Abortion

HL Deb 16 March 2004 vol 659 cc215-30

8.15 p.m.

Lord Alton of Liverpool rose to ask Her Majesty's Government whether they will review the provisions in statute that permit conditions such as cleft palate and cleft lip to be regarded as "serious handicaps" for the purposes of terminating the lives of the unborn after 24 weeks' gestation.

The noble Lord said: My Lords, I am grateful for the opportunity to raise the issue this evening in this short debate. I am grateful to those members of your Lordships' House who are to participate in the debate; and I am especially grateful to the most reverend Primate, who is here for our proceedings.

In 1967, Parliament decided that a pregnancy could be terminated by a registered medical practitioner if two registered medical practitioners were of the opinion, formed in good faith, that there was a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Subsequently, in 1990, Parliament decided to extend that provision, authorising abortion up to and even during birth on those who would otherwise he born with serious disabilities. In almost every other instance, the legal time limit for abortion is 24 weeks. I recall that debate well, having spoken strongly in another place against what I believed to be a discriminatory provision. Tonight's debate provides an important opportunity to highlight the fact that many conditions that are not serious handicaps and were not intended to be covered by the 1990 amendment to Section 1(1)(d) of the Abortion Act are now being used to justify abortions.

Disability rights groups, such as the Disability Rights Commission and Disability Awareness in Action, are extremely concerned about the application of Section 1(1)(d) and the way it reinforces discrimination against people with disabilities. These are its words: The Section is offensive to many people; it reinforces negative stereotypes of disability and there is substantial support for the view that to permit terminations at any point during a pregnancy on the ground of risk of disability, while time limits apply to other grounds set out in the Abortion Act, is incompatible with valuing disability and non-disability equally". I recognise the Government's commitment to eradicating discrimination against people with disability and especially welcome the draft Disability Discrimination Bill. But there really is not much point in insisting on loop systems or ramps for public buildings if the law is to be used to deny a disabled person the right to life itself—and specifically to treat disabled people in statute differently from the able-bodied. I hope that when the Minister replies, he will tell us whether the Government intend to use the opportunity of the draft Disability Discrimination Bill to address the concerns of the Disability Awareness in Action group and the Disability Rights Commission—and, indeed, to eradicate eugenic abortion.

In the years 1968 to 2001 inclusive, 4.56 million reported abortions were performed on residents of England and Wales. Of those, 63,897, or 1.4 per cent, were performed under Section 1(1)(d)—cases in which there was a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. As the Government acknowledged in a Written Answer in the other place on 30 January this year, the term "seriously handicapped" has not been interpreted by any court decisions.

Since 1990, when the law was amended to allow post 24-week gestation abortions for disability, the number of abortions performed under Section 1(1)(d), as amended, has increased substantially. In 1990, there were a total of more than 1,601 such abortions; 21 after the 24 weeks' gestation. In 1995, those figures had increased to 1,828; 63 after 24 weeks' gestation. In 2002, a total of 1,863 abortions were performed for disability, of which 110 were after 24 weeks' gestation. So there has been an inexorable rise.

A closer analysis of those disturbing figures proffers further cause for concern. The annual abortion statistics include a table setting out the various conditions for which abortions under Section 1(1)(d) have been performed. Looking at the 2002 statistics, I was shocked by the vague nature of the classification. For example, in 2002, 83 abortions were performed for "other malformations of the brain", 19 of which were performed after 24-weeks gestation. Four abortions were performed for "eye, ear, face and neck" malformations. Thirteen post-24-week abortions were performed for "malformations of the cardiovascular system", whatever that may mean. Nineteen abortions were performed for malformations of "the respiratory system"—again, extremely vague—four of which were after 23 weeks' gestation. I could go on.

This vague classification is simply not good enough. When unborn lives are terminated for disability, the least that we should expect is a proper explanation of why. Do the Government have any plans to oblige doctors performing abortions under Section 1(1)(d) accurately to state the nature of this "serious" disability?

This is an issue to which I am returning. In 1990, in another place, I moved an amendment to require the nature of the disability to be stated on the green form. That was defeated on the casting vote of the Speaker of the House because he had to uphold the status quo, that being the tradition in the other place. I believe that it is now timely to return to this issue, given the experience in the mean time.

