§ 11.22 a.m.
§ I approach this debate with trepidation, because I fear that the conclusions of the Committee will offend the consciences of some people; and with hope because I believe that our conclusions are a basis for settling a controversy, which is deeply divisive, for some years to come.
§ The first part of the Committee's report explains why the Bill which the Committee were called upon to examine could not possibly proceed, however worthy its purpose. I shall deal with that part as briefly as I can. The remainder of the report is directed to the question whether an alteration should be made to the maximum gestational age at which abortions may lawfully be carried out. No doubt that is the part of the report upon which noble Lords will wish to concentrate.
§ I shall address myself to the first part of the report: why Bishop Montefiore's Bill, introduced in the last Session and revived in this one, should not proceed. The Bill sought to substitute a gestational age of 24 weeks for the gestational age of 28 weeks in the Infant Life (Preservation) Act 1929. The Act was not an abortion Act; it was a criminal statute designed to fill a gap in the law of England and Wales which did not exist in Scotland. Whereas it was murder to take the life of a child when fully born and a crime to procure 385 a miscarriage—except to save the life of the pregnant woman—it was apparently not a crime to take the life of a child as it emerged from the womb and before it became an independent being.
The 1929 Act created the crime of child destruction to fill that gap. It was defined as destroying:
the life of a child capable of being born alive",
unless the act was done to save the pregnant woman's life. To meet the problem of proving that the child was capable of being born alive there is a presumption in the Act to that effect, if the woman has been pregnant for 28 weeks or more. At that gestational age the burden of proof shifts from the prosecution to the defence.
§ I leave the 1929 Act and now turn to the Abortion Act 1967. That Act authorises an abortion in four cases. They are usually described as grounds one, two, three and four. Each ground defines a risk and if that risk exists the pregnant woman is entitled to an abortion if she so wishes. The first ground is the risk to the life of the woman if the pregnancy continues. That ground is a reformulation of the exception contained in the 1929 Act. About a quarter of 1 per cent. of abortions are carried out on that ground. There were about 480 in 1986, which I am told is the last year for which figures are available.
§ The second ground is the risk of injury to the physical or mental health of the pregnant woman should the pregnancy continue. Almost 90 per cent. of abortions are carried out on that latter ground; there were about 153,000 in 1986. However, not many such abortions take place in or after week 25 of the pregnancy. In 1986 there were only 29 in England and Wales and none at all in Scotland.
§ The third ground is the risk of injury to the physical or mental health of any existing children of the mother should the pregnancy continue. Less than 10 per cent. of abortions are carried out on that ground, either alone or coupled with the second ground. Ground three is seldom the reason for an abortion in very late pregnancy; in 1986, in or after week 25, there were none.
§ The fourth ground relates to substantial risk, not mere risk: that the child if born would be so abnormal as to be seriously handicapped. Abortions on that ground account for little over 1 per cent. of the total; namely, about 2,000 in England and Wales and about 100 in Scotland.
§ The legalisation of abortion on those four grounds is subject to four safeguards. Two safeguards are imposed by statute. First, two doctors must certify that one or more of the permitted grounds exist. Secondly, the abortion cannot be carried out in a nursing home, as distinct from a National Health Service hospital, unless the nursing home has been approved by the DHSS or the Scottish equivalent. Two further safeguards have been imposed by administrative direction. First, no nursing home can carry out an abortion after 20 weeks unless the home has been specially approved by the appropriate health department. Only seven nursing homes are at present so approved. Secondly, no nursing home at all can carry out an abortion after week 24. That can only take place in a National Health Service hospital.386
§ I have not mentioned the section of the Act which in terms imposes a maximum gestational age at which an abortion can lawfully be carried out. The reason is that no such section exists; nor so far as I have been able to trace was a maximum period for abortions discussed in either House when the Abortion Bill was debated. The only reason that we have in England and Wales a prima facie 28-week limit is that there is a cryptic provision stuck at the end of the Abortion Act which says that nothing shall affect the provisions of the Infant Life (Preservation) Act 1929. What the Bill's draftsman thought that he was doing completely baffles me. For one thing, the 1929 Act did not apply to Scotland. Parliament cannot have intended that a doctor carrying out an abortion in week 28 south of the Border should be imprisoned for life while the same doctor carrying out the identical abortion on the identical woman north of the Border should be acting lawfully.
§ Secondly, it is astonishing that if Parliament really intended to impose a statutory 28-week limit on abortions, instead of leaving the matter to the good sense and ethical integrity of the medical profession, it did not say so in terms. If the maximum gestational age at which abortions should be done ought to be changed, it must be by amending the terms of the Abortion Act and not by tinkering with the 1929 Act. The committee accordingly recommended that the Bishop's Bill should not proceed.
I turn now to the question of whether there should be a reduction in the maximum gestational age for abortions via the 1967 Act and not via the 1929 Act. The committee's approach is summarised in paragraph 53 of its report, which I ask your Lordships' permission to read. It is in a way the most important paragraph in the whole report because it epitomises the question with which the committee was confronted and the path that it followed in its search for an answer:
This subject is one which deeply divides the medical and nursing professions, religious bodies, social workers and indeed society at large. They however are not personally affected, except doctors and nurses to the extent that they carry out the treatment in a particular case. Above all it is the woman who has to undergo the physical trauma of childbirth. It is she who is primarily responsible for the child in its early days and usually for much longer. In many cases she may not even have the support of the child's father. It is the mother's health and her needs which must heat the forefront of any discussion of abortion. They have to be placed on one side of the scales. On the other side of the scales is the duty of society to protect the unborn child. But neither the natural desire of the mother to protect her own health and to decide her own needs, nor the duty of society to protect the unborn child, is in the Committee's opinion unqualified. The task of the Committee is to reach a conclusion as to where the balance rightly lies between mother and unborn child if a statutory ground for terminating the pregnancy exists".
§ The Earl of Longford
My Lords, I hope that the noble and learned Lord will not think it impertinent if I ask him how it was that the committee felt that it was confronted with this question. It was presumably confronted with the duty of considering the Bishop's Bill, which it then decided to rule out of order. Why did the committee undertake this further inquiry?
§ Lord Brightman
My Lords, I wonder whether the House would allow me to defer answering that question because I see that the time is passing and I have a little more which I feel bound to say.
387 The committee could not hope to produce an answer to the problem which would be satisfactory to the consciences of all. The most that it could hope to achieve was a reasonable basis on which this deeply divisive issue might properly be laid to rest for the time being.
The committee of nine members was as independent a committee as could be expected. Six members of the committee had taken no part in the Second Reading debate of Bishop Montefiore's Bill. All the members of the committee were told, and accepted, that whatever their preconceptions it was their duty to maintain an open mind until the evidence was completed. I can vouch for the fact that the chairman approached his job totally ignorant of the law on abortion and without ever having directed his mind previously to the social and moral issues involved.
The committee received representations from over 60 persons and organisations. It considered over 300 pages of oral and written evidence. It reached a unanimous conclusion as to what the law should be. That conclusion in summary form is that the maximum gestational age for abortion should be reduced to 24 weeks with three exceptions. The exceptions are: if the life of the pregnant woman is at risk; if the abortion is essential to preserve the health of the pregnant woman; and if there is a substantial risk of serious fetal abnormality. In the exceptional case, the committee recommends that there should be no maximum gestational age for an abortion, which is in fact the present law of Scotland and of some European countries. The first exception is one which I suppose would occasion little controversy.
The second exception requires a short explanation. Under the existing law, a pregnant woman may have an abortion if two doctors diagnose a risk of injury to her physical or mental health if the pregnancy continues. The committee considered that that was not a stringent enough test if the abortion were delayed beyond 24 weeks. The committee considered that the abortion must then be essential to preserve the health of the pregnant woman. In other words, there must not be merely a risk of injury to her health but a certainty of injury in the estimation of the two doctors who certify.
The third exception calls for little comment. If, for example, a pregnant woman is diagnosed as carrying an anencephalic fetus in the 28th week of her pregnancy, it would be inhuman to compel her to carry the fetus to full term just because the diagnosis had not been made two weeks earlier.
In making these recommendations, as I have already explained, the Committee endeavoured to find a just balance between the pregnant woman's needs on the one hand and the duty of society to protect the unborn child on the other hand. Perhaps the noble Lady, Lady Saltoun, would allow me to borrow and adapt her wise words spoken in another debate. The only thing I feel depressingly sure of is that whatever the Committee recommended, it was going to be wrong from someone's point of view. I beg to move.
§ 11.42 a.m.
§ Lord Rawlinson of Ewell
My Lords, the whole House will be deeply grateful to the noble and learned Lord for the clarity and sincerity with which he has put before the House the report of the committee of which he was the distinguished chairman. He said that he approached the matter with hope, the hope that this controversy would somehow be settled by the deliberations of a small committee of this House. That really was an exercise in hope, if that is what the noble and learned Lord thought would happen.
It was with profound disquiet that I studied and read this report. Not only do I have profound disquiet about the conclusions on the basic issues which concern the morality and the whole ethical nature of the controversy, but I have profound disquiet about the unnecessary nature of this report and its untimeliness. It is and should be politically unfortunate, indeed it is politically inept, for a committee of this House to have gone beyond what was necessary and to delve into these matters at a time when Parliament is engaged elsewhere in the gravest controversy over the basic issue. I do not wish to be churlish to the committee, which I know must have given a great deal of time and attention to a matter of great controversy.
However, in my submission, it is extraordinary that in November last year, when the House ordered this committee to consider the Bishop's Bill, it did not appreciate that a new situation has arisen and that it should therefore have made a much more judicious report.
In November, as the House directed that its committee should do, it had a task to do. That was in respect of the Infant Life (Preservation) Act 1929, which was wholly a matter for this House.
However, by 22nd October a new factor had arisen. This House does not live in isolation in Parliament, it does not live entirely in itself. It is a part—and a very important part—of Parliament. There was this new factor—the publication in another place of a Bill. It became clear that during this Session, as opposed to the last Parliament, the whole issue of the termination of pregnancy would be a subject of intense debate in the elected Chamber in another place. As every noble Lord appreciates, that is where the issue will ultimately be decided. If they did not know then, they certainly knew by 22nd January when there was a Second Reading of that Bill in another place.
Nevertheless, it seems to me that this small committee of your Lordships' House decided to discuss and report on the basic issues, as it called them. It had the power to do so and, in criticising the use of that power, I hope that I shall not be accused of denigrating in any way the position or work of this House. None is as certain as I am of the importance of a bicameral constitution in the United Kingdom or of the importance of this House in imposing a check on what would otherwise be the unlimited powers of another place.
389 However, all of us in this House, because of its composition, will understand the restraint in the use of our powers which there must be. We willingly accept the conventions that on Second Reading we do not reverse Bills coming to us from another place, and that above all we avoid constitutional confrontation.
This House and its committees operate within and not in isolation from Parliament as a whole. The House of Lords' committees in my view constitute an immensely valuable aid in the working of Parliament as a whole. Its greatest virtue is in assembling and analysing facts, elucidating complex issues and at times expressing robust opinions and recommendations—but surely not in the middle of debate on a social issue of acute controversy when the elected Chamber will eventually have to make a decision. That issue will undoubtedly come to this House as a House, and that will be the time when this House will have to make a judgment. Is the House to accept from a small committee a value judgment on a grave matter of political, ethical and social importance which is under debate elsewhere?
