HL Deb 18 October 1990 vol 522 cc1036-43

20 After Clause 33, insert the following new clause:

Amendment of law relating to termination of pregnancy.

(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—

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

(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—

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 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 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 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 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 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 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.)