The number of post-24-week gestation abortions for disability has risen exponentially since 1990. As it is now generally acknowledged that after 24 weeks the unborn child is sentient and, if born prematurely, viable, one wonders whether the growing practice of post-24-week gestation abortion for disability is contrary to Article 2 (the right to life) and Article 3 (the right not to be subject to inhuman and degrading treatment) of the European Convention on Human Rights, which the Government have properly incorporated into UK statute. I hope that the Minister will set out what advice the Government have received on that point.

Since 1996, the Royal College of Obstetricians and Gynaecologists (RCOG) has published guidelines on the termination of pregnancy for foetal abnormality. According to the RCOG, a person is to be regarded as seriously handicapped only if he needs the support described in points 3 and 4 of the World Health Organisation's scale of the severity of disability. Point 3 refers to "assisted performance"; that is, the need for a helping hand. Point 4 refers to "dependent performance"; that is complete dependence on the presence of another person.

How can it be said that those unborn children with, say. Down's Syndrome, of whom six were aborted at post-24-weeks gestation in 2002, or those children with malformations of the "eye, ear, face and neck", fall within the RCOG's and the WHO's definition of "seriously handicapped"? In the case of Re B (A minor) (Wardship: Medical Treatment) [1981], the courts held that it would be unlawful to withhold treatment to remove an intestinal blockage from a child with Down's because there was no evidence that it was in the child's best interests to die. If the courts regard the Down's child once born as not falling within the WHO's definition of disability, surely the same logic should apply to the Down's child in the womb.

According to the RCOG, one factor to be considered in assessing whether the unborn child would be seriously handicapped is the remediability of the condition. So how is it that over the past six years, 26 babies have been aborted because of suspected cleft lip or cleft palate, one after 24-weeks' gestation?

In its own guidelines, the RCOG states that when certifying that there is a "substantial risk" of "serious handicap", medical practitioners, should bear in mind that the risk should also be likely to be considered substantial by informed persons with no personal involvement in the pregnancy and its outcome". Note the use of the word "informed".

Having spoken to medical practitioners, I understand that current medical practice is such that obstetricians and gynaecologists do not refer to specialists in the condition from which that child suffers. It is therefore doubtful whether they can obtain an accurate view about whether the child has a serious handicap in any event. For example, when faced with a possible diagnosis of cleft palate, how many obstetricians and gynaecologists call in a specialist in cleft palate for an opinion about its severity? Perhaps the Minister will tell us today or, at least, promise to find out.

The terms cleft lip and cleft palate are used interchangeably, including in the abortion statistics, but of course there is some difference. They are not life threatening conditions. Many noble Lords know people with a cleft palate. I have a teenage godson with that condition. It would be absurd to argue that someone like him should have been denied the right to life.

In June 1990, when the other place was considering extending the Abortion Act to allow abortion up to and including birth, my colleagues and I received a legal opinion from Professor John Finnis and Professor John Keown, both of whom at the time were at Oxford University.

Both Professor Finnis and Professor Keown warned that the proposed legislation would lead to abortion until birth in a disturbingly wide range of cases and that, some doctors will interpret the onerous conditions that apply to them as including a hare lip or a cleft palate". I was accused at the time of being irresponsible for suggesting that would happen. The evidence now demonstrates that it has happened and is a reality.

We need to look at this issue again. I am glad to say that I am not alone in holding that view. I refer your Lordships to Early Day Motion 186 in another place signed now by 54 Members of the House of Commons—from the Labour Party, the Conservative Party, the Liberal Democrats, the Ulster Unionists, the DUP and Plaid Cymru. That is an extraordinary range of people, which also includes Dr Jenny Tonge, Dr Vincent Cable—with whom I would not agree on these particular issues—and, yes, people like Miss Ann Widdecombe and Kevin McNamara, but also Gerald Kaufman and a range of people who would certainly not normally take what might be regarded as a so-called pro-life position.

So I think that there is a mood in the country, questioning why it is that in these specific circumstances we are permitting abortion up to and even during birth on a child with very minor abnormalities and disabilities. It is time that we looked at these questions again, and I am grateful for the opportunity this evening of being able to raise this question in your Lordships' House.

8.26 p.m.

Baroness Masham of Ilton

My Lords, I thank my noble friend Lord Alton of Liverpool for bringing this very alarming matter to the notice of your Lordships today.

I must admit at the start that I find abortion at any time and for anyone, especially the most vulnerable, a very disturbing situation. But today we are speaking of a more specific situation and of the law. It seems that there is no definition in law of the term "serious handicap". While the situation means that doctors can and do abort on the grounds of any condition, to press for a definition of the term "serious handicap" would in effect be to sign the death warrants of those babies who fall within the definition; for instance, many with Down's syndrome or spina bifida.