Perhaps I may remind noble Lords of the timetable. There was the new Parliament in the summer of 1987. There had been work by this committee in the old Parliament. On 22nd October a Bill was presented in another place; on 9th November this House gave orders to the committee to consider the Bishop's Bill. In November and December that committee heard evidence. On 22nd January there was a decision in principle on the Second Reading where a substantial majority of 500 elected representatives in another place fixed a time limit of 18 weeks for late abortions. That is a political fact. On 15th February, three weeks later, this committee printed conclusions that there should be no time limit fixed for late abortions. In other words, may it not appear that the committee is saying, "You elsewhere are wrong. We now inform you."
In paragraph 5 of its report the committee discharged its duty to the House with respect to the Bishop's Bill, which it said was inept for prescribing the maximum gestational age for abortions. In paragraphs 6 to 19 they give their reasons and the noble and learned Lord has given them today with great clarity. If I may say so, they are clear, sensible and incontrovertible, and they certainly satisfied me as a lawyer. I should have thought therefore that the matter had been disposed of sensibly, clearly and practically by the committee to which the task was given. They also assembled data, some of which had been collected in the last Parliament. They say that they hoped that the data would prove of assistance to another place and it certainly will. It is a very important task and they have done it.
However, they then went on to do that which they called addressing the basic issue before them. Was it the basic issue before them? Even if it was, in the political circumstances of the time, having discharged their real prime task, why not halt there? I would suggest to the House that it is not the time for a committee to be giving such views. Those views give the impression, although they were not meant to, that we sitting here are the clever ones who have all the 390 qualifications and that we are instructing the ignorant—the elected in another place. The noble and learned Lord and the members of his committee may accept that that impression can be gained from reading that report. That is unfortunate and unnecessary and never need have been.
There are 59 paragraphs of the report plus an appendix and the evidence. I read with some unease some of the oral evidence given to this committee. One witness led into irrelevant controversy until the chairman of the committee managed to bring him to a halt. One rebuked—I hope jocularly—about whether a college had sufficient members of either sex. Dr. Wendy Savage, speaking of a class of abortion patients, used the expression that Mr. Alton was "going on about" this and other such expressions. The flavour of that committee is not, I would suggest, helpful to this House.
Other noble Lords will address and analyse the merits of the conclusions of the report. For myself, I make it perfectly clear that I am looking at 3,700 of some 4,000 late abortions over 20 weeks which were affected not because of the handicap of the child but for social reasons. I look at the effect of the conclusions which would enable a child fully viable and able to suffer pain to be killed for social reasons. I look at 11 gynaecologists who effect 60 per cent. of the late terminations for cash.
Above all, what disturbs me is the insensitiveness of this report. I have been a Member of this House for only 10 years. I am very proud to be a Member and of the position of the House and the part that it plays in the constitution of this country. But I think that this report was politically unfortunate. It looks as though it was preempting and trying to influence judgments elsewhere. It is as though it was challenging a decision which has been made by a majority of the elected representatives. I think that this committee has acted injudiciously and by doing so it has, I believe, injured the interests of this House which surely it is in the interests of all noble Lords to sustain.
§ 11.52 a.m.
§ Lord Rea
My Lords, I personally have found this report fascinating reading. I should like to congratulate the noble and learned Lord, Lord Brightman, and his committee on producing such a valuable document. I have to say that I shall unfortunately have to leave the House before the Minister replies because I have a full surgery of 18 patients booked to see me, and it starts at 2.30 this afternoon.
I think this is a very valuable document because it contains such measured and thoughtful conclusions. Also, it is based on very wide-ranging and detailed evidence with clear and full statistics. The witnesses included representatives of all organisations which hold a position on the subject, but particularly those who in their professional work have to deal with women who are in this very sad predicament.
In opposition to the noble and learned Lord, Lord Rawlinson of Ewell, I feel that the fact that legislation is being discussed in another place at the moment, far from making this report unwise, makes it more 391 relevant. It is an extremely useful compendium of facts about the whole topic.
It is very difficult to have a rational discussion on the topic of abortion— already we have seen evidence of this although the debate this afternoon has hardly begun—because of the deeply held views of the protagonists. So it is most refreshing to read clear, cool and informative words about such an emotive topic. The report's conclusions ring true from the point of view of at least this practising doctor who is faced from time to time with women who, in the middle of their pregnancy, feel that they cannot continue with it. I know that most of my colleagues share my views.
I do not think that anyone, unless she is very sick, actually takes pleasure in abortion at any stage, whether as a patient or as an operator. The nearer to term the more objectionable it becomes, so that any move to lower the legal limit is bound to have emotional appeal. The Bill of the right reverend Dr. Hugh Montefiore was especially attractive, as a 24 to 28-week fetus can sometimes survive now with the help of modern intensive care. But I think that the majority of women in recent polls who favoured a change in the law had no experience of the reality of the problem as it appears to the woman concerned and to those whose help she is often desperately seeking.
The recommendations seem to me to achieve the right balance in a difficult area, combining both a tightening up of existing abortion law where it is appropriate—not to the Infant Life (Preservation) Act as the noble and learned Lord, Lord Brightman, has explained—and a loosening of it a little in some other circumstances.
The numbers involved are extremely small. As the noble and learned Lord said, in 1986 only 29 pregnancies of 25 to 28 weeks were terminated, of which 21 were on grounds of serious handicap. Because the total number of abortions over 24 weeks has come down drastically—without any change, I may say, in the law—clue to regulations and changing practices, the proportion of late abortions for fetal abnormality has gone up greatly. If we take abortions of 25 to 28 weeks the total numbers went down from 142 to 29 from 1981 to 1986. But those for handicap fell only from 28 to 22. So the proportion of late abortions for handicap increased from 20 per cent. to 76 per cent. of the total.
The reason that the committee has recommended that there be no upper limit where serious handicap has been detected is to allow for the circumstance described in paragraph 57. The noble and learned Lord, Lord Brightman, has already said this in words, but it would be useful to quote from that paragraph which states:the Committee see no purpose in retaining the 28-week restriction at all.That concerns serious handicap. The paragraph continues:If, for example, an unborn child were diagnosed as grossly abnormal and unable to lead any meaningful life, there is in the opinion of the Committee no logic in requiring the mother to carry her unborn child to full term merely because the diagnosis was made too late to enable an operation for abortion to be carried out before the 28th completed week.392 The present situation is an anomaly. A doctor potentially risks prosecution if he or she induces labour in such a case after 28 weeks to rid the mother of what used to be called a "monster" which has been diagnosed very late. I am afraid that this may well occur for a variety of unfortunate reasons which I cannot go into now.
With regard to congenital handicap it is held by some that it is wrong to deny life to such a child. Examples of many handicapped people who have succeeded against great odds are known to many of us. Some of those people have great charm and high talent. But there is another side to the coin. The majority of handicapped people, if not all, would much prefer to have been able-bodied. If they could imagine it, even more mentally handicapped people would feel that way. Their lives are very hard. Their mothers may be dedicated and do a wonderful job, but so great is the demand that they may have little time for anything else.
Sometimes the effect on the rest of the family is catastrophic. I have known a number of marriages break under the strain. If the pregnancy of a potentially handicapped child were to be terminated the mother usually quickly gets pregnant again. If she is preoccupied with a severely handicapped child, that is less likely to happen. That has certainly been my impression from my experience. To terminate a pregnancy which involves a handicapped child makes way for the potential birth of an able-bodied child which has a greater potential for happiness and will more easily be able to take its place as a full contributor to the community.
That does not mean to say that all possible help should not be given to existing and future disabled people. Of course it must be. Only a proportion of handicaps can be detected before birth. However, I believe that most handicapped people, were they given the chance, would rather be that hypothetical able-bodied sibling who might have replaced them if their own lives had been cut off before they reached consciousness.
It is right to tighten the requirements for termination over 24 weeks on the second ground, the health of the mother. However, there are still a few desperate cases every year where a termination at such a late stage is justified. I am thinking in particular of very young girls, the mentally ill and the mentally handicapped. They do not have the support systems or coping ability to raise a child. In such cases, an adoption might not be possible for various reasons. I do not believe in any case that a mother should be required to carry a child to term in order to provide a baby for some other family to adopt unless she herself wishes to do so.
The children of women who ask for a late termination would often be thrown on the resources of the social services. There is no need to perpetuate such misery. The social service departments will have enough children to care for for other reasons for at least the next half century and probably more. Everyone hates doing abortions of this type. However, the future unhappiness of the mother and the child and the potential burden on society have to be weighed in the balance.
393 To conclude, perhaps I may add two points. We must continue to work towards the diminishing need for late abortions or any abortions. That must include better health education of our children in schools and better use of contraception. There must also be better access to early abortion if contraception fails. The National Health Service, as the evidence shows, is failing in many instances in that area, especially in certain parts of the country.
We must not forget that abortion must always be a last resort and that the mother herself must make the decision and must be sure of what she is doing, so far as she is able. She should be offered counselling, both before and especially after an abortion. It is a traumatic experience which she should not enter into lightly. The right reverend Dr. Hugh Montefiore was involved deeply in the inquiry. In his article in the Observer last month he wrote that he had become more certain that a woman's choice must be respected. I believe that the report will help a very vulnerable group of women to make that choice wisely. I hope that the Government will give it a fair wind.
§ 12.5 p.m.
§ The Lord Bishop of Gloucester
My Lords, I intend to confine my contribution to the debate to one point of principle which I believe is the basis of the report of the Select Committee. I am well aware that the whole topic is full of complexities. As the first member of the Select Committee of your Lordships' House to speak in the debate, as well as one of the last to join, perhaps I should begin by paying a tribute to the chairman of the committee, the noble and learned Lord, Lord Brightman. He conducted our proceedings with skill, fairness, courteousness and clarity.
If, as we hope, our report is of some use to Parliament and the nation in their consideration of abortion, I should like to stress that it was never in my mind that we were doing more than providing a tool to assist in wider debate. I believe that we should also pay a passing tribute to the right reverend Dr. Hugh Montefiore, through whose initiative the Bill was first brought before the House. I am only sorry that he is not here to argue the case.
The Bill is based on the principle, clearly enunciated by the right reverend Dr. Montefiore in his evidence to the committee, that as soon as any fetus is capable of being born alive, it should not be killed in the womb. I believe that that principle decisively informs the thinking and conclusions of the Select Committee, despite its recommendation that the Bill itself should not proceed and despite the qualifications which it recommends to the straightforward idea that no abortion should be permitted after 24 weeks of pregnancy.
I believe that the qualification of an agreed basic principle has been characteristic of Christian thinking for a very long time in the whole area. The Patristic writers from Tertullian and Origen from the 3rd century onwards, have consistently condemned abortion as a form of homicide. However, in mediaeval times and even in comparatively modern times no precise agreement about the stage of 394 pregnancy at which the principle became effective has operated. In scholastic theology, it was the point at which the embryo was informed by a rational soul. However, that was some time between the 30th and the 80th day of pregnancy, and no universal agreement existed about precisely when it happened. In practice, it was, until recently, when the mother experienced the quickening of the child.
