conclusion on that.
As regards the onus of proof, in order to qualify under the new provisions of the clause if the amendment were passed, a doctor would have to show —if the child were capable of being born alive and the serious handicap was not incompatible with life—that he had taken all reasonable steps to preserve the life of the child. He would wish to have protection against the Offences Against the Person Act and also possibly against the Infant Life (Preservation) Act. These Acts are only disapplied—assuming subsection (4) to which we will come is left in the legislation—and the doctor is only exempt from possible prosecution under the other provisions if he has conformed with the abortion Acts. One of the terms with which he would have to conform is the taking of all reasonable steps.
I said in relation to the earlier amendment that my information was that doctors would be faced, in the circumstances in which they have to take a decision, with considerable difficulty in ascertaining into which category the fetus came—assuming that these categories were capable of application—and dealing with it. The point I made on the previous amendment does not apply here. There is no conflict in this case between the steps to preserve the life of the mother and the steps to preserve the life of the fetus.
1100
Again, the Government are entirely neutral. It is for your Lordships to form a view. The amendment is extremely important, but it may not be absolutely necessary on either side for the view to be taken that the other side does not respect human life or has no proper appreciation of what wonderful people the disabled can be. That is a concept that I hope all of us cherish. As has been said, many disabled people have marvellous relationships with others and have demonstrated, sometimes rather spectacularly, a marvellous ability to overcome their disabilities. They have shown themselves to be wonderful people in that. The noble Baroness, Lady Ryder of Warsaw, referred to one such person whom she and I met some time ago. That person was most seriously disabled and yet was still able to play a tremendous part in the life of the University of Cambridge. It is for noble Lords to make up their minds on this issue. No doubt noble Lords will receive some further guidance on the matter before doing so.
The Earl of Perth: My Lords,—
Noble Lords: Order!
8 p.m.
The Earl of Perth: My Lords, may I ask the noble and learned Lord the Lord Chancellor or the House whether a noble Lord may speak after the noble and learned Lord the Lord Chancellor has spoken? As far as I am aware, that is allowed, with the courtesy of the House.
The Lord Privy Seal (Lord Belstead): My Lords, I am afraid that, technically, the noble Earl is out of order. After the Government spokesman has replied, the Companion to the Standing Orders makes it clear that there should be no further speeches, except for the mover of the amendment who has the right of reply.
Baroness Cox: My Lords, once again I wish to express deep gratitude to all noble Lords who have contributed to this rather shorter debate. I express gratitude also to my noble and learned friend on the Woolsack for clarifying the situation. I confess that I accept that there is ambiguity in the term "incompatible with life". However, as my noble friend Lord Elton has said, there is a comparable ambiguity in the term "seriously handicapped" which is the term that appears in the Commons amendment.
I am extremely grateful to the most reverend Primate the Archbishop of York for emphasising that our amendment meets an important need and addresses some serious issues which are raised by the Commons amendment. Given the ambiguity of the term "seriously handicapped", our concern is that we should definitely and intentionally be tilting the balance in a direction which would protect the fetus which is diagnosed as having a handicap. It was suggested that we are doing wrong in that, but we believe we are acting correctly. If the Commons amendment is accepted as it stands, children who are capable of enjoying life and contributing to life in ways which have been so eloquently described by the noble Baroness, Lady Ryder, and other Members of your Lordships' House, would not survive to birth. That point was further powerfully emphasised by the

1101
noble Lord, Lord Stoddart of Swindon, who mentioned the potential dangers as regards the uncertainty of diagnosis during a pregnancy.
This is a matter of very great importance. I believe, perhaps particularly for the reasons given by the most reverend Primate the Archbishop of York, that an amendment is needed. Only your Lordships' House can judge whether another place should be asked to consider another amendment, but in my view we should take the view of this House on the matter of whether another place should be asked to consider refining its own wording.
8.3 p.m.
On Question, Whether Amendment No. 20B, as an amendment to Amendment No. 20, shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 101.

Division No. 2

CONTENTS

Ashbourne, L.

Masham of Ilton, B.

Boardman, L.

Mersey, V.

Braye, B.

Monckton of Brenchley, V.

Caldecote, V.

Murton of Lindisfarne, L.

Canterbury, Abp.

Nelson, E.

Chester, Bp.

Norfolk, D.

Clanwilliam, E.

Oxford and Asquith, E.

Clifford of Chudleigh, L.

Parmoor, L.

Coleraine, L.

Pearson of Rannoch, L.

Cork and Orrery, E.

Perth, E.

Cox, B [Teller.]

Petre, L.

Elles, B.

Pitt of Hampstead, L.

Elton, L.

Portsmouth, Bp.

Falkland, V.

Reading, M.

Gloucester, Bp.

Robertson of Oakridge, L.

Harvington, L.

Ryder of Warsaw, B.

Holderness, L.

St. John of Fawsley, L.

Hylton, L.

Savile, L.

Iddesleigh, E.

Sidmouth, V.

Kilbracken, L.

Stafford, L.

Lauderdale, E.

Stallard, L.

Liverpool, Bp.

Stoddart of Swindon, L.

Liverpool, E.

Swinfen, L.

London, Bp.

Tonypandy, V.

Longford, E.

Winchester, Bp.

Lothian, M.

York, Abp.

McColl of Dulwich, L. [Teller.]

NOT-CONTENTS

Addington, L.

Denham, L. [Teller.]

Ailesbury, M.

Derwent, L.

Allen of Abbeydale, L.

Diamond, L.

Ampthill, L.

Donoughue, L.

Ardwick, L.

Dormand of Easington, L.

Arran, E.

Elliot of Harwood, B.

Astor, V.

Ennals, L.

Attlee, E.

Errol, E.

Aylestone, L.

Ewart-Biggs, B.

Balfour, E.

Faversham, L.

Belstead, L.

Fisher of Rednal, B.

Blyth, L.

Glenarthur, L.

Boston of Faversham, L.

Graham of Edmonton, L.

Boyd-Carpenter, L.

Haden-Guest, L.

Brightman, L.

Hailsham of Saint

Brougham and Vaux, L.

Marylebone, L.

Butterworth, L.

Halsbury, E.

Carnegy of Lour, B.

Hankey, L.

Carnock, L.

Hanworth, V.

Cavendish of Furness, L.

Harris of Greenwich, L.

Cledwyn of Penrhos, L.

Hatch of Lusby, L.

Craigavon, V.

Henley, L.

Crook L.

Hives, L.

David, B.

Hooson, L.

Davidson, V. [Teller.]

Houghton of Sowerby, L.

1102

Howie of Troon, L.

Rea, L.

Hunter of Newington, L.

Reay, L.

Hylton-Foster, B.

Renton, L.

Jeger, B.

Richard, L.

Jenkins of Hillhead, L.

Rodney, L.

Jenkins of Putney, L.

Roskill, L.

Kilmarnock, L.

Russell, E.

Lawrence, L.

Seebohm, L.

Llewelyn-Davies of Hastoe, B.

Selborne, E.

Lloyd of Hampstead, L.

Selkirk, E.

Lockwood, B.

Serota, B.

Long, V.

Sherfield, L.

Meston, L.

Stedman, B.

Monkswell, L.

Strathmore and Kinghorne, E.

Monson, L.

Templeman, L.

Mountevans, L.

Thomas of Gwydir, L.

Mulley, L.

Thurlow, L.

Munster, E.

Trumpington, B.

Murray of Epping Forest, L.

Turner of Camden, B.

Nicol, B.

Vernon, L.

Northfield, L.

Warnock, B.

Oram, L.

White, B.

Peston, L.

Williams of Elvel, L.

Peyton of Yeovil, L.

Willis, L.

Platt of Writtle, B.

Winchilsea and Nottingham, E.

Prys-Davies, L.

Wise, L.

Resolved in the negative, and Amendment No. 20B disagreed to accordingly.