Many disabled people are painfully aware that in this country doctors can abort on grounds of "serious handicap" at any time up until birth. This situation is one which clearly discriminates on the grounds of physical or mental ability. The Disability Discrimination Act came into force in 1999, and yet discrimination on eugenic grounds— making a pure and perfect human race"— has got worse. I do not think that many of the public realise that disabled babies can be terminated after 24 weeks and up to full term. After all, 24 weeks is almost six months.

One of my secretaries was born with a cleft palate. She was operated on. She is a splendid girl, full of vigour, and enjoys life to the full. I am sure that many of your Lordships know people who have been born with cleft palates or hare lips. With microsurgery and surgeons' skills we are talking now of something which can be corrected. Some time ago a paediatric plastic surgeon told me that he was concerned that he was not getting enough babies with cleft palates each year to keep in best operating practice. He needed about 30 babies to operate on each year but this figure had dropped because they were being aborted.

Modern society seems to want only the perfect—designer clothes, designer babies, the immaculate fridge. There is also a growing danger of other people judging the quality of life of those they think will not have as good a life as they have themselves. Is that not playing God?

I hope that tonight's Question will alert some people who may not have realised how far down the road of discrimination we have gone, with regard to the unborn child who may or may not have a handicap.

8.30 p.m.

Lord Chan

My Lords, I thank my noble friend Lord Alton of Liverpool for securing this debate on what I consider an ethical issue connected with pre-natal diagnosis. Abortion of the seriously handicapped would not be possible without pre-natal diagnosis. I shall take a little time to trace the history of such diagnosis.

Pre-natal diagnosis of the foetus in the mother's womb was first introduced when pregnancies failed because of rhesus blood group incompatibility between the mother and her unborn baby. The mother would be rhesus-negative and her foetus rhesus-positive. With every subsequent pregnancy, the rejection of the foetus due to antibodies in the mother became more severe. The remedy of that condition, which produced premature delivery and death of the baby, was pre-natal diagnosis, measuring maternal antibody levels during the pregnancy and intervening with blood transfusion for the anaemic premature foetus. The lives of ill unborn babies were saved by pre-natal diagnosis and timely treatment with blood transfusion. That technical advance, introduced between 1949 and the early 1950s, led to other developments that could diagnose foetal congenital defects of the developing spinal column or neural tube, particularly severe spina bifida with paralysis of the lower limbs. As a consequence, some—if not most—such unborn babies were aborted, more so after the legislation of 1967.

We know that, although parents favour physically normal babies, groups of people with severe birth defects—the Disability Consortium—remind the public regularly that they are glad to be alive and lead a meaningful life in spite of their disabilities. The Government's disability discrimination legislation also supports the idea that disabled people lead and can enjoy a meaningful life.

Today, pre-natal diagnosis, which was introduced to save the life of ill babies, is being used so that mothers and fathers can decide to terminate the life of their unborn baby. Of course, in most cases of abortion or termination of pregnancy, the unborn foetus is physically normal.

In best practice, women who ask for and are offered pre-natal diagnosis should also be offered counselling. There are some defects of the developing foetus that can be diagnosed by routine ultrasound scan. Cleft lip and palate is one such diagnosable defect. Cleft lip and palate are eminently treatable by maxillo-facial surgeons in the NHS. There is no waiting list for the operation. The results of surgery are usually excellent, if performed on a young baby who can develop not only normal speech but acceptably good looks.

The issue is that doctors are expected to counsel patients who request termination of pregnancy on the ground of serious handicap. As my noble friend said, the number of terminations involving cleft lip and palate has increased. Could all of those unborn babies have severe chromosomal abnormalities with cleft lip and palate? I notice that, in 2000, nine foetuses with cleft lip and palate were aborted before 24 weeks. There are severe abnormalities such as trisomy E or Edwards' syndrome that would be considered for abortion. However, if the affected babies were allowed to progress to birth, some would have died soon after birth, and the rest would have succumbed within months. Therefore, it would be of interest if more details of the diagnosis of these cases could be obtained rather than the vague descriptions read out by my noble friend Lord Alton.

There was one case of the termination of pregnancy after 24 weeks of gestation which took place in 2001. I fear that the priority of patient's choice might lead to more abortions and the termination of pregnancy for reasons such as cleft lip and palate. This is an issue of concern to all of us, but if it is not, it should be.

8.35 p.m.