It seems that there has never been any precision in the application of the principle in cases where not to perform an abortion threatened the life of the mother. That has always been reckoned by many as a permitted exception. Nor has it been the principle in the cases most relevant to the work of the Select Committee where there is the likelihood of a seriously handicapped child being born. Those are exceptions, and have been regarded as such by many people for a long time.
Nevertheless, the principle still holds, and surely most people who adhere to a view of life deriving from the Christian tradition will accept it. In modern dress, it appears, for example, in the statement issued by the Board for Social Responsibility as recently as 1980. The statement reads:In the light of our conviction that the fetus has a right to live and develop as a member of the human family, we see abortion, the termination of that life by the act of man, as a great moral evil. We do not believe that the right to life, as a right pertaining to persons, admits of no exceptions whatever; but the right of the innocent to life admits surely of few exceptions indeed".The theory that a woman carrying a child should have total freedom from any moral constraint in deciding whether or not to have an abortion simply will not match up to that long-standing Christian tradition. I for one could never accept that abortion is a matter morally indifferent or that it would ever be, in any circumstances, other than a moral evil. The question is, is it sometimes the lesser of two moral evils and therefore the right choice?
To describe our recommendations as abortion on demand is surely very far from the truth. I believe the tenor of our argument moves in almost the opposite direction. The arguments justifying exceptions to the principle are set out in paragraphs 47 and 48 of our report. I hope and believe that it is true that we examined both our witnesses and our own minds with rigour to ascertain whether those exceptions stood up to scrutiny, and that the result of that examination is fairly expressed in our recommendations.
I hope that our modest piece of work will not be seen in any way as an attempt to pre-empt the wider discussion or to provide a final or complete answer to the question of possible reform of the 1967 Abortion Act. I for one believe firmly and devoutly that the Act needs amendment. I claim that, for many people, in dealing with the restricted area of the debate—pregnancies of between 24 and 28 weeks—we have managed to outline a workable principle on which the debate can be conducted and one which can attract the respect and attention of those who want to strike the right balance between the conflicting claims in this whole matter of abortion, namely, those of the mother, the community, and of the unborn child when those three appear to conflict.
I believe that progress is most likely to be made not by the assertion of one principle over all the others as 395 a kind of blockbuster, whether that be the claim to life of the unborn or the claim to freedom of action by the mother. Rather, I believe that we shall make progress by a sensitive balancing of one over against the others recognising that that balance may change with circumstance. For example, it is my belief that with the advance of the pregnancy the claim of the child to life increases and may well become stronger. But that claim is always there and is never to be disregarded.
I hope very much that the Government and others will find it possible to produce a positive response to this report in order to help that wider debate and to settle, at least for some time to come, what is one of the most agonising, sensitive and painful moral problems which our society has to face.
§ 12.13 p.m.
§ Lord McGregor of Durris
My Lords, although your Lordships' Select Committee was in no way concerned with the rightness of abortion as such but only with its propriety at a gestational age of more than 24 weeks, the subject matter of its report is still very difficult to handle calmly. The committee's chairman, the noble and learned Lord, Lord Brightman, has expounded lucidly and succinctly the conclusions of the committee which he guided and led superbly. I do not intend to traverse the general ground or to examine more than one of the reasons for its conclusions.
As a result of sitting as a member of the committee I read, occasionally rereading, a good deal of the literature on the subject. I therefore feel entitled to say that the committee's report is the best source available for the study of this intractable problem. I do not accept the view of the noble and learned Lord, Lord Rawlinson of Ewell, that the preparation and publication of this document was politically unwise and constitutionally improper.
When the task began I thought that nothing fresh or useful could be written. I was mistaken. The report assembles and analyses statistical data and examines an extensive body of evidence. It sorts out the tangled and intriguing history of the Infant Life (Preservation) Act 1929 which led to the 28-week ban on abortions by the law of England and Wales. As the Act did not apply to Scotland the committee had to study Scottish experience and consider whether or how a different legal history had affected medical practice there.
The report also assesses the nature and efficacy of the strict administrative controls exercised over abortion generally, and in particular over late abortions, by the Department of Health and Social Security. It observes that the evidence received from all sides:indicates that both the Health Departments and the medical profession have acted most responsibly … to limit the number of late abortions".Thus one document now draws together a range of considerations which have usually been discussed separately.
However, there is one consideration which is not discussed in the report but which is of great importance for any discussion of the report. Few 396 subjects arouse so much heat and anger and few produce so many assertions that go far beyond the evidence. The results of carelessness in handling evidence then come to masquerade as truth with all the assurance of established generalisations. A controversialist from another place even went so far recently as to assert publicly, and wrongly, that a recommendation of your Lordships' Select Committee could produce the result that:Perfectly healthy babies whose lives are at present protected by the Infant Life (Preservation) Act 1929 could in future be killed".Another present example of carelessness is in the misuse of surveys. One completed a couple of months ago presents generalised findings concerned with the attitude of British Gynaecologists and obstetricians to abortion. The findings are derived from a statistically unacceptable response rate of only 40 per cent. to a questionnaire sent to all of them. The report on the findings confuses the proportion of gynaecologists who responded and the proportion of gynaecologists in the whole country. It contains sentences like:The vast majority of gynaecologists (73%)".The relevant figure is in fact 73 per cent. of the 40 per cent. who responded to the questionnaire. In my view it is discreditable that the Gallup poll should lend its reputation to such practices.
That is not the spirit in which serious issues should be debated. At a deeper level it is plain that passion helps to debase the intellectual currency. Abortion touches deep social, moral and religious feelings. Christian opinion is very divided. It ranges from prohibition by the Church of Rome to the view of the Church of Scotland, which is shared by other Churches, that it should be recognised that freedom should be given to all to act according to their conscience.
There is no escape from the conclusion that people who are equally learned, equally wise, equally devoted to Christianity or to other faiths and equally concerned to promote the public good reached directly contrary conclusions from the same evidence. Much blood had to be shed before it was recognised that diversity need be no threat to political cohesion provided that an atmosphere of tolerance were maintained. Toleration is a hard virtue to practise when people have to cope with opinions that they may find repugnant or even revolting. Nevertheless, intolerance is destructive of democratic habits and procedures, particularly when there is no possibility of reconciling a conflict of opinion.
It is often difficult to measure majorities and minorities or to reduce public opinion on such an issue to quantitative terms. However, from the experience of the past 20 years I think it is reasonable to believe that a substantial majority of people are in favour of abortion even though some may be uncertain about the precise terms and conditions on which it should be available.
The Select Committee balanced the natural desire of the mother to protect her own health and decide her own needs against the duty of society to protect the unborn child, neither of which they regarded as unqualified. Your Lordships will recall that that passage was quoted by the noble and learned Lord, 397 Lord Brightman. However, I wish to draw attention to one tiny group of women of whom I have had direct experience in my capacity as president of the National Council of One Parent Families. It is a group which would suffer hideously if late abortions were eliminated. It consists of the very young who are often experiencing multiple social deprivations.
In extreme cases the national council has had to deal with pregnant girls aged between 12 and 14—on one occasion, I believe, with an 11 year-old. Dreadful though it may be, at that age pregnancy usually results from incest. Inevitably the victims suffer dreadfully. Their tragedy and the appalling damage that they suffer when they bear a child—to say nothing of the prospects for the baby—cannot be averted if late abortions are eliminated. These girls invariably present themselves late, usually from ignorance but sometimes from terror.
In a democracy majorities must not impose a tyranny upon minorities. Equally, a minority must not coerce a majority. We are dealing with a painful subject which can cause misery to all the people concerned: mothers and fathers not be be; nurses and doctors who may have been involved. We need a settlement at least to reduce the suffering which results from anxiety which can be avoided.
It may be thought that those whose beliefs commit them to outright rejection of abortion are not the best guides to the circumstances in which it should be available for women of different but no less conscientiously held opinions. Why can we not leave the majority alone, with safeguards for the public interest through the legal, administrative and medical controls which the report describes? After all, those people whose beliefs do not permit abortion are in no danger of being coerced to follow the majority. They are free to accept their own discipline or that of their Churches. For those reasons I echo the hope of the noble and learned Lord, Lord Brightman, that the report will contribute to a settlement for some years to come of what is a deeply divisive controversy.
§ 12.26 p.m.
§ Lord Butterworth
My Lords, does it not seem strange that on this of all days, Lady Day, so many of your Lordships should attend on a Friday in a Chamber which is always dominated by the male to consider whether the legal rights to abortion so recently granted to women should be curtailed? I submit that the Select Committee of which I was a member has rendered a particular service in that it has brought together for the first time since the 1967 Act evidence on abortion. At this moment that evidence may prove to be of particular usefulness.
Once your Lordships' Select Committee had concluded that amendment to the law, if it were to be amended, should be of the 1967 Act and not the 1929 Act, it was inevitable that the basic issues that had been raised for us by the right reverend Dr. Hugh Montefiore should be considered. It would not have been proper to cease to consider them merely because he happened to choose the wrong legal vehicle.
The basic issue before the committee could have been encapsulated in a single question: if a woman 398 satisfies the statutory conditions for an abortion, other than an abortion undertaken to save her life, should the time within which she is entitled to that abortion be shortened? The time-limits within which an abortion may be performed depend not only upon the law but upon the practice of the DHSS, the Home and Health Department in Scotland and indeed the whole medical profession. I should like to give the House one example of that. As has already been explained, the 1929 Act introduced the presumption that a child is capable of being born alive if the pregnancy has continued for 28 weeks or more. However, there is no way of calculating accurately the length of a pregnancy. It is usually calculated from the first day of the last menstrual period. Even with the benefit of ultrasound scanning, such calculations are subject to a margin of error of two weeks either way.
We were told that mistakes of up to four weeks can easily be made. Doctors not unnaturally are unwilling to risk committing a criminal offence and will therefore not undertake abortion after the 26th week. Fear of prosecution has therefore reduced the maximum gestational period from 28 to 26 weeks and the control system—of which we have already heard something—under the 1967 Act imposes further important limitations. As we have heard, the Secretary of State, who is required to approve private nursing homes in which abortion takes place, has approved nursing homes generally only up to the 20th week of pregnancy and has given permission for seven private nursing homes to terminate pregnancies up to the 24th week. Nursing homes are inspected and those conditions are rigorously enforced. After 24 weeks abortions can be performed only in an NHS hospital.
In 1986, of the 172,000 abortions only 29 were undertaken after the 24th week. Of those no fewer than 22 were on ground 4: substantial risk that if the child were born the child would be severely handicapped. Although few in number, those abortions are important because a severely handicapped child can cause immense personal and domestic problems.
I am afraid that I must go into the technicalities for a moment at this point. Serious abnormalities are detected by three methods: aminocentesis, ultrasound scanning, and chorion villus sampling. Amniocentesis is the most widely used method for detecting fetal abnormalities. Amniotic fluid is abstracted, and this should not be done until the 16th week, because earlier extraction may be harmful to the unborn child. A culture must then be developed, which takes up to four weeks. Sometimes the culture does not take and a second one is needed, although if it fails that can generally become evident in 10 to 14 days. But I ask your Lordships to notice this. If there is a second culture the results will not be known until the 22nd or 23rd week, and after that some time must be given to the pregnant woman to reflect upon her problem and, with her family, to take a responsible decision.