AS AN AMENDMENT TO COMMONS AMENDMENT NO. 20
20C Leave out subsection (4).
8.10 p.m.
Baroness Elles: My Lords, I beg to move Amendment No. 20C. We are in the rather curious position of having legislation concerning abortion in which the maximum time-limit is 28 weeks yet if Commons Amendment No. 20 is not amended as proposed in the amendment that I have tabled, which proposes the deletion of the reference to the Infant Life (Preservation) Act 1929, in a few weeks' time this country will have a law which will allow abortion freely up to term. As my noble friend the Duke of Norfolk said, it will be permitted until the severance of the umbilical cord.
That is a prospect which I and many of my colleagues do not view with equanimity. It does not accord with our view of the standing of family life in this country or our respect for the sanctity of human life. It would be regrettable if the Commons amendment were not amended. It would also mean that we had the most liberal legislation in Europe. Once again, there would be a flood of young women coming to this country for abortions, just as there was following the introduction of the Abortion Act in 1967. The only people who would gain would be the private abortion clinics. That would be a matter of great regret to me.
Although we have been debating the subject for many hours this evening, I feel that it is important that your Lordships should know what happened in another place when the vote took place on the amendments. Many parliamentarians said that they had not understood what had happened and there was great confusion. It may be helpful if I quote from the Commons Official Report for 24th April 1990. My right honourable friend the Secretary of State said (at col. 266) in his winding up speech:

1103
"If new clause 4 is passed, it is important to note the change that it will make to the law as it introduces time limits into the 1967 Act for the first time. Those new time limits for various purposes will exist alongside the Infant Life (Preservation) Act 1929, which will continue with the rebuttable presumptions either way, unless amended, at the 28-week stage".
From that statement it would be fair to assume that Members on all sides of the House could have believed that that part of the Abortion Act would remain within the new Bill. Not so, my Lords. Over the page, at col. 267 of the Official Report for 24th April 1990, my right honourable friend said:
"I hope that amendment (q) will be carried and that the Infant Life (Preservation) Act is not left standing alongside the Abortion Act. To have two sets of time limits would be confusing in practice. I therefore hope that there will be a single test, with the Infant Life (Preservation) Act applying only to non-Abortion Act cases".
I contend that that has caused a double confusion. From the first paragraph it seemed clear that the intention was to keep that particular reference in the new Bill. However, in the second paragraph my right honourable friend referred to the difficulty of having different time-limits—28 weeks for the Infant Life (Preservation) Act and 24 weeks in the new clause which we have debated this evening. However, as has already been said by my noble friend the Duke of Norfolk with reference to a conversation which he had with my noble and learned friend the Lord Chancellor, the only—and crucial—test in the Infant Life (Preservation) Act is that the child should be capable of being born alive. It is totally irrelevant whether the 28-weeks or the 24-weeks limit applies.
Therefore, it was not correct for my right honourable friend to say that it would have caused confusion if the reference to the Infant Life (Preservation) Act had been retained. I ask noble Lords not to take that argument into account when deciding whether to support the amendment.
Lord Ennals: My Lords, is the noble Baroness suggesting that her right honourable friend the Secretary of State for Health would welcome the amendment that she is now proposing?
Baroness Elles: No, my Lords. I thought I had made it clear that in col. 267 of the Official Report my right honourable friend said he hoped that the Infant Life (Preservation) Act was not left standing alongside the Abortion Act. He did not support its retention. I understand that many Members voted for the clause as it came before the other place without understanding that that element would be deleted. It was perfectly clear from the second part of my right honourable friend's speech that he was in favour of its being deleted.
Amendment No. 20C, by restoring to the Bill the reference to the Infant Life (Preservation) Act 1929, would preclude abortion but not termination of pregnancy after 24 weeks. The right reverend Prelate the Bishop of London made it clear that there is a distinction between termination of pregnancy on the one hand and abortion on the other. The fact that there is a 24-week limit for abortion does not prevent termination of pregnancy from the 24-week period to
1104
the full gestation period of 40 weeks. As Professor Ronald Taylor has said, the termination of pregnancy is not incompatible with saving the life of the child. That is a point which has not been stressed sufficiently in the debate this afternoon.
The effect of the amendment can be seen clearly if one takes the example of a viable fetus. All of us here were viable fetuses at one time, and we can be thankful that we were born before the Act became law because we had a chance of survival. Under the new law, without my amendment, a viable fetus has a one in four chance of being eliminated up to 24 weeks. The statistics show that in 1989 there were 180,000 abortions. It appears that in the first quarter of 1990 the figure has crept up. The figure I have given relates to a total of live births—which have been declining —of 650,000. Thus the viable fetus is probably not eliminated at that stage. What happens to it? If it survives, it may be severely handicapped. In the Bill it will probably be eliminated by an abortion because there will be nothing to stop that abortion taking place —only a termination of pregnancy, which in this case in the absence of my amendment it would not become. It would remain an abortion.
Secondly there is perhaps a more difficult point relating to paragraphs (b) and (c) of the subsection that we have been discussing. Again, there could be a termination of pregnancy for the reasons which we have gone over several times. However, it has perhaps not been stressed sufficiently that it will be up to the doctors concerned to decide whether the termination of pregnancy is a greater protection to the mother than otherwise; namely, the termination of pregnancy is more important than risking any grave physical or mental damage to the health of the mother. Again, that is another hurdle that the fetus has to overcome.
Finally, at the time of full term there is still nothing whatsoever in the Bill that would stop the fetus from being aborted. We have seen in the way in which the Abortion Act 1967 worked that it was considered that there were strict limitations on the way in which abortions should be carried out. The figures have escalated year after year. Undoubtedly that is what will happen if there is not a stopgap—something which makes a doctor try to save the life of the child as well as the life of the mother.
In the ILPA it is very clear that first of all the child has to be capable of being born alive. If it is not, there is no question but that there would be a termination of pregnancy and that would be an end of the matter. However, it also has to save the life of the mother, which is paramount. I am sure that everyone in this House will agree and it is universally accepted that saving the life of the mother is paramount. Thirdly, it has to be done in good faith by the doctor concerned.
All those conditions, which I believe should be put back into the Bill, would at least be a fallback position for the fetus which could have got practically to term but still have been eliminated and will no doubt be eliminated under this legislation if Commons Amendment No. 20 is accepted and goes back to the Commons as it stands.

1105
In conclusion, many noble Lords have given figures showing how few abortions there have been in serious cases beyond 24 weeks—only 23 or 24; I think someone mentioned 27. That is precisely because there is reference to the ILPA in Section 5(1) of the Abortion Act. If that reference were not there, there would have been far more late abortions. That reference prevents that happening. That is the fallback position.
Noble Lords have mentioned how few have been the number of cases and that is precisely because reference to that statute was made in the Abortion Act 1967. Indeed, it was mentioned in the 1986–87 report of the Select Committee on the Infant Life (Preservation) Act that a civil servant was asked, "Why do you think there are so few prosecutions under this Act and there have not been cases in excess of 28 weeks?" The senior civil servant from the Home Office replied, "Well of course it is because doctors do heed legislation; they seriously act in conformity with the law".
That is the main reason why I have put forward this amendment. I hope that it will be considered favourably by your Lordships.
Moved, That Amendment No. 20C, as an amendment to Commons Amendment No. 20, be agreed to.—(Baroness Elles.)
Viscount Craigavon: My Lords, I should like briefly to try to answer the last point made by the noble Baroness, Lady Elles. There has always been a part of the United Kingdom where the Infant Life (Preservation) Act did not run. The noble and learned Lord on the Woolsack will confirm that that is Scotland.
What happens in Scotland? For the past three years for which there are figures available there has been a base of about 10,000 abortions performed every year. For those years in Scotland the number of abortions after 24 weeks in 1986 was three; in 1987, it was two; and in 1988 one.
That was not done by the compulsion of law. It has been done by what those on my side of this debate are recommending should happen in the future: the good sense of the doctors combined with the guidance of the Department of Health would solve the problem. All the scare stories about abortion being available up to birth are complete fantastical imaginings.
8.30 p.m.
Lord Brightman: My Lords, the effect of this amendment would be to perpetuate in the Abortion Act the reference to the Infant Life (Preservation) Act, contrary to the unanimous recommendation of the Select Committee. The point is a little complicated and perhaps I may be forgiven if I say just a few words by way of preface.
The Infant Life (Preservation) Act was enacted in 1929. At that time abortions were illegal except to save the mother's life. A doctor who terminated a pregnancy for any other purpose was liable to prosecution under the Offences Against the Person Act 1861. However, the criminal judges in England had decided that no offence was committed under the
1106
1861 Act or under any other law if the child was killed after it had left the mother's womb or if it was still emerging from the mother's womb but had not a wholly independent existence. It was a lacuna which had been perceived by the English judges. The Infant Life (Preservation) Act was passed solely for the purpose of curing that anomaly.
When the Abortion Act 1967 was passed it contained no express maximum period for lawful terminations. So far as the main text of the Act was concerned, terminations up to birth were permissible. But the Abortion Act stated that nothing in that Act should affect the provisions of the Infant Life (Preservation) Act. That has always been construed as implying that terminations should not take place after 28 weeks, by which time there was, under the 1929 Act, a presumption that a child was capable of being born alive. Unlike the Abortion Act, the Commons amendment specifies the time limit for most terminations - 24 weeks. Therefore no longer is there any sensible place for the Infant Life (Preservation) Act in the Abortion Act. The Infant Life (Preservation) Act is.functus officio so far as concerns time limits.
Once one has an Abortion Act which specifies a time limit of 24 weeks for abortions, there is no room for an Act which implies a time limit of 28 weeks. One cannot sensibly have two time limits applying to the same category of abortion. If it is intended to apply a limit of 28 weeks, for example to paragraphs (b), (c) or (d) abortions, then those paragraphs ought to say so.
I have a second objection to the proposed amendment. It leaves a doctor under a possible criminal liability notwithstanding that he has performed a termination in strict accord with the terms of the Abortion Act. If he performs an abortion within the gestational limit imposed by the Act and in full accord with all its provisions, why should he be liable to criminal prosecution?
Thirdly, there is the odd, unsatisfactory wording of the 1929 Act. I refer to the difficulty of applying the test "capable of being born alive". It is in most cases, perhaps in all cases, impossible for a doctor contemplating a termination in the 23 to 28-week bracket to be certain in advance whether or not an unborn child—who is not already dead—is capable of being born alive.
Lastly, there is doubt as to the meaning of the expression "capable of being born alive". Perhaps I may read a short passage from the Select Committee's report. It states:
"As a matter of legal interpretation, this expression probably means capable of being brought into the world alive independently of the mother for a period however short, even a matter of minutes".
Since the report was made, there has been a judicial decision to that effect.
"The general opinion, however, among the medical profession and other persons concerned with the subject of abortion, is that 'capable of being born alive' means 'viable' in the sense of the capacity to survive for an appreciable period, which witnesses variously describe or wish to see defined as capable of 'sustained independent existence', 'being able to breathe at the time of birth so that long term survival