Lord Stoddart of Sh indon

My Lords, I cannot bring to this debate the expertise of the noble Lord, Lord Chan. who has just spoken, but I can join him in thanking the noble Lord, Lord Alton, for raising this very important debate tonight on cleft lip and cleft palate. He might be surprised that I am taking part in the debate on his side because he will know that my previous position on abortion has always been to support the 1967 Act, known as the Steel Bill.

Looking back to the debate at that time and my subsequent actions in another place, especially when I was a Government Whip. it seems to me that we have gone a long way from the intentions of the 1967 Act. Those of us who supported it believed that we were supporting a Bill to outlaw back-street abortionists, for example, which was good, and to protect women's health and welfare and the prevention of severely disabled births where there was no prospect of any viable, decent lifestyle. Those were the bases on which we made up our minds.

But we have gone a long way beyond that now. When I have read articles about cleft palates and cleft lips, I have realised that it is time to re-examine what we are doing as regards abortion and severe disablement. That is why the debate tonight is timely. We have gone beyond what we thought we were doing. We now have virtually abortion on demand. We have a woman's absolute right to have an abortion irrespective of other interests and the interests of other people. I believe that we have come a long way too far.

When I was supporting these measures I did not dream that we would reach a figure of 155,000 abortions every single year. That is an enormous number. It is almost the same number of people that the Government say we are short of and wish to allow to immigrate into this country to work. We are allowing the abortion of 155,000 souls every year.

We have now reached a new, alarming situation where viable foetuses which could live a good and useful life—perhaps even be geniuses—are killed unnecessarily. They could live a viable life if allowed to be born. I believe that it is now time to revisit the whole issue of abortion. I am going rather further than the noble Lord, Lord Alton. Perhaps it is people like myself who should be saying that at this time. I believe that we have gone too far and that now is the time to look at things.

In case I am accused of being too old to have decent opinions, I want to say that age brings experience and knowledge. Furthermore, I hope that I will not be accused of being some sort of religious maniac, because I am not. I am completely irreligious. I am sorry to say so when the most reverend Primate is sitting in front of me, but I am sure that he will appreciate the honesty with which I speak. I support the noble Lord, Lord Alton. and thank him again for bringing forward the matter.

8.40 p.m.

Lord Tombs

My Lords, I thank my noble friend Lord Alton for giving us the opportunity to debate this important topic. The subject of late-term abortions is distressing for babies, parents and doctors alike. They differ from early abortions in that the aborted child is fully formed and has survived the normal hazards of pregnancy to come within reach of an independent existence. The arguments so often advanced, that the foetus is not recognisable as a human being and so should not enjoy the rights of a human being, do not apply here. Post 24 weeks we are speaking of a baby with a chance of survival. Its form and behaviour are those of a human being, but denial of its life is the objective of abortion.

The argument that such extreme action is justified by the prospect of severe disability is questionable on the simple grounds that many people with severe disabilities lead happy and fulfilling lives. We would not consider denying that to an adult, so on what grounds can we reach a contrary conclusion in the case of a viable baby? I am afraid that the answer lies in the old saying, "Out of sight, out of mind". It is possible, with the help of doctors, to avoid confronting the enforced termination of life in a brutal fashion that would certainly not be tolerated in the case of a visible adult.

However, the slippery slope, aided by concealment, leads to passive acceptance of the unseen and a growing practice of it. Again, the old saying, "Familiarity breeds contempt" has led to a steady growth in post 24-week abortions over the past 10 years, although the total number of abortions has fallen slightly in that time and the number of those performed on the grounds of diagnosed disability has remained fairly constant.

Many of us oppose the death penalty on the understandable grounds that errors cannot be redressed. Such an attitude is based on respect for human life but is denied to the undelivered baby by legislation and by growing practice. A comprehensive study of autopsies on late abortions due to diagnosed abnormalities shows a confirmation rate of 72 per cent. That is a pretty good figure, given the diagnostic difficulties, but it shows that diagnoses are not infallible and that the irrevocable step of terminating a life is taken without the benefit of the doubt being given to the child. Whatever happened to the notion that society does not have the right to destroy life, which is so apparent in the treatment of convicted murderers?

The decision on late abortions is hazardous, depending largely on the attitude of the mother as interpreted by her doctors. It is in the nature of things that such decisions rest on a large measure of individual judgment. It is highly unsatisfactory that legislation offers so little guidance. The slippery slope therefore becomes inevitable. Every violent death diminishes society, and never more so than when it applies to an innocent child subjected to brutality sanctioned by the law. Such brutality brutalises society itself, and we have a plain duty to avoid it.