It is true that chorion villus sampling is a quicker method of detection, but it is at present undergoing evaluation and is therefore not generally available in the country, althought it may become so within about 399 five years. It can be used up to the 12th to 14th week and gives an answer in a few days on certain defects—for example, Downs' syndrome—but it is much more limited than amniocentesis. It cannot detect structural abnormalities or certain abnormalities of the central nervous system. Therefore amniocentesis remains the main method and one has to have regard to the fact that if a second culture is needed the results will not be known before the 22nd or 23rd week. Ultrasound scanning is used to detect heart defects and these cannot be confirmed until the 24th week of pregnancy.
In general dramatic improvements in medical science have enabled more serious abnormalities to be detected. But they tend to come to light at a relatively late stage of the pregnancy. Clearly if all abortions were prohibited by law after 18 weeks many women who at present have a right to an abortion because of a substantial risk that the child, if born, would be severely handicapped would be denied the right. If a legal maximum of 24 weeks were to be imposed, many distressful cases which today would fall within the conditions would be denied an abortion. Moreover, the problem cases are not confined to serious abnormality.
Many of those who present themselves late are in need of especial consideration. The noble Lord, Lord McGregor of Durris, has already referred to the very young. They are also the socially deprived, women of low intelligence and those who are mentally handicapped. Rather than imposing an inflexible legal limitation upon abortion, these problems make it preferable to operate a system of professional practice which reflects the view of the great majority of citizens in this country. The present system which may be amended, as your Lordships' Select Committee has suggested, requires most abortions to be undertaken by the 24th week but leaves just that flexibility to enable responsible doctors to deal sympathetically with certain exceptional cases. The advantage of the present system is that, as medical science improves further, the practice can easily be changed and time limits varied without needing to change the law.
I should like to draw particular attention to one of our recommendations. It seems to me that since 1967 the medical profession has behaved so responsibly in this matter that it is our view that doctors who act in good faith, in accordance with the provisions of the Abortion Act, should be freed from the threat of criminal prosecution.
Finally, everyone is agreed that late abortions cause distress and should be avoided wherever possible. A proposal was made to us which, while it was judged not to fall strictly within our terms of reference, I would urge merits serious consideration. If abortions were to be made easier (for example, up to the 12th week) earlier abortions naturally would be encouraged and the number needing to be undertaken at a later stage would be correspondingly reduced.
§ 12.39 p.m.
§ The Earl of Longford
My Lords, the committee of which the noble Lord who spoke last is a most 400 distinguished member would no doubt wish to discover the opinion of the House about its proposals. The noble Lord said that it rendered a valuable service. If I may use the old phrase, "He would, wouldn't he?". Four out of the six previous speakers were members of that committee and we have three more to follow. I do not think therefore that we can view them as dispassionate judges of its value. I should be surprised if most of the rest of the Members of the House who propose to speak thought well of this report. However, that is as may be.
The document before us is surely most remarkable. There lies behind it a series of manoeuvres which I suppose are without precedent in this House. Before now I have said on behalf of the junior octogenarians that we regard the noble Lord Lord Houghton as our senior prefect. We set no limit to his ever-increasing ingenuity and versatility. When he attains his 90th year—and I believe that will come about very soon—he will assume total command of all of us.
§ Lord Houghton of Sowerby
My Lords, I am much obliged to my noble friend. I have been young in the past and I held the same views then as I hold now.
§ The Earl of Longford
My Lords, as a matter of fact I was coming to that. Let us look at the extraordinary history of this matter. I know that the noble Lord, Lord Houghton, was brought up as a good methodist. I do not know whether he would call himself a methodist in his latter days, possibly not, but he will be familiar with the parable of the unjust steward. The Lord, in the translation best known, said:The children of this world are wiser in their generation then the children of light".But in the translation which may be familiar to the right reverend Prelate I found this wording:The children of this world are more astute in dealing with their own kind than the children of light".That is how it can be translated. Whichever translation is preferred, both seem to be perfectly applicable.
We who have resisted the pressure of the noble Lord for more and more abortions have on this occasion certainly been outsmarted. Good luck to anybody of whatever age who can perform such an operation.
I shall briefly recapitulate the story. On 28th January last year the Bishop of Birmingham introduced a Bill called the Infant Life (Preservation) Bill. He said:My Bill has one moral presupposition. It is this. It is immoral and wrong to kill a child that is capable of being born alive".—[Official Report, 28/1/88; col. 1406.]I believe that the right reverend Prelate would agree with that formulation too. In practice, whatever the legalities, it was understood that it would have reduced the period of permissible abortions from 28 to 24 weeks. The Bishop of Birmingham on that occasion informed the House that he had taken professional advice and that informed opinion appeared to be on his side. My noble friend Lord Houghton, who I suppose over the years has done more than any man to make abortion freely available 401 in this country—I hope he accepts that as a compliment—moved the rejection of that Bill. No doubt he was, as always, acting from the highest motives.
On that occasion the noble Lord, Lord Houghton, expressed the hope that the Minister would come out clearly and boldly and tell the House the Government's position. After a number of speakers—including incidentally myself—had spoken on both sides of the argument the noble Lord, Lord Beaverbrook speaking for the Government, came out boldly and clearly to tell us the Government's position. This was just over one year ago. The noble Lord said that the Government supported the Bill—the Bill as it then was—that the Bishop had so ably introduced, though he agreed that some amendments might be necessary in Committee. But the idea of it being destroyed and something totally different being substituted never crossed the mind of anyone in the House on that occasion.
The noble Lord, Lord Houghton, was horrified. He said in his final speech:I am so shocked at the speech that the noble Lord, Lord Beaverbrook, made that I cease to be interested in anything that the right reverend Prelate now has to say."—[Official Report, 28/1/87; col. 1450.]That was his attitude and he was indomitable. Though he appeared to have lost that battle, he certainly did not agree that he had lost the war. We all know what happened after that. The Bishop unfortunately retired. He is very much missed in this House. A general election intervened.
When the dust had settled we found the noble Lord, Lord Houghton, the declared enemy of the Bill, coming out with a suggestion on 22nd July that the Bill should be given a Second Reading and that it should move forward to a Select Committee.
I am sure that in the whole 750-year history of this House—perhaps I should not mention that I have written a history of this House which is just completed—there has been no such turnabout as was brought about on that occasion. Some may think that it is a healthy development and some may not. But it is quite surprising. So the committee was duly set up. The noble and learned Lord who chaired the committee spoke, if I may say so respectfully, with a certain naivety that I do not associate with judicial rulers. He said that of the nine members, six were apparently not connected with the subject, three were connected but they had agreed to set aside all preconceptions. These three all belonged to what I venture to call Lord Houghton's minority group. There was none from the majority but three from the minority who had seen that this House had a majority when it came to the vote. Does anyone seriously believe—the noble and learned Lord who chaired the committee is a very intellectual man—that my noble friend Lord Houghton would have been able to put aside his preconceptions? Just think of it, my Lords. It becomes a total absurdity. That is what the Select Committee members were asked to do. They agreed to put aside their preconceptions and enter this as though they had never had any connections with abortions before, but they were to approach it as fairminded and dispassionate people. I am afraid that 402 I regard that as a sick joke, although it was not meant as such by the noble Lord; the whole episode was a sick joke.
From there we proceeded and the committee reached its conclusions. Surprise, surprise; it reached conclusions which no doubt were entirely acceptable to the three very strong-minded, very experienced people who had put aside their preconceptions but who had somehow managed to recover them very fast and made sure that they prevailed. They decided that the Bill, to which the House had given a Second Reading, was quite inappropriate. They implied that there was something almost ludicrous about it and they reached that conclusion after what appears to have been very superficial discussions. One might have thought that would be all—they had done their work to kill the Bill and so on—but not a bit of it. They took new heart and decided to have a good go at the whole subject of abortion. I was impertinent enough to interrupt the noble and learned Lord, Lord Brightman, to ask him why the Select Committee considered that to be its task. He felt, with a glance at the clock, that the moment was not appropriate (which was one of the Committee's expressions) to answer that question, so it remains unanswered. I shall not attempt to add to what the noble and learned Lord, Lord Rawlinson, said with wonderful eloquence about the whole subject, but I feel sure that anyone who looks carefully at the report will be left asking how a committee came to conceive that as its duty. But it did. It decided not just to say that the Bill was inappropriate, but to remove such safeguards as existed under the Bill. It went to the opposite extreme to the view held by the Bishop of Birmingham. Over the past 24 hours I have tried to talk to the bishop on the telephone but his telephone has been engaged—I do not know why. I have not been able to speak to him so I do not know what he thinks about the matter. However, he tried to reduce the period for abortion from 28 to 24 weeks and his efforts received a tragic outcome.
I shall not offer anything but brief general thoughts about abortion. I hope and believe that before long this House will receive a Bill in respect of which matters can be appropriately discussed. I have often been asked whether I am against abortion in all circumstances. When the 1967 Bill came to this House I was Leader of the House. I left my place and sat on a Back Bench from where I spoke and voted against the Bill. I said then, as a I say now, that I can imagine circumstances in which abortion would be justified. I have said that for at least 20 years and many of the people I respect most will say the same. I do not believe that any moral principle applied to human beings is totally infallible and no exceptions can be found.
I regard the 1967 Act as having produced great evils and having made abortion on demand available to all those who know where to look for it. Soon after the Act was passed I was running a small youth centre. A young woman came in. She wanted an abortion and was under the impression that it was available on demand. I asked why she wanted it and she said that she wanted to go to Austria for winter sports and that she was in a hurry. I said, "I am afraid that you will have to talk to your doctor". I have no 403 doubt that the Bill has produced great evils along with some good. The bishop said that the Board of Social Responsibility has described the Bill as a moral evil and I perceive it as being so. I hope that David Alton's Bill will come to this House and will do something to limit the evil.
§ Viscount Craigavon
My Lords, before the noble Earl sits down—he spent most of his speech shooting the messenger of this report—can he say whether he is in favour of the Montefiore Bill proceeding in this House, because that was the impression he gave? The report of the Brightman Committee gives closely reasoned arguments in respect of the defects of the Montefiore Bill. Therefore the noble Lord, Lord Houghton, and his supporters were right to refer the Bill to a Select Committee and, in their wisdom, the House and the Government have come to the right conclusions through the committee.
§ The Earl of Longford
My Lords, I am not sure whether I have understood the noble Lord's question. He may be aware that I voted for the Montefiore Bill, and I should still be in favour of it if it were before the House. I do not know whether the noble Lord expects me to be convinced by the very superficial reasoning—if I may say so with respect—that leads the committee, whose composition was distinctly unbalanced, to decide that the Bill was totally inappropriate after this House had decided that it should go forward.
§ 12.53 p.m.
§ Lord Hunter of Newington
My Lords, I should like to pay a tribute to the noble Earl, Lord Longford, for his gifts as a historian. I have recently read his book about Abraham Lincoln which I enjoyed enormously, and I took the trouble to say so. I do not know whether I should congratulate him, but he has given me the impression that he has taken rather lightly a great many of the serious, well thought out recommendations contained in the report because he has made no reference to them. It should be a technicality because I know nothing about the relationship between Second Reading in another place and what has happened in this House.