1107
is possible', 'not only the capability of being born alive but also viability (ie, the capability of sustaining life)' and 'capable of sustained survival'.
Those are all different interpretations that medical witnesses put to us in committee. The committee think that the majority of those concerned with the problem of interpretation probably equate "capable of being born alive" with "capable of sustained survival" for some period not precisely defined. Even the draftsman of the 1967 Act used the word "viable" to describe the effect of the 1929 Act in the Section 5 proviso.
In the face of all those objections, it seemed to the committee and it seems to me, that it is quite out of place to leave the Infant Life (Preservation) Act 1929 unnecessarily coupled to the Abortion Act 1967. I ask noble Lords not to agree to the proposed amendment.
Baroness Elles: My Lords, before the noble Lord sits down, will he confirm that paragraphs (b), (c), and (d) are not subject to any time limit and that therefore the doctor is free to perform any of those terminations of pregnancy up to the full time of gestation?
Lord Brightman: My Lords, the answer is, yes, but only in the exceptional circumstances laid down by those paragraphs: that is, to save the life of the mother, to save her being a permanent invalid, and to save her from having to bear to full term a child who is diagnosed as seriously handicapped.
Lord Clifford of Chudleigh: My Lords, we have listened to some interesting speeches with regard to life and much about death. I find them most interesting since I was seated next to my good and noble friend Lord Erroll, whose children have suffered. I had a child who was a cot death syndrome child. Thank God for the alertness of my good lady wife, otherwise the child would have died.
It is very interesting to listen to people in this Chamber who are living and well, talking about babies, or would-be babies and how inconvenient it is because they have a disability. It has been said, "Let us put them down. Let us get rid of them". I am sure that many noble Lords have heard that medical scientists and others feel that life in a fertilised human ovary is recognisable at 14 days. The Reverend Dr. Ford, an Australian, agrees with the figure of 14 days. He adds that there is a chance that the fetus is a human individual before that.
If one was a member of the Chinese race, the day that one was delivered from one's mother's womb would have been the day when one was nine months old. The Chinese believe that one starts one's life at conception. I concur with that belief. I consider that abortion—the destruction of a live fetus—is acceptable only when the mother's life is at risk. There has been reference to certain other cases where, from scans, it is obvious to the practitioners, the paediatricians and those who are more highly qualified than myself—I have spoken to Professor Peckham of Great Ormond Street Hospital—that where there is only one kidney or half a kidney or a large chest defect the child will certainly not survive. The child will be stillborn. In such circumstances I again condone an abortion.
1108
There are, too, strong arguments for those people who suffer rape. However, the female concerned must make the decision whether or not she wants to carry the child or whether she is willing to have the child adopted.
We have voted on the legal limits for aborting a fetus. Let us not fool ourselves. There are other cowboys who can offer the services whenever a pregnant female wishes to have an abortion. The services are available. One needs only to go into the Underground to see the telephone numbers on the wall. How many noble Lords go to the Underground?
We have heard reference to the drug RU486. It is available on prescription in France. One knows full well that drugs come into this country left, right and centre, and we condemn drug addiction. I do not say that it is absolutely wrong to use that drug but its use should be monitored. One should ask general practitioners whether they agree with that drug being introduced into this country.
Abortion is not to be regarded as a social convenience but as a serious step. It must be agreed by all the parties; the father, the mother and also medical advisers and, where sought, religious advisers. One must also consider the option of having the child adopted. In 1987 there were more than 7,000, adoptions, although I must admit that 56 per cent. were of illegitimate children. However, that gives one an idea of how many legitimate children were adopted. Please, let us bear one matter in mind: in the eyes of the majority, taking life is wrong.
Lord Robertson of Oakridge: My Lords, I had not intended to speak in the debate and I shall therefore be brief. I must point out to the noble and learned Lord, Lord Brightman, that subsection (1) (c) does not mention saving the life of the mother. It would allow an abortion if,
"the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated".
It does not quantify the degree of risk; therefore, the provision is open to a wide degree of interpretation. I agree with the noble Baroness, Lady Elles, that it would pave the way for abortion on demand up to full term.
Lord Hailsham of Saint Marylebone: My Lords, really, really, really! Not one word of the previous two speeches to which we have listened has had the smallest relevance to the amendment under discussion. My noble and learned friend Lord Brightman made a conclusive and absolutely convincing speech.
The Lord Chancellor: My Lords, the reasons given for deciding that the Infant Life (Preservation) Act should be uncoupled from the Abortion Act have been explained by my noble and learned friend Lord Brightman based on the Select Committee's report. The amendment proposed by my noble friend Lady Elles is intended to restore that coupling.
As my noble and learned friend said in answer to the noble Baroness, it is plain that if Commons Amendment No. 20 stands as it is there is no time limit as regards paragraphs (b), (c) and (d). One of the main

1109
purposes of Commons Amendment No. 20 is to provide within the abortion legislation a clear time limit for the abortions which are judged to be subject to that time limit.
The arguments are obvious. If one wishes to have a time limit of some kind after 24 weeks in order to cover paragraphs (b), (c) and (d) a provision along the lines of that in my noble friend's amendment will be appropriate. If, on the other hand, one is persuaded that if the termination qualifications are stated, that form of protection is appropriate presumably one will not vote for the amendment.
The matter is one entirely for your Lordships and there is a completely free vote. No doubt there will be some further advice before noble Lords are asked to decide.
Baroness Elles: My Lords, I thank all noble Lords and my noble and learned friend the Lord Chancellor for discussing the amendment. Many points have been made on both sides of the issue. I maintain that without the amendment and a limit of 28 weeks we shall see a vast increase in the number of abortions under the provisions of paragraphs (b), (c) and (d) —in particular (b) and (c)—as we did when the Abortion Act came into force in 1967.
Sadly I say: watch the statistics for 1991, 1992 and 1993. Perhaps some noble Lords will return to the issue and see that this Bill is a disaster for the moral standing of this country. It is also a disaster for the young people with whom we must work and contend in a climate that is not conducive to upholding the family and the value of human life. With those words I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor: My Lords, we have dealt with the issues relating to Commons Amendment No. 20 and therefore I now put the Question.
On Question, Motion agreed to.
8.45 p.m.