It is beyond question that many prospective parents are deeply disturbed by the prospect of having a disabled child. The fact that many parents survive it and that they and their children share a happy life together does not remove the mental anguish which some parents believe to be beyond them. In such cases, the answer must lie in state provision of support to the parents, often sadly lacking in today's society. In so far as such help is not available, the state is an accomplice to the brutality that I have described. I hope that the Minister will address that problem when he replies.

8.45 p.m.

Viscount Craigavon

My Lords, I was hesitant about the merits of this debate, and it has turned into something very different from what I thought it was going to be. I paid the noble Lord, Lord Alton, the compliment of reading what he had put on the order paper, which largely mentions cleft palates and cleft lip, particularly after 24 weeks. So that is what I have addressed. Partly for those reasons, people who might be expected to speak on the same side as myself in a debate like this have decided not to attend.

I compliment the noble Lord, Lord Alton, on not using this debate to comment on a case which is going through the courts, which I thought he might be going to do. We are in the middle of litigation, and I suspect that this amendment might have originally been put down to further that cause. It is absolutely proper that we are not discussing it today, but, as background to some of my remarks, that had featured in my expectations.

In his introductory speech the noble Lord, Lord Alton, he went very wide of what seemed to be on the Order Paper. I am all in favour of having debates in this House on abortion and anything to do with it, but I think it is discourteous not to give the House proper notice of when that is being tried, and trying to do it in a dinner hour debate is slightly counter-productive. I do not know whether he gave Front-Bench spokesmen notice that this was what he was going to do, but it certainly did not come to my notice.

I am concentrating, in a very short time, on cleft lip and palate and in particular post 24-week abortions. I first remind the House that cleft palate and lip is not a simple syndrome. There are two aspects. First, it can often be associated with severe congenital abnormalities. Secondly, in cases where there is just a cleft lip or palate, there are degrees of severity, with some of the more serious not being amenable to surgical repair. I have the greatest respect for the noble Lord, Lord Chan, and noticed that he used the word "usually", in the context of being usually treatable. I take his point. All that adds to the uncertainty of what has been diagnosed in a particular case. I put all this in the context of the prevalence of a case such as one referred to in the Motion, that is post 24-weeks in cleft palate and lip. The Office for National Statistics's figures show that since 1999 there has been only a single case, in 2001, of a termination post 24-weeks for cleft palate. It is unfortunate that this single case must be assumed to be the one which is subject to all this publicity, and the subject of the legal case which we have read about in the papers.

In 2002, the last year for which figures are available, there was one pre-24-weeks case for cleft palate. Similarly, in 2001, there was one other case which was pre-24-weeks. Our attention on what I thought was going to be the Unstarred Question today is focused on the fact that there was one such termination out of over 186,274 abortions in 2001. That is also the sole recorded case post 24-weeks in the last four years. I was questioning whether that was an appropriate subject for a parliamentary debate, to take up the time in the way that we are. As I say, I am very happy to have a more general debate on abortion.

Present abortion legislation was last decided by substantial majorities in both Houses in 1990. The noble Lord, Lord Alton, used the word "eugenic" which I do not think is a parliamentary word to attach to statutes which Parliament has passed. I am not asking him to withdraw it. He did actually use it on the Order Paper of this House. Fortunately, he was persuaded to withdraw it, because it was completely out of order.

It was agreed by Parliament in 1990 to leave the wording relating to grounds in the Act to be interpreted by the doctors involved, in discussion with the patient. One of the changes following the 1990 Act was that all terminations post-24 weeks could only be performed on NHS premises. That is an additional safeguard. It has been the practice under this system that decisions are taken in clinical discussions with the woman. That has served us very well.

In cases such as those mentioned in the Question, none of us knows the circumstances that persuade a woman and her doctors that abortion is the best option in her particular case. I am therefore not persuaded that there should be a review by the Department of Health on this particular aspect of abortion law.

8.50 p.m.

Lord Clement-Jones

My Lords, I, too, must express gratitude to the noble Lord, Lord Alton, for giving us the opportunity to discuss some of the issues raised in the debate. Those issues have broadly been raised in an extremely dispassionate and rather forensic way, which is welcome. I have some qualms about the timing of the debate because some of these matters will soon be tested in court. I would have preferred to have the debate after those issues had been tested. Perhaps the remedy is simply to have another debate when we know what that decision is.