I joined the Select Committee rather late, as did the right reverend Prelate the Bishop of Gloucester, from whom I have learnt a great deal. However this debate gives me the opportunity to comment on the committee's earlier activities during which the main bulk of the evidence was taken. I came to the view, as did the right reverend Prelate, that there had been a careful assembly of the evidence. Its approach has been impartial and objective, producing a report of a quality which has not been seen for many years in this much discussed and controversial field. The combination of firmly held views within the committee, some of which the noble Earl, Lord Longford, made reference to, tempered by the views of others, tempered by the evidence which it studied, 404 has produced the report now before the House. I believe it to be worthy of serious study.
As is totally appropriate to a newcomer to the deliberations but with a modicum of medical knowledge—I am not an obstetrician—I should like to make a few remarks about medical matters. I believe that the attitude of the medical profession has been highly responsible. The bulk of the evidence has shown what has been possible, what is possible and what might become possible. Some things change; modern technology changes and reasons change. I should like to give the House one example of change over the past 20 years. The time that respiration is established in the newborn baby occurs at a specific time during development. The occurrence of movement or heart beat before that time—sometimes weeks before—has produced so much heart rending and confusion. One has seen many video films. Before it breathes sufficiently to maintain an independent existence, the child may move but it is not capable of being born to an independent existence. Modern technology has made it possible to save many children when breathing has barely started. However, the limit may well have been reached somewhere between 23 and 24 weeks. Unless the lungs begin to respond the child is incapable of living.
In two important medical research areas progress is occurring with benefit. Animal experiments are totally inappropriate in this field. The first area is in pre-embryo research. The second area, to which the noble Lord, Lord Butterworth, has referred, is between 15 and 20 weeks of pregnancy when it is possible to carry out an increasing range of investigations initially concerned with the question of a healthy normal child. I believe that the medical profession feels strongly that this must continue and that the public wish it to do so.
If at this stage there are adverse findings it must be possible for the mother to decide about the future, having received advice. Some aspects of that are far from easy. A good illustration which has already been given is the difficulty concerning spina bifida. The child may be deformed but perfectly normal mentally. The health of the mother and the normality of the child must be considered during this critical stage of development.
As the noble Lord, Lord Butterworth, has said, the case must be carefully analysed and documented. For reasons which have been given it is sometimes not possible to obtain the results before 20 or 22 weeks. Any idea of arbitrarily moving back that date to 18 weeks seems to me to be without any scientific support. After that period—22 to 24 weeks—it is right that the Abortion Act provision ground 3, the health of other children, should no longer be an indication for abortion. I think, as has already been our experience, that this particular indication will be debated widely in your Lordships' House—when should the consideration of other family be an indication; not after 18 weeks.
There are always difficulties. The noble Lord, Lord Rea, has referred to some of them. There is the case of the menopausal woman who does not realise she is pregnant and is already a grandmother; it does happen. The committee considered this most 405 carefully. It did not think that further restrictions should be indicated but feels that a change of this kind could be well managed by the profession and the Department of Health with its regulations and not by legislation.
The last point I mention is the availability of abortion services within the National Health Service. This is patchy. The evidence clearly shows that there are large area differences, and these are due to a number of reasons. One reason is the view of the doctor and the distress of nurses. Patients have to go elsewhere. Some staff are totally opposed to performing abortions. Sometimes there is a shortage of resources. This has resulted in these delays which create the late abortions which everyone agrees should be minimised. This is an area where the Government, through the National Health Service, have undertaken to provide a satisfactory service within the law. It might be possible to contract out to the private sector with procedures which continue to be controlled by the DHSS.
We must find additional resources in nursing staff and others for the development of intensive care units for children and the training of nurses. I believe that the same arrangement could be made to have sterilisations carried out in private hospitals where medically desirable. I ask the Minister a question about this but I do not expect an answer today. I only ask that this possibility be examined. It could be an important area of collaboration between the NHS and the private sector.
§ The Earl of Perth
My Lords, before the noble Lord sits down, I want to ask him and the House as a whole whether it is appropriate to discuss such matters as 18 weeks or 24 weeks when we have knowledge that very shortly a totally different Bill is coming to this House. I fully understand part of what is going on, but I wonder whether it is appropriate today to debate such an issue?
§ Lord Hunter of Newington
My Lords, in reply to that, I am guided by the opinion of the Leader of the House.
§ 1.2 p.m.
§ The Duke of Norfolk
My Lords, I was one of your Lordships who voted for the Second Reading of the Montefiore Bill. I understand that for various procedural reasons such as the fact that an election intervened and so forth that Bill is now finished and is a dead letter.
However, let me look at the present situation in this country. There were 172,000 abortions in 1986, which is the last year for which there are figures. In some EC countries abortions are not allowed beyond 10 or 12 weeks after conception, so no fewer than 24,509 overseas women came to this Kingdom to seek abortion. Almost 90 per cent. of abortions are carried out, as your Lordships have already heard, under statutory ground 2 of the Abortion Act 1967; that is, that the continuation of pregnancy would involve physical or mental injury to the mother. That is virtually abortion on demand. I deplore that, many 406 of your Lordships deplore it and a great many people in our country deplore it.
I understand that the David Alton Bill, which limits abortion to up to 18 weeks, is unlikely to pass in another place. I was told that only the other day. In spite of what I read in the Daily Mail today, I understand that a Private Member's Bill in the other place does not have any chance of succeeding. Therefore, I remind your Lordships that the Government, when the Montefiore Bill was being debated, said that they would give it a fair wind at the conclusion of Second Reading. I urge the Government, and I urge the noble Lord, Lord Skelmersdale, to do this when he sums up at the end of the debate, to tell me some method whereby a Bill could be introduced that will succeed here and in the other place—I understand that it must be a government Bill to succeed in the other place—to limit abortion to something like 24 weeks. That would fit in with the speech of the right reverend Prelate, who also deplores the general custom of abortion in our country. Everything he said, if I may have the honour to say so, fitted in exactly with my feelings. Therefore, I urge the Government to do something constructive and to introduce a Bill which will get through both Houses of Parliament.
§ 1.8 p.m.
My Lords, it is with some diffidence that I rise to address your Lordships on this difficult, delicate and perhaps I might even say dangerous subject. However, I do so because, like the noble Duke, the Duke of Norfolk, and the noble Earl, Lord Longford, I am basically opposed to abortion because I equate it with killing. There must be many people in this country, quite apart from Catholics, who hold this view. I am prepared in certain circumstances to accept that abortion may be justifiable, particularly to save the life of the mother, but I do not feel that it is a universal panacea for coping with handicapped fetuses—and I shall deal with that later.
If one accepts that there is a divine purpose in life, it is surely arguable that abortion runs counter to this purpose. I know that Moslems—and I have studied Moslem theology in some detail—and Hindus also believe that. Several of your Lordships may have seen two very moving films about abortion: one is called "The Silent Scream" and the other "The Eclipse of Reason". These two films show abortion in all its gruesome and gory detail. Unfortunately, I was only able to see the first film. However, the climax of that film shows the forceps being inserted into the womb, gripping the head of the fetus and on its face you can see the silent scream. It is perhaps particularly significant that the doctor who made this film decided, after doing so, that he could never perform any further abortions. According to a very recent and revealing survey by an American, Dr. Willkie, the fetus can feel pain at 45 days. As it grows so the pain becomes more intense and lasts longer.
The second experience I had was in many ways more moving. Indeed, never in all my experience have I seen anything which moved me more. This was at the presentation of David Alton's Bill at the Royal Albert Hall about three months ago. The climax of 407 this presentation was the release from the roof of 2,500,000 tiny paper darts. Each paper dart represented an infant life which had been killed by abortion during the period since the passage of the Abortion Act 1957. I believe one must consider for a moment what would have become of these tiny lives had they been allowed to survive. This is a most important point. It must be emphasised that of this colossal total of 2.5 million, at least three-quarters and probably more could have survived. The remainder were aborted by reason of deformity.
Let us for one moment consider what all these little lives might have become. How many statesmen might there have been; how many doctors or lawyers? On the other hand, there might well have been criminals and beggars. One cannot go into that question. I believe everyone would agree that in this way a very large number of potentially useful lives were terminated prematurely.
There is one aspect of abortion which I do not think has been touched upon so far by any noble Lord, that is the trauma which is caused to the mother. I have tried to find statistics in Britain. Perhaps they exist and it may be that some noble Lords know of some. Some very interesting statistics have been produced by Dr. Willkie whom I quoted a little earlier. He has written to the effect that in one period of 35 months in the Cincinatti area of Ohio 5,620 persons were treated for deep depression, anxiety and stress. No fewer than 1,800 of those persons had had abortions. That is just about one-third. The point here—and I am sure there must be examples of this also in this country—is that the pain remains with the woman as a counterpoint for the rest of her life, even though it becomes blunted to some extent by the passage of time.
Reference has been made, and doubtless it will be made again by subsequent speakers, to the need for abortion to stop the birth of deformed or diseased fetuses. Perhaps my noble friend Lord Hunter will confirm that I am right in saying that abortions are generally performed in the case of suspected Down's Syndrome or spina bifida. I should like to put to your Lordships that these handicaps, however terrible and however distressing they may be can be overcome. I believe that all of us can think of people who have had children with these handicaps and who have overcome them in the most marvellous way. They have looked after their children in the most wonderful and maternalistic manner. It has been a glorious triumph.
My own view is that these handicaps are sent to us as a challenge which can be overcome. May I express the hope that when your Lordships are examining this most interesting report, which is the result of such careful thought and study, the considerations I have just put forward are borne in mind.
§ 1.15. p.m.
§ Baroness Llewelyn-Davies of Hastoe
My Lords, I shall bear in mind the words of the noble Lord, Lord Denham, and speak as briefly as I possibly can. When we first started work in the Select Committee it seemed a formidable task to be concerned for a long time with so tragic a subject, one which was 408 complicated in so many different ways with legal, medical, personal and intensely emotional questions and surrounded by an atmosphere of passionately held beliefs that were diametrically opposed to each other. I knew quite well that many organisations considered people who supported abortion, even under the terms of the 1967 Act, to be unethical, uncaring of human life and almost to have immoral views. It seemed a difficult and an unpleasant job, but it forced one to think searchingly about the issues and one's own particular reactions to them.
I am sorry that the noble Earl, Lord Longford, is not here to hear me say this. I was astonished to hear him describe the report as superficial. I hope he will forgive me for saying so, but it was owing to the brilliance of our chairman in unravelling the morass of statistics, legal and medical problems and three complicated Acts of Parliament, that we were able to deal with the mass of evidence and whatever the noble Earl, Lord Longford, may think, eventually we were able to agree a unanimous report.
The noble and learned Lord, Lord Rawlinson, is also not in his place. I hope he will forgive me, but I thought his the most astonishing speech I have heard during 20 years in your Lordships' House. I believe he entirely misrepresents the role of your Lordships' House in Parliament as a whole. If later on your Lordships have to consider a Bill from another place, I hope that the facts presented in the report, researched as they are by the Home Office, the Ministry of Health and many expert witnesses of different views, will be most useful to this House. I hope they will be useful particularly in clearing up some very incorrect impressions which have been bandied about in the media. For instance, there is the suggestion that Britain is the abortion centre of Europe. I believe that is what the noble Duke may think. In fact his quoted figure of 24,000 abortions on foreign residents accounts for only 14 per cent. of the total abortions. That is one of the misconceptions that go around.