COMMONS AMENDMENT
26 Clause 42, page 24 line 19, after 'Act' insert—'(except section (Amendment of law relating to termination of pregnancy.))'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 26. I have already spoken to this amendment which is consequential.
Moved, That the House do agree with the Commons in their Amendment No. 26.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
1 Clause 1, page 1, line 16, leave out from 'in vitro' to second 'and' in line 17 and insert '(in their application to those where fertilisation is complete) are to those where fertilisation began outside the human body whether or not it was completed there'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. This is a technical amendment and follows the amendment which I moved to take account of a point that my noble friend Lady Elles
1110
wished to be covered in the Bill. She wanted control to go right to the earliest stage of the formation of the fetus and include the egg. In the amendment we make suitable drafting adjustments to take account of that in certain passages of the Bill where the full idea would not apply.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
2Clause 4, page 3, line 8, at end insert:
'(2A) No person shall place sperm and eggs in a woman in any circumstances specified in regulations except in pursuance of a licence.
(2B) Regulations made by virtue of subsection (2A) above may provide that, in relation to licences only to place sperm and eggs in a woman in such circumstances, sections 12 to 22 of this Act shall have effect with such modifications as may be specified in the regulations.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. I shall speak also to Amendments Nos. 7 and 21. The House will be aware that during the passage of the Bill a number of amendments were moved both here and in another place which, if accepted, would have had the effect of bringing the technique of GIFT—gamete intra fallopian transfer —within the ambit of the Bill. These amendments were defeated in this House and in Standing Committee in another place. The Government recognise the concerns of those such as Dame Mary Donaldson, the chairman of the Interim Licensing Authority, and the Maternity Alliance, who wish to see GIFT licensed by the statutory authority, but we are also aware that the Royal College of Obstetricians and Gynaecologists takes the opposite view.
In response to the debate in this House and in another place, the Government brought forward in another place a three-point package contained within Amendments Nos. 2, 7 and 21. I believe that this will recognise the concerns that have been expressed and hope that it will also be accepted by this House as a sensitive way of dealing with the matter.
The noble Lord, Lord Walton, earlier told the House, in anticipation of the amendments, that he supported them. The main effect of the amendments is to provide powers to bring GIFT within the licensing system if the Government consider that to become necessary in the future. Amendment No. 2 would provide that regulations could specify circumstances in which a person would be prohibited from placing sperm and eggs in a woman unless authorised to do so by a licence.
That regulation-making power could be used to bring the placing of sperm and eggs in a woman within the scope of the licensing system provided by the Bill. The regulations may provide that Clauses 12 to 22, which deal with conditions of licences, grant, revocation, variation and suspension of licences and appeals against the decisions of licence committees, would have effect with such modifications in respect of GIFT as may be specified in regulations. Regulations

1111
could therefore specify, for example, that a woman could not receive GIFT unless she has been given a suitable opportunity to receive proper counselling about the implications of being treated using the GIFT technique. Amendment No. 24, which I shall be dealing with later, will make those regulations subject to affirmative resolution.
The second effect of the package is that Amendment No. 21 would create an offence if regulations under Clause 4(2A) were made and any person placed sperm and eggs in a woman in any circumstances specifed in these regulations where he was not authorised to do so by a licence.
The third effect of the package relates to the code of practice which the authority is required by Clause 25 to maintain. The code will give guidance about the proper conduct of activities carried on under a licence. Amendment No. 7 would allow the authority to give guidance in its code of practice about the use of any technique involving the placing of sperm and eggs in a woman; whereby or not the technique was brought within the scope of the Bill by regulations. In other words, it may be possible to give guidance about the activities without going to the full length of regulating. If the guidance does not prove effective then the power to make regulations exists.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
3 Clause 13, page 6, line 46, after 'treatment' insert '(including the need of that child for a father)'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I shall speak also to Amendment No. 6. While in your Lordships' House the Bill was amended to provide that a woman should not be provided with treatment services unless account had been taken of the welfare of any child who may be born as a result of the treatment, and of any other child who may be affected by the birth. These amendments further provide that part of the consideration of the welfare of the child who may be born as a result of the treatment should be the need of that child for a father.
Those who supported this amendment in the other place consider that a family life where a child is brought up by both a father and a mother offers the child the best prospects. Professional people who will be required to make judgments about who is suitable for treatment will be guided by the code of practice of the new authority. The code of practice will include guidance on the welfare of the child.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(The Lord Chancellor.)
Question, Motion agreed to.

COMMONS AMENDMENTS
4 Clause 24, page 13, line 12, after 'recorded' insert 'and given to the Authority'.
5 Page 13, line 13, at end insert:
1112
'(2A) Directions may authorise, in such circumstances and subject to such conditions as may be specified in the directions, the keeping, by or on behalf of a person to whom a licence applies, of gametes or embryos in the course of their carriage to or from any premises.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 and 5 en bloc. The amendments are designed to clarify the authority's power to collect information from licence holders. They are very straightforward in nature.
Amendment No. 4 concerns the collection of information by the Human Fertilisation and Embryology Authority from centres licensed to carry out treatment services regulated by the Bill. The sort of information covered is about the people for whom treatment services are provided or about any child appearing to have been born as a result of licensed treatment. This type of information must be recorded for each of the matters in Clause 13(2)(a) to (e) of the Bill.
The amendment provides therefore that for every treatment licence issued, information must not only be recorded, but also be given to the authority, for each of the matters in Clause 13(2)(a) to (e).
Amendment No. 5 makes provision for the transfer of embryos and gametes from one place to another. For instance, it may be desired to use sperm which has been donated in one clinic at another clinic, or a woman who had stored embryos might move and wish to undergo further treatment at a different clinic nearer her new home. It is important that the transport arrangements should be covered.
Moved, That the House do agree with the Commons in their Amendments Nos. 4 and 5.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
6Clause 25, page 14, line 16, after 'services', insert '(including a child's need for a father)'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6. I spoke to this amendment when speaking to Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendment No. 6.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
7Clause 25, page 14, line 17, at end insert:
'(2) The code may also give guidance about the use of any technique involving the placing of sperm and eggs in a woman.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. I spoke to this amendment with Amendment No. 2.
Moved, That the House do agree with the Commons in their Amendment No. 7.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
8 Clause 28, page 16, line 10, leave out paragraph (a) and insert:
'(a) are to the parties to a marriage subsisting at that time, unless a judicial separation was then in force, but'.
9 Page 16, line 19, at end insert:
'(9) In subsection (7)(a) above, "judicial separation" includes a legal separation obtained in a country outside the British Islands and recognised in the United Kingdom.'.
10 Clause 29, page 16, line 33, leave out 'and' and insert 'to'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 8 to 10 en bloc.
When the Bill was last considered in your Lordships' House, the noble Lord, Lord Kilbracken, proposed an amendment to similar effect which I agreed to consider. The present amendment is the result of my deliberations. In brief, it provides that a man shall not, prima facie, be treated as the father of the child if there is a judicial separation. I shall be pleased to explain the technical details needed to achieve this through the amendment if any of your Lordships wish.
Moved, That the House do agree with the Commons in their Amendments Nos. 8 to 10.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
11 Clause 29, page 17, leave out line 1
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. I shall speak also to Amendments Nos. 27 and 31.
Clause 28(2) provides that if a married woman carries a child as a result of sperm, embryo or egg donation, then her husband is treated as the father of the child unless it is shown that he did not consent.
The effect of Amendment No. 31 will be to ensure that if the husband dies during a pregnancy brought about by one of the techniques regulated by the Bill, the mother will be eligible for widowed mother's allowance, just as she would have been if she had been carrying a child conceived naturally.
Mothers of AID children in England and Wales are already eligible for this allowance as a result of an amendment made to the Social Security Act 1975 by the Family Law Reform Act 1987. This amendment extends eligibility to those whose pregnancy resulted from other artificial techniques and has the effect of applying the provision to Scotland. The amendment makes similar provision for Northern Ireland.
Amendments Nos. 11 and 27 are drafting amendments, the only effect of which is to open up Schedule 4 to minor and consequential amendments such as the amendment to the social security Acts which are not, strictly speaking, about status.
Moved, That the House do agree with the Commons in their Amendment No. 11.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
12 After Clause 29, insert the following new clause:
Parental orders in favour of gamete donors
'(1) The court may make an order providing for a child to be treated in law as the child of the parties to a marriage (referred to in this section as "the husband" and "the wife") if—

(a) the child has been carried by a woman other than the wife as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b) the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo, and

(c) the conditions in subsections (2) to (7) below are satisfied.

