HL Deb 18 October 1990 vol 522 cc1087-102

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 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 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


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 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 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 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 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 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 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 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.

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


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 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
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.]
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.
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.