Although I am a longstanding pro-choice supporter who certainly supports the terms of the 1967 legislation of my noble friend Lord Steel, I am also one who believes that the legislation should operate memberconstituency intended and not as some kind of lifestyle choice. There has been much debate on this issue in recent months, inspired by the case that we cannot discuss. In some ways, I admire greatly the journalists who have commented on the issue and the facts surrounding it because they have been able to adopt a degree of certainty that I am not able to share. I certainly do not feel the degree of certainty about the issue which they have expressed, largely because each case must be different on its facts. Without the real facts, I refuse to censor. Without the facts I cannot criticise the current state of the law.

As the term "serious handicap" is not legally defined—which is highly regrettable; it should be—future events in court should be welcomed. Moreover, there must be a consideration of the kinds of responsibility on doctors and the way in which they interpret the Act. The testing of that is also to be welcomed. Those aspects are absolutely at the core of the legislation. They are not to be taken lightly. I await developments before the court with considerable interest. As the noble Viscount, Lord Craigavon, mentioned, doctors in a particular case may think that a cleft palate is symptomatic of a more serious underlying condition. I simply do not know the facts. Until one does know the facts, it is very difficult to make a judgment. However, perhaps doctors will be influenced by the mental state of a prospective mother. Again, I do not know the facts.

Although one may regret the sheer numbers of abortions—more than 170,000 in 2002—as the noble Lord, Lord Alton, said, 1,800 of those were performed on grounds of serious disability. However, in terms of today's debate, after the 24-week period, only one of those was performed on the grounds of cleft lip or cleft palate. It is important that we put that in context.

However—and there is a however—I believe that we should seriously consider the court's conclusion, when it comes, and contemplate amendment of the Act if we need to. We should also ensure that when parents have antenatal screening, they receive information and counselling, as the noble Lord, Lord Chan, says, about the nature and consequences of handicaps or disability. I have seen enough parents of handicapped children and children with severe learning difficulties to know that those children are often cherished and joyful additions to families. As one wise journalist said in commenting on this area: We should be more accepting of imperfection". "Serious handicap" is a blanket term, but the range of seriousness in each condition can be enormous, giving rise to very difficult value judgments in these circumstances. So I believe that the key is to ensure that parents take the right decisions, that we do not morally censure them, but that they do have the information and counselling which enable the right decisions to be made.

8.55 p.m.

Earl Howe

My Lords, as the noble Lord, Lord Alton, has indicated, the problem at the heart of his Question is not only the interpretation of the terms used in the Abortion Act 1967, it is also a medico-ethical one. It is one matter, and an important matter, to try to determine what Parliament meant when it framed the present law. It is another matter to decide whether, against the background of current medical knowledge and practice, we feel it right to endorse the view that Parliament took in 1990 or to back away from it.

Taking his cue from a current legal case which I do not wish to comment on directly, the noble Lord has questioned the legality of an abortion of a foetus of more than 24 weeks' gestation, diagnosed as having a cleft palate, presupposing that this condition on its own is regarded by the doctors involved as giving rise to a serious handicap in the child, were the child to be born.

The Cleft Lip and Palate Association, to whose work I pay tribute, is quite clear. It states that, if only a cleft palate/lip is diagnosed, with no other medical complications, then late termination is not something we would condone". I associate myself personally with those words. But we should note the qualification, "with no other medical complications". Cleft lip and palate can often be a marker for other congenital anomalies such as serious heart defects or chromosomal disorders. Pre-natal diagnostic tests are usually possible to screen for other conditions once cleft lip and palate have been diagnosed.

The question posed by the noble Lord, Lord Alton, however, presupposes that in a given case no other congenital anomalies have been diagnosed. As to what Parliament believed in 1990 when it amended the 1967 Act, there can, I think, be little doubt. At that time there were those who suggested publicly that under the Act as amended, an otherwise healthy foetus of more than six months could be legally aborted for having a hare lip or a cleft palate. This suggestion was greeted with outrage by various Members of Parliament, among whom were Sir David Steel, now the noble Lord, Lord Steel of Aikwood, and the current Solicitor General, Harriet Harman. The 1990 amendments were based on a report two years earlier by the noble and learned Lord, Lord Brightman, which spoke of, an abnormality that would prevent sustained life after birth or that would result in a gross handicap". When he spoke in the debate on the Bill in your Lordships' House, the noble and learned Lord made a point of excluding hare lip or cleft palate from the scope of this definition.