(2) The husband and the wife must apply for the order within six months of the birth of the child or, in the case of a child born before the coming into force of this Act, within six months of such coming into force.
(3) At the time of the application and of the making of the order—

(a) the child's home must be with the husband and the wife, and

(b) the husband or the wife, or both of them, must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man.

(4) At the time of the making of the order both the husband and the wife must have attained the age of eighteen.
(5) The court must be satisfied that both the father of the child (including a person who is the father by virtue of section 28 of this Act), where he is not the husband, and the woman who carried the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(6) Subsection (5) above does not require the agreement of a person who cannot be found or is incapable of giving agreement and the agreement of the woman who carried the child is ineffective for the purposes of that subsection if given by her less than six weeks after the child's birth.
(7) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of—

(a) the making of the order,

(b) any agreement required by subsection (5) above,

(c) the handing over of the child to the husband and the wife, or

(d) the making of any arrangements with a view to the making of the order,

unless authorised by the court.
(8) For the purposes of an application under this section—

(a) in relation to England and Wales, section 92(7) to (10) of, and Part I of Schedule 11 to, the Children Act 1989 (jurisdiction of courts) shall apply for the purposes of this section to determine the meaning of "the court" as they apply for the purposes of that Act and proceedings on the application shall be "family proceedings" for the purposes of that Act,

(b) in relation to Scotland, "the court" means the Court of Session or the sheriff court of the sheriffdom within which the child is, and

(c) in relation to Northern Ireland, "the court" means the High Court or any county court within whose division the child is.

(9) Regulations may provide·

(a) for any provision of the enactments about adoption to have effect, with such modifications (if any) as may be specified in the regulations, in relation to

1115
orders under this section, and applications for such orders, as it has effect in relation to adoption, and applications for adoption orders, and

(b) for references in any enactment to adoption, an adopted child or an adoptive relationship to be read (respectively) as references to the effect of an order under this section, a child to whom such an order applies and a relationship arising by virtue of the enactments about adoption, as applied by the regulations, and for similar expressions in connection with adoption to be read accordingly,

and regulations may include such incidental or supplemental provision as appears to the Secretary of State necessary or desirable in consequence of any provision made by virtue of paragraph (a) or (b) above.
(10) In this section "the enactments about adoption" means the Adoption Act 1976, the Adoption (Scotland) Act 1978 and the Adoption (Northern Ireland) Order 1987.
(11) Subsection (1)(a) above applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. This is perhaps a more substantial amendment than some of the others with which I have been dealing.
The amendment was introduced in another place in response to an undertaking given in Committee by my right honourable and learned friend the Solicitor-General to address circumstances where a carrying mother wants the child to whom she has given birth to go to a married couple of whom one, or both, are the genetic parents of the child. I believe the amendment meets the concerns which have been expressed on this point during the passage of the Bill.
We are thinking here of a situation where a woman has agreed to carry a child for a wife who cannot carry, or perhaps cannot conceive, a child of her own. Such an arrangement may involve, for example, in vitro fertilisation, or artificial insemination with the sperm of the husband of a woman who is infertile. Sections 27 and 28 provide that the carrying mother, and her husband—if she has one, and if he cannot prove that he has not consented to the embryo transfer or the insemination—will be the child's legal mother and father. It would be quite wrong to interfere with or undermine that principle. However, we must face the fact that occasionally those who have become legal parents in this way have done so without any intention of accepting responsibility for the child once born. They may have intended (and may hold by the intention) to help another couple who are unable to have a child of their own. This couple may warmly wish to accept the child as their own. It seems to us that there must be some legal means available, including proper safeguards for the child, whereby courts can order a child be treated in law as the child of those who contributed the embryos or eggs or sperm which are placed in the carrying mother.
I should perhaps emphasise that in making that provision and in bringing it forward we do not intend in any way to condone or encourage surrogacy arrangements. That should be clearly understood.
1116
Commercial surrogacy is entirely prohibited, and all surrogacy arrangements are unenforceable. Clause 33 of the Bill confirms that.
Moved, That the House do agree with the Commons in their Amendment No. 120.—(The Lord Chancellor.)
9 p.m.
Lord Meston: My Lords, we should be grateful to the Government for dealing with this issue in this very carefully produced amendment. It meets a need in a few specific cases. It is consistent with the suggestions contained in the Warnock Report, and I therefore venture to suggest that it is consistent with common sense. The only question I ask the noble and learned Lord is whether and when regulations may be expected under the proposed new subsection (9).
The Lord Chancellor: My Lords, I am grateful for the welcome afforded to this clause. We carefully considered the matter. It was obvious that there was a problem. I am glad to hear the noble Lord say that it is a carefully considered clause. The provisions that we need to make will require to be consulted on in accordance with our usual open practice. I hope that by the autumn of 1991 the necessary regulations will be capable of being put in place.
On Question, Motion agreed to.

COMMONS AMENDMENTS
13Clause 30, page 17, line 33, at end insert:
'(4A) Regulations cannot require the Authority to give any information as to the identity of a person whose gametes have been used or from whom an embryo has been taken if a person to whom a licence applied was provided with the information at a time when the Authority could not have been required to give information of the kind in question.'.
14Clause 31, page 18, line 2, after 'man', insert 'is or'.
15 Page 18, line 6, leave out from 'disclose' to end of line 8 and insert
'whether any information on the register kept in pursuance of section 30 of this Act tends to show that the man may be the father of the child by virtue of section 28 of this Act and, if it does, disclose that information.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 to 15. With your Lordships' leave I shall move them en bloc.
The amendments concern access to information held by the authority. Amendments Nos. 14 and 15 were brought forward by the Government in another place. They make clear the intended scope of Clause 31, which deals with information which the authority is required to provide to the Registrar General. This is the information which, by Clause 30, the authority is required to keep on the register. It is intended that the information would be made available where there is a dispute over paternity. For example, a man who has been registered as the father of a child because he was married to the child's mother may deny being the father because he believes the child to have been born as a result of artificial insemination by donor to which he did not consent.
Clause 31 enables the Registrar General to find out whether the child might have been born as a result of

