HL Deb 18 October 1990 vol 522 cc1102-9

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: 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 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.

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 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 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.

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 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.