The Bill deals principally with late abortions. Among all the evidence we received about them I believe the committee was very much impressed by the clear and professional evidence from the Royal College of Midwives. We all know that when infants are being considered midwives are perhaps the most caring of all the nursing professions. Indeed, the right reverend Prelate the Bishop of Gloucester observed that where others speak about "the fetus" the midwives spoke consistently about babies. The witnesses were asked whether the college thought that it would be against the interests of women, and of society, to have an absolute ban on abortions at, say, 24 weeks. Their answer was that they were against such a ban. Women should have their case looked at individually. In their own words, they thought that it would be "a terrible shame" to introduce such inflexibility into the system. They said:If we look at what is happening, doctors are now making very responsible decisions in terms of late abortions. … It is a far more sensible situation to allow for clinical judgments to be made in individual cases … rather than for reasons that are to do with some law or statute".There are different reasons why women have to face the problems of a late abortion. Perhaps the most 409 tragic is when they arc found to be carrying a severely abnormal child. On page 82 of the report there is a letter from one of these mothers which I think your Lordships would like to hear, though in a shortened version. She wrote that, after being infertile for years,to our absolute joy, I became pregnant again at last. Disaster struck … when I was 27 weeks pregnant. … My blood pressure has gone up and I had a scan. … The doctors took a lot of still scan pictures for the paediatricians … and they had to tell me that there was no hope for my daughter. I was offered a termination. If Mr. Alton gets his way I would have had to continue with my pregnancy for another 13 weeks, all the time knowing that my baby was not viable … I was induced to labour … but, of course, my much wanted, much loved baby daughter was born dead and hideously deformed. I don't believe doctors abort needlessly".Fortunately, few women experience late abortions, but that letter shows how traumatic it must be.
Bishop Montefiore who first introduced this Bill wrote an article in the Observer, as my noble friend Lord Rea observed. He wrote as follows:Since England will continue to have an abortion law, it would be logical to permit women to decide for themselves about an abortion in the early weeks of pregnancy".That was not in our terms of reference. He continued:Even if this logic is impeccable, would not the result of legalising the right of a women to make her own decision be perceived as an encouragement to terminate her pregnancy? I doubt it. Most women want babies".I believe that to be profoundly true. No woman can easily contemplate abortion at any stage, but I believe passionately that women have a right to a legal termination under the terms of the 1967 Act. After absorbing all the evidence and the official and medical facts given to the Select Committee, I believe that the conclusions reached by that committee, and our recommendations, to be right, just and humane.
§ 1.23 p.m.
§ Lord Mellish
My Lords, the Government Chief Whip will be delighted to know that I intend to comply with his request and make my speech reasonably short. This is an emotive issue. No matter what somebody says, somebody else will object to and oppose it. I hope I shall be forgiven for starting off by saying that one cannot apply logic in this case. One cannot say, "This is a certain fact and this is how it shall be". Eminent lawyers and doctors are divided on the issue. I admit that I speak with some prejudice in this matter. I am attached to a Church which throughout its existence has believed in family life. I have been brought up to believe that this is perhaps the most important aspect of living. I have also been brought up to believe that once a child is conceived that is a life, and that to take it away is a very serious matter indeed. There have to be grave restrictions.
My noble friend Lord Longford had some fun with my noble friend Lord Houghton of Sowerby. I happen to know the noble Lord, Lord Houghton, very much better than the noble Earl, Lord Longford. I must put it on record that I find him a little illogical. I know that throughout his life he has been opposed to any restrictions on abortion; but throughout his life too he has been opposed to capital punishment and to society taking action of itself which causes death. He has been a great humanitarian. However, on abortion he does not mind or give a tinker's cuss whether a child is aborted 410 within a matter of days of conception or right on the last day before birth. I find that illogical.
I thought that the noble and learned Lord, Lord Brightman, who put the case for the Select Committee, did so brilliantly. I have no complaint against him at all. I do not share the view of the noble and learned Lord, Lord Rawlinson, who objected to the report being discussed. I do not see why matters such as this should not be debated all the time. One can go through the noble and learned Lord, Lord Brightman's report and pick out many examples of there being another view. I must say that the noble and learned Lord put the case very well indeed.
I should like to refer to the remarks of the noble Lord, Lord Rea. The noble Lord spoke from his great experience about how family life can be destroyed, and referred to the impact of a deformed or mentally-handicapped child on the life of that family. That was his point of view. I want to put to him another point of view. I was a fairly active Member of Parliament in the other place for 37 years. It became part of my world to take an interest in life around me and in the activities of various organisations, most of which I found to be superb. This had nothing to do with religion at all.
One of the societies with which I linked up worked with the mentally handicapped. I used to attend its meetings regularly. I met the parents, in particular the mothers, who brought their children to the functions. I do not deny that, as the noble Lord, Lord Rea, said, I started off on the basis of feeling almost ashamed that there were children there who were so mentally defective and appeared to me to be so useless that they should not have been allowed to be born. I learnt the hard way. I went to those meetings again and again. I discovered there the love and affection felt by the parents of those children. Who are we to say that it is medically not right to have such children? I spoke to the parent of one particularly handicapped child. I said to her, "If you had had the chance of an abortion, would you have had it? Would you have taken the life of this child?" She said, "Mr. Mellish, I want you to know that this child has brought me and my family happiness and joy the like of which I never realised existed". She had three other children who also adored the child. But here we are coldly and calculatingly deciding whether that child's life should be taken away.
§ Lord Mellish
My Lords, with the greatest respect, I must say that the noble Lord made the point—a very strong point, I thought, about how a child that is born deformed, either mentally or physically can bring so much unhappiness upon the family. If he cares to read through his own speech he will see that 411 that is what he said. In fact, he made it a major point as to why there should be abortion and why the argument about 24 weeks or 28 weeks was irrelevant. I am merely putting the opposite argument: that children, even though they may be deformed, have brought great joy and happiness to many families. It is but a simple point, although I do not expect the noble Lord, Lord Rea, to agree with me. That is my point of view based on the experience that I have had.
The noble Lord, Lord McGregor of Durris, mentioned unmarried young girls and said what a tragedy their situation was. There they were not knowing, until a later time, that they were in fact pregnant and that this was indeed a tragedy. I do not quarrel with his understanding or the way he put the case, but I must, however, put this to him. I have never said—like those who think as I do—that abortion is wrong or that there should be some types of abortion. That is why I have always supported—I did in the other place—the previous Bill which I think, allowed, 26 weeks. I supported it at that time, and I support it today. Furthermore, should the David Alton Bill come to this place, I shall also support that because I believe, with the greatest of respect to the noble Lord, Lord McGregor of Durris, that those people to whom he referred should by 18 weeks know whether they are pregnant. I think that appropriate advice should be given to them, and if abortion is thought necessary then they should have it.
I conclude on this note. The Motion before us today, as I understand it, is that we take note of the Select Committee's report. Of course "take note" is a lovely term; you do nothing about it, you just listen. However, I must tell the noble and learned Lord, Lord Brightman, that had the Motion been that we should approve the report, I should have voted against it. I believe that the report, irrespective of what he may have intended, says that there shall be abortion on demand. Therefore, on that principle, I object to it.
§ 1.35 p.m.
§ Baroness Faithfull
My Lords, I am delighted to see that the noble and learned Lord, Lord Rawlinson, has returned to his place. I wonder whether I may read to your Lordships—I hope I shall be forgiven for so doing—page 3 of the report:The Committee was appointed on 9 November 1987 to consider the Infant Life (Preservation) Bill".It goes on to say that the committee were in effect successors to a committee appointed on 5th March 1987 to consider the Infant Life (Preservation) Bill introduced by the then Lord Bishop of Birmingham.
The work of the earlier committee was cut short by the dissolution of Parliament in May after they had received written evidence from 51 persons and bodies and oral evidence from seven such contributors. The Alton Bill was introduced into the other place on 28th October last year and the committee in this House was, so to speak, reconvened and appointed on 9th November 1987.
I should like to make two points to the noble and learned Lord, Lord Rawlinson. First, it is true that the committee was appointed after the Alton Bill was 412 introduced into the other place, by only eight days. When one considers the number of people who gave evidence at an earlier stage at the previous committee, I submit that this House was right to continue with the Bill. Surely it would have been a grave discourtesy to all those who had given evidence at the earlier stage to have disregarded all that they had said.
§ Lord Rawlinson of Ewell
My Lords, I thought that I had made it perfectly clear to the House that, while I thought it essential and good that the data should be provided, what I objected to was—in the knowledge that a Bill was going through another place— the idea that we should come to specific conclusions about such a matter; namely, the date of termination. The point I was making was that I thought it was politically injudicious to do so.
§ Lord Denham
My Lords, I should say to my noble and learned friend that although it may be politically injudicious, it is not procedurally incorrect.
§ Baroness Faithfull
My Lords, I must say that if I had thought that it was injudicious I should have asked myself what I should do. Should I have gone to the noble and learned Lord, Lord Brightman, and said, "I cannot now sit on your committee"? Or, should I have gone to the Chief Whip and said, "I wish to withdraw"? I took neither course of action, nor did any other member of the committee. I submit that we were right to continue with it in the interests of all those who went to such great trouble to give their evidence.
Many noble Lords have already spoken on the subject that I should like to speak on, so I shall try to be brief. However, I speak perhaps from a slightly different point of view, that of a social worker. The noble and learned Lord, Lord Brightman, when introducing the debate, made it quite clear that the Select Committee on the Infant Life (Preservation) Bill stated that there should be no abortions after 24 weeks, except in three cases. First, if the life of the mother is at risk; secondly, if abortion is essential to preserve the health of the pregnant woman and, thirdly, if there is a substantial risk of serious fetal abnormality. He said that in those cases there should be no maximum gestational period of abortion.
I shall speak on two issues: the substantial risk of fetal abnormality and, aligned to that, the position of vulnerable girls and women who after 24 weeks are found to be carrying an abnormal fetus—that matter has been mentioned by nearly every Member of your Lordships' House who has spoken. It was said by at least one organisation, and I point to page 179 of the evidence:We are absolutely opposed to abortions and this applies to children who are thought or discerned to be handicapped. We feel and we think very strongly that handicapped people have as much a right to live as the rest of us".That is a point of view which one can respect. I personally abhor abortions but, in those cases, is it wise, humane or right that such an issue should be determined by statute? I must say that to that extent I agree with the noble Lord, Lord Mellish.
413 I also agree with the right reverend Prelate who said that none of us like abortions, much less the doctors, nurses especially and certainly those of us who are social workers. However, in the case of a woman who after 24 weeks finds herself carrying a baby which is likely to be born abnormal, I believe that the final decision should be hers. As the noble Lord, Lord Butterworth, has said, this is Lady Day. I suggest that we should not take away from the mothers the responsibility of what they should do in those circumstances.
I have known some mothers, as indeed has the noble Lord, Lord Mellish, who, after knowing all the facts as explained to them by the doctor, have chosen to bear the child however serious the abnormality. Some such mothers are mature and willing to carry the responsibility in the knowledge that the choice was theirs, and theirs alone.