At the same time, the Act is framed in a way that leaves the decision to proceed with a termination dependent on two doctors, acting in good faith, being of a certain opinion. I do not know how the courts will look at the case that has been mentioned, but it seems to me that this aspect of the Abortion Act—that an abortion, if it is to be legal, must be based on honest medical opinion rather than strictly on the facts—should play an important part in the court's deliberations. There can be no doubt that Parliament took proper cognisance of this in 1990.

Aborting a foetus on the principal grounds of cleft lip and palate is rare. There has been only one instance since 1990 where the foetus has been of more than 24 weeks' gestation and, I believe, 25 instances where the foetus has been of 24 weeks' gestation or under. Some of us would question whether cleft lip and palate on their own are ever sufficient grounds for a termination. However, any decision to proceed with a termination will be one taken jointly by the woman and her doctors on an informed basis. The doctrine of informed consent applies both ways. The mother must be informed about what cleft lip and palate actually are and what they are not, what treatments are available, the success rate of such treatments, and the quality of life likely to be enjoyed by the child. She should also be informed that any diagnosis of cleft palate is open to a high degree of error; that is, of false positives.

Clinicians, on the other hand, need to interpret the law correctly, and here the guidance issued by the Royal College of Obstetricians and Gynaecologists is crucial. I have read the key parts of that guidance as regards what should constitute "serious handicap" when interpreting the Act, and it seems to be a model of clarity and accuracy. It would, I think, be impossible for any doctor reading those guidelines to conclude it would be legal to abort a foetus of more than 24 weeks' gestation solely on the grounds of cleft lip and palate.

Separate from the state of the law, the wider socio-ethical issue remains. The question is whether, looking at the issues afresh, physical handicap should carry the weight that it does in the Abortion Act and in the scales of decision-making on abortion. Over time, society's attitudes to matters such as this undergo change, and the law needs to keep pace. With the speech of the right reverend Prelate the Bishop of Coventry ringing in my ears from last week, I believe it behoves us all to reflect on the ideas that he emphasised: namely, the notion of personhood and the value we place on individuals who are less than whole. If, in due course, Parliament is given an opportunity to revisit those issues, I look forward to that debate.

9.1 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)

My Lords, I am sure we all appreciate why the noble Lord, Lord Alton, has raised this important issue. I am grateful to all noble Lords who have provided their views in the debate.

As we all know, in 1967 and 1990, Parliament decided, on a free vote, that abortions may lawfully be carried out in the circumstances specified in the act. As such, the Government consider that facilities for abortion treatment should be available. The Government also have a responsibility to monitor the provisions of the act as they are, unless and until Parliament chooses to further amend that law.

As many noble Lords will be aware, last December permission was granted to an applicant for a judicial review of whether cleft lip and palate can ever be considered as a serious handicap under the Abortion Act. The case will now proceed to a substantive hearing, to be heard the week commencing 24 May.

The following declarations are now being sought: first, that serious handicap in Section 1(1)(d) of the Abortion Act 1967 has to be understand by reference to the remediability of the condition; secondly, that cleft lip and palate does not constitute "serious handicap" within the meaning of Section 1(1)(d); thirdly, that the foetus at 24 weeks has a right to life pursuant to Article 2 of the European Convention on Human Rights, which is only subject to the mother's Article 2 rights; and, fourthly, that Section 1(1)(d) is incompatible with Articles 2,3,8 and 14 of the European Convention on Human Rights. A declaration is also being sought that the police must reconsider their decision not to prosecute the two doctors in the case which led to the hearing.

I should clarify that the Secretary of State for Health has joined these proceedings as an interested party because the Department of Health has responsibility for monitoring the operation of the Act. This is done in three main ways. First, all independent sector places wishing to perform abortions have to be approved by a health minister under the Act. These places are also registered with, and regularly inspected by, the National Care Standards Commission.

Secondly, details concerning every abortion performed are required to be submitted to the Chief Medical Officer on Form HSA4. This notification is used by the department as an aid to checking that terminations are carried out within the law. Form HSA4 contains many details, including: the names and addresses of the doctors who certified there were grounds under the Act; gestation; method used; place of termination. Every form is checked and monitored and forms are returned to practitioners if information is missing or clarification is needed. However, it is possible that published statistics do not fully capture all the detail on forms because a coding process takes place. That is the best answer I can give to the noble Lord, Lord Alton, who raised this particular issue.