1117
treatment involving the use of donated gametes and embryos. These amendments extend Clause 31 to cover a case where a man who is not registered as the father of a child wishes to show that he is in fact the father—the other way round. The authority's register could show that he may be the father because he fulfils the condition in Clause 28.
Amendment No. 18, which is for your Lordships' consideration, provides for a logical progression from Clause 31 by allowing information of this kind to be made Available to a court in the interests of justice. This could he where, for example, there is a dispute about paternity and a woman is seeking to obtain a maintenance order for a child which might have been born as a result of treatment services regulated by the Bill. I hope that your Lordships will support these amendments.
I turn next to Amendment No. 13. The matters which Clause 30 of the Bill addresses are of the greatest importance and sensitivity, and I hope that the House will understand if I take a moment to explain the reasons this clause appears as presently drafted in the Bill.
Clause 30 requires the Human Fertilisation and Embryology Authority to keep information about donors and people to whom treatment services have been provided, and regulates circumstances under which information may be disclosed. If a person aged 18 or over applies to the authority, it must let the applicant know whether there is information on the register indicating that he or she was born following infertility treatment governed by the Bill. If that is the case, the authority must give the applicant certain information about his or her genetic parents which will be specified in regulations to be made by the Secretary of State. The intention is that the information given will tell the applicant something about the genetic parent, but not enough for him or her to be identified.
The Government have given considerable thought to the matter of the nature of information to be given to applicants. They have listened very carefully to all the views expressed, and there have been many. We remain of the view expressed in paragraph 83 of the White Paper, which says:
"all adults over the age of 18 should have a legal right to find out whether they were born following gamete or embryo donation and that those who were should have the right of access to certain non-identifying information about the donor to be prescribed in regulations".
That view supported by 43 per cent. of the respondents to the consultation document we issued. Only 23 per cent. thought the donor's name should be made available to the person born as a result of treatment. However, as paragraph 84 of the White Paper recognised, society's views on the issue may change. We said:
"Attitudes to the anonymity of donors, however, may well change over time as happened with adoption. The Government therefore proposes to keep the position under review."
That is why subsection (4)(a) of Clause 30 is drafted so that a person born as a result of donation may he given as much information relating to the person
1118
concerned as is required by regulations. If a future Parliament took the view that opinion generally had changed on the matter, regulations could specify that identifying information could be given to applicants. That arrangement gives a degree of flexibility. It allows for the legislation to reflect society's attitudes at the present time, and if these change over time.
Due to the very sensitive nature of the matter and the fact that strong opinions have been expressed on both sides, the Government have brought forward Amendment No. 24, which we shall come to later, which provides for any regulations under Clause 30 to be subject to affirmative rather than negative resolution. That will require both Houses to give the matter thorough debate before any regulations are made.
I am aware that there are strong feelings on this issue. These have been expressed very forcefully in debate both here and in another place. I know that there are some people, particularly those who work in the fields of social work and adoption, who take the view that a child should have the right to identifying information about his or her genetic parents, and particularly so since it is available to a third party; that is, the authority. They feel that there should be no secrecy surrounding the issue, and that it is important that children can know their true genetic identity in the interests of their personal development and mental health.
They draw an analogy with adoption. However, the policy in the Bill is based on the belief that there is a difference between children who are adopted and those born as a result of donation. The relationship between a child born as a result of donation and the donor is by its very nature less close than that between an adopted child and the natural parents. And although a child born as a result of donation may not share the genetic inheritance of the mother who carried him or her, in a very real sense that child is her flesh and blood.
With egg donation the donor may not even be aware that a child has resulted from her donation of an egg, and a similar situation exists when a man donates sperm. Particularly in the case of AID, there may also be the possibility that the child was in fact born as a result of normal sexual intercourse between its social parents.
Those who take the opposite view, that the anonymity of the donor should be protected by primary legislation, are concerned about the effect that identifying information would have on the number of people willing to be donors. They are also concerned that the Bill does not set out in primary legislation that identifying information will not be made available retro-actively. They fear the effect that this might have on the availability of donated gametes and therefore the availability of treatment. They maintain that potential donors may be deterred for fear that their identity might be disclosed at a later date and that that would inevitably lead to a diminishing service for infertile couples. They also fear that women wanting artificial insemination by donor may try to seek out "unofficial" treatment if there was

1119
a shortage of donated sperm or because they too wished donations to be anonymous. In those circumstances, the treatment might not be carried out under proper clinical supervision, the sperm might not be properly screened and they would be at risk of contracting a congenitally transmitted disease and there would be no opportunity for them to receive proper counselling.
When a provision was introduced in Sweden enabling children born following treatment involving donated gametes to have access to the identity of their genetic parents, donations of sperm fell sharply and I understand that some infertile Swedish couples now seek treatment in other countries where donor anonymity is protected. Recent studies suggest some change in attitudes and the category of donor has changed, mainly to older men who have completed their families. But I think that we shall need to wait for the situation to develop fully and settle down before any conclusions can be drawn definitively from the Swedish experience.
When the issue was debated at Report stage in another place a number of options were carefully considered. In the end, the House decided to accept an amendment moved by the honourable Member for Salisbury and supported by my right honourable friend the Secretary of State. This amendment reflected the views of those who felt that, if Parliament decided in the future to make identifying information about donors available to children born as a result of techniques involving donation who requested it, that information should not be made available retroactively. As I have tried to indicate, the arguments are finely balanced, but I hope that this House will feel able to agree with the Commons in this amendment.
Moved, That the House do agree with the Commons in their Amendments Nos. 13 to 15.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
16Clause 32, page 18, line 28, at end insert:

`(cc) in pursuance of an order of a court under section [Disclosure in interests of justice] or [Disclosure in interests of justice: congenital disabilities, etc] of this Act,'.

17 Clause 32, page 18, line 47, at end insert:

`(bb) so far as it identifies a person who, but for sections 27 to 29 of this Act, would or might be a parent of a person who instituted proceedings under section IA of the Congenital Disabilities (Civil Liability) Act 1976, but only for the purpose of defending such proceedings, or instituting connected proceedings for compensation against that parent.'.

18 After Clause 32, insert the following new clause:
Disclosure in interests of justice
`(1) Where in any proceedings before a court the question whether a person is or is not the parent of a child by virtue of sections 27 to 29 of this Act falls to be determined, the court may on the application of any party to the proceedings make an order requiring the Authority—
1120

(a) to disclose whether or not any information relevant to that question is contained in the register kept in pursuance of section 30 of this Act, and

(b) if it is, to disclose so much of it as is specified in the order,

but such an order may not require the Authority to disclose any information falling within section 30(2)(b) of this Act.
(2) The court must not make an order under subsection (1) above unless it is satisfied that the interests of justice require it to do so, taking into account—

(a) any representations made by any individual who may be affected by the disclosure, and

(b) the welfare of the child, if under 18 years old, and of any other person under that age who may be affected by the disclosure.

(3) If the proceedings before the court are civil proceedings, it—

(a) may direct that the whole or any part of the proceedings on the application for an order under subsection (2) above shall be heard in camera, and

(b) if it makes such an order, may then or later direct that the whole or any part of any later stage of the proceedings shall be heard in camera.

(4) An application for a direction under subsection (3) above shall be heard in camera unless the court otherwise directs.'.
19 After Clause 32, insert the following new clause:
Disclosure in interests of justice: congenital disabilities, etc.
`(1) Where for the purpose of instituting proceedings under section 1 of the Congenital Disabilities (Civil Liability) Act 1976 (civil liability to child born disabled) it is necessary to identify a person who would or might be the parent of a child but for sections 27 to 29 of this Act, the court may, on the application of the child, make an order requiring the Authority to disclose any information contained in the register kept in pursuance of section 30 of this Act identifying that person.
(2) Where, for the purposes of any action for damages in Scotland (including any such action which is likely to be brought) in which the damages claimed consist of or include damages or solatium in respect of personal injury (including any disease and any impairment of physical or mental condition), it is necessary to identify a person who would or might be the parent of a child but for sections 27 to 29 of this Act, the court may, on the application of any party to the action or, if the proceedings have not been commenced, the prospective pursuer, make an order requiring the Authority to disclose any information contained in the register kept in pursuance of section 30 of this Act identifying that person.
(3) Subsections (2) to (4) of section [Disclosure in interests of justice] of this Act apply for the purposes of this section as they apply for the purposes of that.
(4) After section 4(4) of the Congenital Disabilities (Civil Liability) Act 1976 there is inserted—
"(4A) In any case where a child carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination is born disabled, any reference in section 1 of this Act to a parent includes a reference to a person who would be a parent but for sections 27 to 29 of the Human Fertilisation and Embryology Act 1990.".'
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their

1121
Amendments Nos. 16 to 19. In moving these amendments, I shall speak also to Amendment No. 23.
Clause 30 of the Bill requires the Human Fertilisation and Embryology Authority, in exercising its regulatory function in respect of the provision of infertility treatment involving the donation of gametes or embryos, to keep a register of information about the provision of treatment services for any identifiable individual; the keeping or use of the gametes of any identifiable individual; and identifiable individuals who were or may have been born as a result of treatment services.
By virtue of Clause 32, it is an offence for the authority or one of its employees to disclose information held on that register except in limited circumstances. As drafted, the Bill would not enable a court to order disclosure of that information where it is needed in order to determine whether a person is, in law, treated as the parent of a child by virtue of Clauses 27 or 28. The new clause introduced by Amendment No. 18 provides the court with that power.
Before I explain why the new clause is needed, I would like to deal first with an important limitation on the power that it confers. Your Lordships will see that subsection (1) provides that only information relevant to the question whether or not a person is the parent should be disclosed and that such an order may not require the authority to disclose any information falling within Clause 30(2)(b) of the Bill. That sub-paragraph relates to information about the keeping or use of the gametes of any identifiable individual. The effect is that nothing in this new clause enables a court to order disclosure of information about donors.
There are various examples of cases in which a court may have to determine whether or not a person is, in law, the parent of a child. Perhaps the most obvious is an application for maintenance where paternity is disputed. Because a father, by virtue of Section 28, is not the genetic father, that parental relationship cannot be determined by using blood tests. That is one example which shows the need for such an order. The clause has in it the necessary safeguards for the provision of information to the court.
Amendment No. 16 and new clause 19 therefore provide that, for the purpose of Section 1 of the 1976 Act, the word "parent" includes the genetic parent and that, on the application of a child, the court may order the authority to disclose information held in the register identifying the donor, and that the authority commits no offence if it discloses that information in pursuance of the court order.
Amendment No. 17 provides that those defending such an action or seeking compensation from the genetic parent of the child in connected proceedings must be allowed to disclose identifying information about that genetic parent for those purposes only.
1122
Moved, That the House do agree with the Commons in their Amendments Nos. 16 to 19.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
21 Clause 37, page 21, line 27, after 'Ace insert:

`(bb) contravenes section 4(2A) of this Act,'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 21. I spoke to this amendment with Amendment No. 2.
Moved, That the House do agree with the Commons in their Amendment No 21.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
22 Before Clause 39, insert the following new clause:
Keeping and examining gametes and embryos in connection with crime, etc
.—(1) Regulations may provide—

(a) for the keeping and examination of gametes or embryos, in such mannner and on such conditions (if any) as may be specified in regulations, in connection with the investigation of, or proceedings for an offence (wherever committed), or

(b) for the storage of gametes, in such manner and on such conditions (if any) as may be specified in regulations, where they are to be used only for such purposes, other than treatment services, as may be specified in regulations.