There are also mothers whose religious beliefs do not permit of an abortion, and this principle also should be respected. However, there are other mothers, feckless and unimaginative, who will refuse abortion. On the other hand, there are women who have insight into their own capacities—both physical and emotional—and into their family circumstances, who know that they will not be able to give the quality of life to a handicapped child which such a handicapped child has the right to expect. In such cases, is a mother to be deprived by law of choice? In all those instances surely the decision must lie with the mother who is to bear the handicapped child, whether it is before or after the 24 weeks.
The second issue relates to vulnerable girls and women. Where there is evidence of serious fetal abnormality some pregnant women do not seek medical advice until after 24 weeks. The noble Lord, Lord Hunter of Newington, pointed out that some older women think that they are experiencing the menopause when in fact they are pregnant. Schoolgirls are vulnerable. They are very young girls. I am reminded that in the 1930s I was one of the social workers who dealt with the Alec Bourne case when a girl was sexually assaulted by soldiers and he carried out an abortion. I have had experience of and have had to deal with many 12, 13 and 14 year-olds. They did not have an abortion forced upon them. They were given the option and I think that that was right.
The committee agreed that in those instances where there is a substantial risk of fetal abnormality there should be no maximum gestional period for an abortion. I hope that the House will realise what deep thought the committee gave to this matter. We pay tribute to the chairman, the noble and learned Lord, Lord Brightman, who took us through the complicated legal issues as well as the human ones. We were grateful to all those who gave evidence to the committee, thoughtfully and with deep concern. We owe them a great debt of gratitude.
§ 1.42 p.m.
§ Lord Robertson of Oakbridge
My Lords, with great respect to the deep thought that went into the report, the clarity with which it was presented, and the speeches of the many noble Lords who spoke before me, I believe that we are in danger of 414 overlooking the fundamental nature of the change that is proposed in the report. Whatever the merits or demerits of our existing abortion laws, a cardinal principle is that abortion should not be allowed where the child is capable of being born alive. The Select Committee report is wrong to depart from that principle.
The 19767 Act, taken with the 1929 Act, recognised the principle by effectively setting a limit of 28 weeks. It should be emphasised that 28 weeks is the upper limit. The point at issue is that the child is capable of being born alive. That may he before 28 weeks. Because of the advances in medical techniques, some babies born earlier than 20 weeks survive.
The Bill sponsored by Bishop Montefiore attempted to maintain the principle that, when a baby could be born alive, no abortion should take place by reducing the limit to 24 weeks. The Select Committee's report would sweep away that principle and would open the door to abortion on demand up to birth. In doing so, it would take us one step further on the pathway to death which, if we are not careful, will lead to the killing of defective newly born babies, to voluntary euthansia, then to the compulsory euthanasia of the senile or those with incurable diseases, or anyone whose continued existence was no longer convenient.
There is a fundamental difference between inducing a premature birth to save the life of the mother and a late abortion. In the former case, the aim is the child's survival. In the latter, it is its destruction. That raises the important point that with a very late abortion someone has deliberately to kill the child by poisoning it in the womb or denying it the means of life after it has been born.
It is no wonder that the vast majority of gynaecologists who replied to the Gallup survey supported their college's call for an upper limit of 24 weeks. No one should be put in the position of having to kill a child that is capable of being born alive, let alone one that has been born alive. That is what would happen if the Select Committee had its way. I therefore utterly reject its report.
§ Lord Hailsham of Saint Marylebone
My Lords, before the noble Lord sits down, although it is inappropriate in this debate for an intervention to take place, I think that I must say to him that what he says to be the law of England is not the law of England and never has been.
§ 1.45 p.m
§ Lord Houghton of Sowerby
My Lords, I had hoped that by this stage in the debate some signs of a consensus on the Select Committee's report would have begun to show through. Noble Lords who have spoken warmly in support of the recommendations contained in the Select Committee's report have, in the main, been members of the Select Committee. That shows that those who were members of the Select Committee came to the conclusions of the Select Committee. We found a new unanimity there which before we began we thought would be difficult to find.
415 The most remarkable thing about the Select Committee was that it represented different points of view in your Lordships' House. Some views were preconceived, others were unknown. We all admired the application of the chairman, the noble and learned Lord, Lord Brightman, to his task, because when he began we knew that he knew very little about the subject and that he had a lot to learn. Those of us who to some extent had some preconceived views on the subject discovered from the evidence to which we listened that we had a lot to learn. Never before in the history of the abortion law has such a volume and wealth of evidence been given on the 20 years' working of the Act in the respects in which we were interested. That is the value of the report.
If a Bill comes from another place, it would be much better that the revising Chamber should be qualified to revise than to be in the same position as Standing Committees of the other place which have no time to consider what they are doing because they are fully occupied with the politics of the situation. In a sense, we have taken time by the forelock. When we were reappointed, I do not believe that the Private Members' Bill ballot of the other place for this Session had revealed that a Bill would be coming. It had not been introduced into the other place when we resumed our second period of service. The Alton Bill was published a few days before the Christmas Recess. We were working on our second instalment of this matter. That is my first point.
It would take too long to examine the constitutional issues put forward by the noble and learned Lord, Lord Rawlinson. A good deal of what he said was dealt with by the Chief Whip's intervention a few moments ago. The action was not procedurally incorrect; whether it was judicious depends upon the circumstances. One could defend finishing a job which was begun long before any question arose of a further Bill from the House of Commons. It was this House that reappointed the Select Committee. It was the then Leader of the House, Viscount Whitelaw, who fully acquiesced in the resumption of the work of the Select Committee which was cut short by the general election. So we have done a job that had to be done sometime by somebody if this matter were to receive serious consideration at this stage in the lifetime of the Abortion Act. I do not think that we need reproach ourselves for that.
Also, if I may say so with great respect, probably the noble and learned Lord, Lord Rawlinson, has not appreciated the new sense of identity which is being spread abroad in the House. We are not so timid as we used to be. We claim a life of our own in certain matters. We reserve the right to tell the House of Commons to think again. Only the other day we reserved the right at least to debate a Motion to tell the House of Commons that we insist on what we were doing. This House has not lost its self-respect. The noble and learned Lord, Lord Rawlinson, is rather suggesting that the moment the House of Commons sets about a task we should immediately bow to its superiority in the bicameral Parliament. We cannot have that.
The noble Earl, Lord Longford, has his own line in mischievous humour. We are used to it, we enjoy a 416 good deal of it, but sometimes when it becomes a little personal we cannot enjoy the fun. However, when he is not up to mischief in your Lordships' House he is writing it down in his book. We enjoy reading that too, but we have to pay for it!
The noble Lord, Lord Butterworth, made the substantial point of this debate, that it is a question whether, and if so by how much, the limits of gestation for lawful abortion should be lowered. That is the issue before the House as a result of the Select Committee's report. I think we realise that, in considering shortening the period of gestation for lawful abortions, we must have regard to two important matters. One is that the longer the pregnancy goes on, the greater the trauma for the mother. The more serious the operation, probably the more grave are the consequences mentally and physically which the operation may produce. That is one side.
The other side is that the longer the pregnancy, the nearer to full term the child in the womb is becoming. I think it is only natural that we should consider the child reaching an advanced stage of pregnancy rather more deeply than the fetus in the early stages of its development. In shortening the period, we have to accept one firm principle, which is that when it is a case of saving the life of the mother, the mother's life has priority. I do not know of any abortion law anywhere in the world where the mother can be killed in order to save the baby. Where there is any destruction to be done—and it is lamentable when it is needed and dreadful to have to do it—it is the child that has to be destroyed to save the life of the mother.
Then there is the lesser degree of harm and danger to the mother which falls into our second category. Here one has to consider a few qualifications, judge the degree of likely injury to the mental or physical health of the mother, and have stronger regard to the interests of the unborn child. In our proposals we have not relaxed that condition; if anything we have strengthened it. We have said that where an abortion is undertaken because of the risk to the physical or mental health of the mother, but not to the extent that her life is in danger, we require doctors to certify that the abortion is essential.
If one asks for the meaning of the word "essential", I think the answer is that we have to leave it to the medical advisers and those who will be studying the particular case. They know what the word "essential" means and they will have to apply it to the particular case which they are asked to consider. Any attempt to go further than that will lead to a great deal of trouble. Bear in mind that the Abortion Act is the only Act of Parliament, so far as I am aware, which governs the clinical judgment of doctors in surgical operations. In guiding the hand of the surgeon or the medical man, the law will find great difficulty in defining its own purpose in intelligible form. There are some things which one has to leave to accepted standards of professional skill and integrity; it is for professionals to judge the issues before them in the light of the statute law which guides them in principle, and sometimes to some extent in degree. We have to accept their judgment which has been arrived at in good faith.
417 This brings me to the point made not only by the noble Earl, Lord Longford, but by the noble Lord, Lord Robertson of Oakridge, a moment ago. It is that, by dismissing the Infant Life (Preservation) Act from the scene of abortion, we have removed a safeguard in the Infant Life (Preservation) Act. That safeguard was that the Act comes into operation if there is the destruction of a fetus capable of being born alive.
However, I ask both the noble Earl and the noble Lord to study the full report of the Director of Public Prosecutions, published on page 168 of our Special Report (the first volume), which shows the futility of the Infant Life (Preservation) Act in this connection. Not a single conviction has been gained under that Act against any medical practitioner for the termination of a pregnancy. The only conviction which is recorded in the report in recent times relates to a dreadful case of a man who assaulted a woman by kicking her in the stomach, thus destroying the life of the child in the womb. But that was a criminal assault and it was not a lawful abortion. It was not even an unlawful abortion.
So I strip the sham away from the Infant Life (Preservation) Act as a safeguard in this context. The safeguard has to be in the abortion law. I think that it comes by the combination of two elements: first, strengthening the direction to the doctors, saying that the word "essential" means essential. That is the judgment they must exercise in the case of the classification of the physical and mental health of the woman. The second is that they have to use their best judgment in this matter and to make sure that they have the best judgment available in order to decide this delicate and difficult issue. It will be confined to consultants in the National Health Service. We are not putting this out to any commercial undertaking. I think that that is a safeguard. We have to go somewhere for the finality of judgment and authority, even in matters of this kind. I suggest that that can only come about by the method that I believe the Select Committee has arrived at with great wisdom. I sincerely hope that if the time comes when we have to consider legislation these points will be borne in mind.
I conclude with an appeal. I hope that the time will soon come when we shall see an end to this sessional lottery of Bills on abortion. Every Session we wait to see whether there will be another Bill on abortion coming out of the legislative lottery of Parliament. So far we have had 10 attempts and another one is afoot.
I urge the Government to use their influence to bring this to an end in the interests of Parliament, in the interests of the humanity involved in this problem and in the public interest. Look at what the nation has had to put up with in recent weeks on the subject of abortion! Look at the daily newspapers. There is more to come. Shall we get the product of another quarter of a million thrown into the pool of the antiabortion lobby by some property developer? Are we going to be dependent upon the profits of such an undertaking to settle our moral issues? I urge the Government to take a hand and influence the course of events.
418 I hope too that the noble Lord, Lord Skelmersdale, who has to give an answer on the Government's present view on the Infant Life (Preservation) Act, will assure the House that they are not continuing to be wedded to the Montefiore Bill as they were when it received its Second Reading in the early part of last year. I hope that they will have regard to the criticism of the Select Committee and leave the issue open now in order to deal with the whole problem as it may arise in the coming months of this Parliament.
§ 2.22 p.m.