Thirdly, the Department of Health investigates any specific complaints and allegations of abuse. Three other interested parties have also joined the proceedings—the Royal College of Obstetricians and Gynaecologists, Antenatal Results and Choices, and Disability Awareness in Action.

As we are awaiting the decision of the court on the judicial review, it would be inappropriate for the Government to review the provisions of the Act and its working as suggested by the noble Lord, Lord Alton. I must proceed with great caution and not in any way appear to anticipate the judicial review. I am sure that your Lordships will understand if I do not venture responses in the debate to all the questions raised.

Turning now to the provisions of the Act, Section 1(1) of the Abortion Act, as amended, provides the grounds under which abortions may be carried out. As noble Lords have said, one of these sections, Section 1(1)(d), states that an abortion may be performed when two medical practitioners are of the opinion, formed in good faith, 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 noble Lord, Lord Alton, asked about the compatibility of Section 1(1)(d) with the Disability Discrimination Act. My understanding is that in August 2001 the Disability Rights Commission ventured the view that this section was not inconsistent with the Disability Discrimination Act as that Act is concerned with the rights of living persons.

Turning now to the remediability of treatment, the judicial review will consider whether "serious handicap" should be considered in the context of the ability to treat the condition which has been diagnosed or is suspected. The availability of remedial treatment which might alleviate suffering is clearly a factor which may be taken into account under Section 1(1)(d) of the Act in making that assessment. As the noble Earl, Lord Howe, said, the Royal College of Obstetricians and Gynaecologists has given guidance on the care of women seeking abortion. It states that an opinion that a particular foetal abnormality would be associated with a serious handicap should be based on a careful consideration of a list of factors, not all of which may be relevant in every case but one of which is the probability of effective treatment, either in the womb or after birth.

However, the fact that remedial treatment may be available does not automatically mean that it will be successful and that the child will not suffer from a serious handicap. Remedial treatment may be prolonged, painful, subject to delays and doubts as to success, as well as dependent upon the co-operation of the Parents involved and the nature of the condition in question. Hence all factors in any one case must be assessed before a decision can be reached, as stated in the Royal College of Obstetricians and Gynaecologists guidance. A declaration that serious handicap has to be understood by reference to remediability would fetter the discretion conferred by the Act on doctors to accord remediability appropriate weight depending on individual circumstances.

I know that some may question whether cleft lip and palate should fall within the definition of "serious handicap". However, Parliament did not define serious handicap in the Act. Indeed, it chose to leave this to the expert judgment of the two doctors involved, who are required to form their own opinion about the seriousness of the handicap the child would suffer if born, taking into account the facts and circumstances of each individual case. Although the mother will of course be the person who ultimately must agree that the termination should go ahead, and good practice would require consultation with the parents during the process of reaching a decision about the seriousness of the potential handicap, Parliament decided that the lawfulness of any termination must ultimately be determined by two medical practitioners acting in good faith, as required by Section 1 of the Act.

In conferring on doctors the duty to reach decisions about the risk of serious handicap under Section 1(1)(d) of the Act, Parliament decided that doctors are best placed to reach specialist expert medical judgments on what conditions constitute a "serious handicap". Doubtless in this context the guidance that the Royal College of Obstetricians and Gynaecologists provides on these matters to its fellows and members is extremely important in guiding doctors. So, too, is any advice from relevant specialist medical sources, including the Royal Colleges relevant to that specialism, that have specialist knowledge of the suspected handicap in question. Every case is potentially different with a series of interlocking factors to be considered; the background context is the often fast developing area of medical and technological advances which the doctors in question must take into account when reaching such judgments.

We have been advised by doctors specialising in the condition that there are further adverse complications that may be associated with cleft lip and palate. For these reasons, and for the reasons given earlier, the department considers it inappropriate to advance a position as to whether or not the diagnosis of cleft lip and palate would in general terms amount to a serious disability. This is precisely the question that the Act requires the two doctors to answer on the facts of an individual case (having considered the guidance of the Royal College of Obstetricians and Gynaecologists, and other guidance, which is regularly reviewed). It cannot be answered in general terms. I must decline to respond further in this area to the questions posed by the noble Lord, Lord Alton.

In conclusion, the current judicial review will examine many of the issues raised here today and we await the outcome of that review. Noble Lords can be assured that the department takes its role in monitoring the Act very seriously and any complaints or allegations of abuse are investigated and action taken, as appropriate.

Baroness Andrews

My Lords, I beg to move that the House to now adjourn during pleasure until 9.15.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 9.12 to 9.15 p.m.]