(2) Nothing in this Act makes unlawful the keeping or examination of any gametes or embryos in pursuance of regulations made by virtue of this section.
(3) In this section "examination" includes use for the purposes of any test.'.
9.15 p.m.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22. Clause 3 of the Bill prohibits the keeping or use of an embryo except under licence, and Clause 4 prohibits the storage of any gametes except under licence. This new clause gives the Secretary of State the power to make regulations prescribing purposes for which it would not be unlawful for the police, for example, to keep an embryo or store gametes for forensic purposes, without holding a licence.
It would be unnecessary and unduly bureaucratic if every police station in the country had to apply for a licence to store sperm in connection with criminal investigations—for example, rape—or indeed to carry out investigations in connection with the enforcement of the Bill. A similar regulation-making power could also be used, in very specific circumstances, to exempt establishments where gametes are stored for other purposes. This power would not extend to the storing of embryos.
Moved, That the House do agree with the Commons in their Amendment No. 22.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
23 Before Clause 39, insert the following new clause:
Civil liability to child with disability
.—(1) After section 1 of the Congenital Disabilities (Civil Liability) Act 1976 (civil liability to child born disabled) there is inserted—
"Extension of section 1 to cover infertility treatments.
1A.—(1) In any case where—

(a) a child carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination is born disabled,

(b) the disability results from an act or omission in the course of the selection, or the keeping or use outside the body, of the embryo carried by her or of the gametes used to bring about the creation of the embryo, and

(c) a person is under this section answerable to the child in respect of the act or omission,

the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.
(2) Subject to subsection (3) below and the applied provisions of section 1 of this Act, a person (here referred to as "the defendant") is answerable to the child if he was liable in tort to one or both of the parents (here referred to as "the parent or parents concerned") or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent or parents concerned suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.
(3) The defendant is not under this section answerable to the child if at the time the embryo, or the sperm and eggs, are placed in the woman or the time of her insemination (as the case may be) either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk Created by the act or omission).
(4) Subsections (5) to (7) of section 1 of this Act apply for the purposes of this section as they apply for the purposes of that but as if references to the parent or the parent affected were references to the parent or parents concerned."
(2) In section 4 of that Act (intepretation, etc)—

(a) at the end of subsection (2) there is inserted

"and references to embryos shall be construed in accordance with section 1 of the Human Fertilisation and Embryology Act 1990",

(b) in subsection (3), after "section 1" there is inserted "1A", and

(c) in subsection (4), for "either" there is substituted "any".'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 23. I spoke to this amendment with Amendment No. 16.
Moved, That the House do agree with the Commons in their Amendment No. 23.—(The Lord Chancellor.)
Lord Prys-Davies: My Lords, when I read the report of the discussion in another place it appeared to me that worries had been expressed about this new clause, and in particular about subsection (3). As I understand it, the effect of the clause, including subsection (3), is to ensure that the legal rights of a disabled child born as a result of an IVF pregnancy will be precisely the same as those of a child born after natural pregnancy. Can the noble and learned Lord confirm that interpretation?
The Lord Chancellor: My Lords, this subsection mirrors Section 1(4) of the 1976 Act. The new clause also applies the provisions of subsection (6) of Section 1 of the 1976 Act. That subsection preserves the defendant's right to rely on exclusion of his liability by contract with a parent. In practice, however, the Unfair Contract Terms Act 1977 severely restricts the scope of this defence. A person cannot by any contract, term or notice exclude or restrict his liability for death or personal injury resulting from negligence to any person.
If I understood the noble Lord's question correctly, subsection (3) has the same effect in relation to this kind of child as for a child born naturally.
Lord Prys-Davies: My Lords, I am grateful to the noble and learned Lord for that explanation. I am sure that it will reassure all those who have expressed concern about the subsection.
The Lord Chancellor: My Lords, I am grateful to the noble Lord. If I find any reason to qualify what I have said I shall certainly write to him. But I think my answer was correct.
On Question, Motion agreed to.

COMMONS AMENDMENTS
24 Clause 39, page 23, line 8, leave out 'or 4(2)' and insert '4(2) or (2A), (Parental orders in favour of gamete donors), 30(4)(a), or (Keeping and examining gametes and embryos in connection with crime, etc.)'.
25 Page 23, line 8, leave out second '(3)'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 24 and 25.
Amendments Nos. 24 and 25 are government amendments which add to the list of regulation-making powers which will be subject to affirmative resolution by both Houses of Parliament. Amendment No. 24 refers to four regulation-making powers. The first concerns Amendment No. 2, the amendment relating to GIFT. The second adds regulation-making powers in connection with Amendment No. 12, which is the new clause on surrogacy arrangements. The third follows Clause 30(4) (a), which provides a regulation-making power to deal with the information to be given on request to an applicant by the authority. The fourth follows from Amendment No. 22, the new clause about keeping and examining gametes and embryos in connection with crime and for other closely specified purposes.
Amendment No. 25 concerns regulations in respect of additional purposes for which research licences can be issued, and it is allied to Amendment No. 29. With the leave of the House, I shall move Amendments Nos. 24 and 25 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 24 and 25 en bloc.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
27Clause 43, page 24, line 37, at end insert:
'(4A) Schedule 4 to this Act (which makes minor and consequential amendments) shall have effect.'.
The Lord Chancellor: My Lords, I have already spoken to this amendment with Amendment No. 11. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 27.— (The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
28 Clause 43, page 25, line 5, leave out subsection (7).
The Lord Chancellor: My Lords, I beg to move that the House to agree with the Commons in their Amendment No. 28.
Your Lordships will remember that Clause 43(7) was a privilege amendment made while the Bill was passing through this House in its earlier stages to avoid infringing the privilege of the other place to control charges on public funds. The Bill has now been considered in the other place where the privilege amendment was removed.
Moved, That the House do agree with the Commons in their Amendment No. 28.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
29 Schedule 2, page 29, line 44, leave out from 'or' to 'such' in line 45 and insert 'for such other purposes as may be specifies in regulations.
(2A) Purposes may only be so specified with a view to the authorisation of projects of research which increase knowledge about the creation and development of embryos, or about disease, or enable'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 29. Amendment 29 would have the effect of removing from the authority the general power the Bill currently gives the authority to grant research licences for purposes which are not specifically mentioned in Schedule 2, paragraph 3(2)(a) to (e). It would replace it by a regulation-making power which enabled the Secretary of State to make regulations specifying additional purposes for which the authority could grant research licences provided that those purposes related to research project; which increase knowledge about the creation and development of embryos or about disease, or enable such knowledge to be applied.
Moved, That the House do agree with the Commons in their Amendment No. 29.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
30 Schedule 3, page 32, line 8, at end insert:
`(4) Any consent required by this paragraph is in addition to any consent that may be required by paragraph 5 above.'.
The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30.
This is a drafting amendment. Schedule 3 of the Bill provides that a person's consent is required before his gametes are used for the treatment of others. It also provides that the consent of each donor is required before an embryo is created in vitro, to the use for
1126
which the embryo is intended. Their consent is also required to the actual use of the embryo for that purpose. This amendment provides, lest there be any ambiguity, that the required consent to in vitro fertilisation and the subsequent use of the embryo is in addition to, and not an alternative to, consent to the use of the gametes.
Moved, That the House do agree with the Commons in their Amendment No. 30.·(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
31Schedule 4, page 32, line 35, at end insert:
'Social Security Act 1975 (c. 14)
1A. In section 25(1) of the Social Security Act 1975 (widowed mother's allowance), for the words from "or" after paragraph (b) to the end there is substituted "or

(c) if the woman and her late husband were residing together immediately before the time of his death, the woman is pregnant as the result of being artificially inseminated before that time with the semen of some person other than her husband, or as the result of the placing in her before that time of an embryo, of an egg in the process of fertilisation, or of sperm and eggs."

Social Security (Northern Ireland) Act 1975 (c.15)
1B. In section 25(1) of the Social Security (Northern Ireland) Act 1975 (widowed mother's allowance), at the end there is inserted "or

(c) if the woman and her late husband were residing together immediately before the time of his death, the woman is pregnant as the result of being artificially inseminated before that time with the semen of some person other than her husband, or as the result of the placing in her before that time of an embryo, of an egg in the process of fertilisation, or of sperm and eggs.".'.

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 31.
I have spoken to this amendment with Amendment No. 11. I am very glad to say that this is the conclusion of our consideration of the Commons Amendments. I particularly appreciate the company of those of your Lordships who have kindly stayed to this stage of the proceedings.
Moved, That the House do agree with the Commons in their Amendment No. 31.—(The Lord Chancellor.)
On Question, Motion agreed to.

Law Reform (Miscellaneous provisions) (Scotland) Bill [H.L.]
Returned from the Commons agreed to with amendments; and with a privilege amendment.

Heathrow Express Railway Bill [H.L.]
A Message was brought from the Commons, That they have made the following Orders.
That the Promoters of the Heathrow Express Railway Bill [H.L.] shall have leave to suspend proceedings thereon in order to proceed with the Bill, if they think fit, in the next Session of Parliament, provided that the Agents for the Bill give notice to the Clerks in the Private Bill Office of their intention to

1127
suspend further proceedings not later than the day before the close of the present Session and that all Fees due on the Bill up to that date be paid;
That if the Bill is brought from the Lords in the next Session, the Agents for the Bill shall deposit in the Private Bill Office a declaration signed by them stating that the Bill is the same, in every respect, as the Bill which was brought from the Lords in the present Session;
That as soon as a certificate by one of the Clerks in the Private Bill Office, that such a declaration has been so deposited, has been laid upon the Table of the House, the Bill shall be deemed to have been read the first time and shall be ordered to be read a second time;
That the Petitions against the Bill presented in the present Session which stand referred to the Committee on the Bill shall stand referred to the Committee on the Bill in the next Session;
That no Petitioners shall be heard before the Committee on the Bill, unless their Petition has been presented within the time limited within the present Session or deposited pursuant to paragraph (b) of Standing Order 126 relating to Private Business;
That, in relation to the Bill, Standing Order 127 relating to Private Business shall have effect as if the words "under Standing Order 126 (Reference to committee of petitions against Bill)" were omitted;
That no further Fees shall be charged in respect of any proceedings on the Bill in respect of which Fees have already been incurred during the present Session;
That these Orders be Standing Orders of the House.

Cardiff Bay Barrage Bill [H.L.]
A Message was brought from the Commons, That they have made the following Orders.
That the Promoters of the Cardiff Bay Barrage Bill [H.L.] shall have leave to suspend proceedings thereon in order to proceed with the Bill, if they think fit, in the next Session of Parliament, provided that the Agents for the Bill give notice to the Clerks in the Private Bill Office of their intention to suspend further proceedings not later than the day before the close of the present Session and that all Fees due on the Bill up to that date be paid;
That, if the Bill is brought from the Lords in the next Session, the Agents for the Bill shall deposit in the Private Bill Office a declaration signed by them, stating that the Bill is the same, in every respect, as the Bill which was brought from the Lords in the present Session;
That as soon as a certificate by one of the Clerks in the Private Bill Office, that such a declaration has been so deposited, has been laid upon the Table of the House, the Bill shall be read the first and second time and committed (and shall be recorded in the Journal of this House as having been so read and committed) and shall be committed to the Chairman of Ways and Means, who shall make such Amendments thereto as have been made by the Committee in the present
1128
Session, and shall report the Bill as amended in the House forthwith, and the Bill, so amended, shall be ordered to lie upon the Table;
That no further Fees shall be charged in respect of any proceedings on the Bill in respect of which Fees have already been incurred during the present Session;
That these Orders be Standing Orders of the House.

Smith Kline & French Laboratories, Australia, and Menley & James, Australia Bill [H.L.]
A message was brought from the Commons, That they have made the following Orders.
That the Promoters of the Smith Kline & French Laboratories, Australia, and Menley & James, Australia Bill [H.L.] shall have leave to suspend further proceedings thereon in order to proceed with the Bill, if they think fit, in the next Session of Parliament, provided that the Agents for the Bill give notice to the Clerks in the Private Bill Office of their intention to suspend further proceedings not later than the day before the close of the present Session and that all Fees due on the Bill up to that date be paid;
That if the Bill is brought from the Lords in the next Session, the Agents for the Bill shall deposit in the Private Bill Office a declaration signed by them, stating that the Bill is the same, in every respect, as the Bill which was brought from the Lords in the present Session;
That as soon as a certificate by one of the Clerks in the Private Bill Office, that such a declaration has been so deposited, has been laid upon the Table of the House, the Bill shall be read the first and second time and committed (and shall be recorded in the Journal of this House as having been so read and committed);
That no Petitions against the Bill having been presented within the time limited within the present Session, no Petitioners shall be heard before any Committee on the Bill save those who complain of any amendment as proposed in the filled up Bill or of any matters which arise during the progress of the Bill before the Committee;
That no further Fees shall be charged in respect of any proceedings on the Bill in respect of which Fees have already been incurred during the present Session;
That these Orders be Standing Orders of the House.

British Railways (No. 2) Bill
A Message was brought from the Commons, That they have made the following Orders to which they desire the concurrence of this House.
That the Promoters of the British Railways (No. 2) Bill shall have leave to suspend proceedings thereon in order to proceed with the Bill, if they think fit, in the next Session of Parliament, provided that the Agents for the Bill give notice to the Clerks in the Private Bill Office not later than the day before the close of the

1129
present Session of their intention to suspend further proceedings and that all Fees due on the Bill up to that date be paid;
That on the fifth day on which the House sits in the next Session the Bill shall be presented to the House;
That there shall be deposited with the Bill a declaration signed by the Agents for the Bill, stating that the Bill is the same, in every respect, as the Bill at the last stage of its proceedings in this House in the present Session;
That the Bill shall be laid upon the Table of the House by one of the Clerks in the Private Bill Office on the next meeting of the House after the day on which the Bill has been presented and, when so laid, shall be read the first and second time (and shall be recorded in the Journal of this House as having been so read) and, having been amended by the Committee in the present Session, shall be ordered to lie upon the Table;
That no further fees shall be charged in respect of any proceedings on the Bill in respect of which fees have a ready been incurred during the present Session;
That these Orders be Standing Orders of the House.

London Docklands Railway Bill
A Message was brought from the Commons, That they have made the following Orders to which they desire the concurrence of this House.
That the Promoters of the London Docklands Railway Bill shall have leave to suspend proceedings
1130
thereon in order to proceed with the Bill, if they think fit, in the next Session of Parliament, provided that the Agents for the Bill give notice to the Clerks in the Private Bill Office not later than the day before the close of the present Session of their intention to suspend further proceedings and that all Fees due on the Bill up to that date be paid;
That on the fifth day on which the House sits in the next Session the Bill shall be presented to the House;
That there shall be deposited with the Bill a declaration signed by the Agents for the Bill, stating that the Bill is the same, in every respect, as the Bill at the last stage of its proceedings in this House in the present Session;
That the Bill shall be laid upon the Table of the House by one of the Clerks in the Private Bill Office on the next meeting of the House after the day on which the Bill has been presented and, when so laid, shall be read the first and second time (and shall be recorded in the Journal of this House as having been so read) and, having been amended by the Committee in the present Session, shall be ordered to lie upon the Table;
That no further Fees shall be charged in respect of any proceedings on the Bill in respect of which Fees have already been incurred during the present Session;
That these Orders be Standing Orders of the House.
House adjourned at twenty-five minutes past nine o'clock.