§ Lord Jakobovits
My Lords, with my maiden speech happily behind me I am no longer under the constraints which prevented me previously from speaking on controversial matters. I need no longer resist the temptation to do so.
I am glad that my inception as a full participant in what to me has been a most fascinating and revealing debate is on the subject of the inception of life itself, its sanctity and dignity, presumably the starting point for all other legislation concerned with transcendent values.
Specialising as I do in medical ethics, I read the report and have listened to the debate so far with particular interest. The debate is wide-ranging and apparently from what I can make out to some extent the House is divided in opinion on denominational lines within Christianity. Therefore perhaps it is just as well that I should add some thoughts from another perspective. I do so by trying to avoid reference to any of the specific issues already raised and instead focusing attention on what I believe are much wider moral issues facing society as a whole.
The tradition that I represent is fairly liberal on the subject of abortion. Judaism regards neither full human status as commencing from conception, nor the destruction of a human fruit before birth as murder. Nevertheless, we deem pre-natal human life as very sacred indeed, and would sanction its deliberate termination only in very exceptional cases of grave medical urgency, including some serious psychological threat, provided these indications are absolutely genuine and independently ascertained.
We are less concerned with the stage of gestation than with the motives; if the indications especially for the safety of the mother are urgent enough we may contemplate a termination even after 28 weeks, and if they are not compelling or purely social we would object even under 18 weeks. Obviously the objections increase with the development from conception to birth.
The report we are debating, in the context of existing and proposed legislation, raises several wider issues. We have heard a number of specific instances mentioned. Every one of them was exceptional. There was the case of an 11 year-old girl. There was the case of a menopausal grandmother. There was the case of an assault on a young girl by a soldier. Clearly these are highly exceptional cases.
Let me turn attention to the norm—the great majority of cases where abortions are carried out quite legally in this country. I believe that even worse than the law plainly permitting abortion on demand on social grounds is the law pretending to prohibit this but in practice using mental health as a legal 419 subterfuge to camouflage what the Prime Minister very recently in a different context so strikingly called "sociological alibis".
The official government statistics for 1986 tell us that out of nearly 135,000 legal abortions in England and Wales "with mention of a medical condition" almost 132,000 were registered as due to "mental disorders" ranging from "neurotic" to "personality disorders". Our population surely cannot be all that mentally sick or at risk!
Clearly in the vast majority of cases doctors resort to this euphemism simply because they would not otherwise remain within the bounds of legality. Some of the evidence in the report submitted to the Select Committee frankly admits this. For instance, the memorandum by the Royal College of Psychiatrists explicitly mentions "termination on medical and social grounds", while the memorandum by Dr. Barbara Jacobs likewise refers to abortions performed for "social reasons" or in "social circumstances".
Such a semantic abuse of "mental health" as a cloak for personal convenience or social preference perverts the intent of the law and imposes unacceptable forms of misrepresentation on doctors. It makes a mockery of the law itself and brings it into disrepute. The law should not encourage such terminological inexactitudes, to use another Prime Minister's celebrated phrase.
Wherever the limit is set, whether at 28, 24, 20 or 18 weeks, the opposition will always use the well-worn argument that a woman should have a right over her own body. That argument is reflected in some of the evidence given to the Select Committee. There is a double fallacy in this. First, the germinating life inside her is not exclusively part of her body; it is equally the flesh and blood of the father who sired it. Moreover, even her own body is not her property that she can dispose of at will. We are not the owners but only the custodians of our bodies, charged to protect and preserve them. The argument against arbitrary abortions has nothing to do with feminism or male chauvinism, and the public should be disabused of any such fallacious notion.
Above all, there is an overriding moral principle at stake here which is all too often overlooked. The common reasoning is that the alternative to legal abortions is to encourage back-street abortionists. It never seems to occur to our vociferous advocates of easy abortions that there is a third option to prevent unwanted pregnancies, and that is to train people to act responsibly, to exercise some self-discipline and to cultivate a moral conscience. Instead we are encouraging what I can only call a credit-card morality—enjoy yourself now and pay later.
It is an insult to the moral fibre of countless young people, and to the moral potential of all of them, to suggest they are bound to surrender to temptation and cannot resist it. I have the same complaint about the AIDS publicity campaign. Surely the only answer to the threat of infection is not the condom, as if self-control were no longer even an option which ought to be tried or propagated.
Finally, I miss two other basic considerations in the report. There may be numerous unwanted 420 pregnancies. However, there are fewer unwanted children. Once they are born, they often turn out to be the sunshine of their mother's lives or else of those desperately seeking children for adoption.
Again, particularly in this age of widespread violence, terrorism and war we should remember that any attack on innocent human life, whether on potential life before birth by abortion or on ebbing life before natural death by euthanasia, cheapens all life, erodes the reverence for it and diminishes the worth of all of us. The respect for all life must start with the beginning of every life.
§ 2.12 p.m.
§ Lord Craigmyle
My Lords, that was a refreshing speech from the noble Lord the Chief Rabbi and it makes me sorry that I was not in my place on the occasion of his maiden speech. My original idea in speaking today was to simplify matters a bit. I believe that what the right reverend Dr. Hugh Montefiore had in mind was that if those who drafted the Infant Life (Preservation) Act 1929 had been working in 1987–88 instead of in 1928–29 they would not have put a time limit of 28 weeks in the Bill. Probably they would have put a time limit of 24 weeks. However, much water has flowed under the bridge since then. The Bill is dead and all we can do today is to bury it.
In view of other matters which have been referred to this afternoon, that may not be such a pity. I say that although I would have not thought so previously, and at the time that the Bill first came before the House I was a keen supporter of it.
We fall into three groups as regards our attitudes to unborn children. There are those for whom apparently the fact that a child cannot be seen means that it can be written off; it is disposable. There are those at the other end of the spectrum of opinion—among whom I count myself—who say that the life of a child begins at conception and from conception it is surrounded by the aura which we term the sanctity of life.
The majority of people seem to hold views between the one and the other. Yes, the child is certainly something; it is living. Although they would not say that the child should never be killed, there is the view among such people that the older it grows in the womb the more repellent it is to kill it. The noble Lord, Lord Houghton, said that that was the feeling of the mother and that the nearer to term, the more repellent was the idea of abortion. The noble Lord, Lord Rea, also reminded us—and I think it was a necessary reminder—that that is also the feeling of doctors.
In the late abortions which are the subject of our debate we are dealing not with the very early fetus—which is referred to as that utterly mythical, non-existent substance, fetal jelly, beloved of some people who argue this matter. It is not just a fetus in the course of developing. In this matter of late abortions we are dealing with babies waiting to be born—some of whom, and at the later stage many of whom, could live given half a chance.
I should like to draw your Lordships' attention to one point in the report; namely, the difficulty faced by doctors who find themselves with the option that if pregnancy is terminated the child could live, or it 421 could be killed. I do not suppose that that happens very often but it is a point which is made in paragraph 33, subparagraph (3) of the report which draws attention to the evidence of Dr. Savage in response to question 715. Although the report refers only to that one question, the whole of Dr. Savage's evidence is well worth reading. It is quite clear that some doctors make a choice: knowing that a baby could live they opt to kill it. Is that what the Abortion Act was passed to enable? I suspect it is not.
The matter is put most brutally not in the oral evidence but on page 46 in a statistical chart of late abortions under Statutory Ground No. 2, included in Dr. Norris's written submission. In a note at the top of the chart he writes:In any case my observations on Category No. 1 apply equally well here, namely, the pregnancy could be effectively ended with hope for the survival of the baby. Or is the essential requirement the termination of the baby and not the termination of the pregnancy?".That highlights an appalling dilemma which confronts doctors, although I hope and I think only in comparatively few cases.
Therefore, it seems to me that whatever the outcome of the debate now going on in both Houses of Parliament we must have some clear way of saying "No". If the termination is to be carried out after a certain period, that termination must be carried out with a view to preserving the life of the child. Of course, that puts the mother in a very strange position. If her child will live and she is considering the termination of her pregnancy she may think, "Well, if the child is going to live I shall give it a better chance of living if I carry it to term". That puts a whole new aspect of the matter before her.
That is the only point that I have to make, but I shall just add a few words on another matter. Two speakers have already referred to the fact that this is Lady Day. The reason why it is a day of rejoicing among Christians is that Mary said "Yes"—to life.
§ 2.20 p.m.
§ Lord Henderson of Brompton
My Lords, I should like to start by referring to the speech of the noble and learned Lord, Lord Rawlinson, who spoke immediately after the noble and learned Lord, Lord Brightman, and to the remarks that he made about the procedure of Parliament and the conventions of this House.
I believe that the noble and learned Lord, Lord Brightman, would accept—I shall not use the words "be happy about"—the descriptions of himself and his committee as politically unfortunate or politically inept, because I do not think that the noble and learned Lord, Lord Brightman, would claim to have political skills at all. However, I think that the noble Lord was perhaps a little hard and even perhaps somewhat offensive when he claimed that the noble and learned Lord and his committee had acted injudiciously.
If one reflects for a moment on the words of the noble and learned Lord, Lord Rawlinson, they imply that if a Bill on any subject is published in the House of Commons, then immediately any proceedings in this House must be brought to an end. That has never 422 been parliamentary doctrine and never been a convention. It is neither accepted nor acceptable.
§ Lord Henderson of Brompton
Having said that, my Lords, I hope that the Leader of the House or the Minister when he comes to reply will confirm my understanding of the parliamentary convention. I should like to instance just one of several occasions in which Bills on the same subject have proceeded simultaneously in both Houses. In particular I recollect the Bill on the protection of birds. The Bill was rather quaintly and happily introduced in the House of Commons by the noble Baroness, Lady Tweedsmuir, who was then a Member of another place, and simultaneously introduced in the House of Lords by the noble Lord, Lord Tweedsmuir. That did not trouble either House of Parliament then and it should not trouble either of them now.
As regards the conventions of this House in relation to those of another place, I must say to the noble Lord that he is simply mistaken. The convention by which this House does not divide on Second Reading of Bills from another place is confined solely to Government Bills and does not at all relate to Private Members' Bills. That is a very important distinction to make.
§ Lord Rawlinson of Ewell
My Lords, the noble Lord has completely distorted what I said. When I spoke about the use of the conventions of this House I said that the committee had the power but I thought that it was unwise to exercise that power to go beyond a certain stage. I fully accepted the rights of this House. I went out of my way to say how enthusiastic I was for the rights of this House. I said that this House had conventions which it applied and I simply gave an illustration of one. That was the whole purpose of my remarks, which I tried to make as clear as I possibly could, and it is unfortunate that it should be distorted. I said that in this instance the committee went beyond dealing with the Bishop's Bill; it was quite right to assemble the data but wrong to go on to draw conclusions at this particular time, and I meant that it was wrong politically.
§ Lord Henderson of Brompton
My Lords, my purpose is not to misrepresent the noble and learned Lord, but what he said is within the recollection of the House. Not only I but other Members of the House were fully under the impression that the noble and learned Lord was saying that it was beyond the competence of the House—
§ Lord Henderson of Brompton
—and against the convention of the House that it should continue to discuss a Bill on the same subject as a Bill that had been introduced into another place and that the House should observe the convention that on Second Reading noble Lords do not oppose Bills coming from another place.
I make the distinction that we may do that on Bills which are Private Members' Bills but we do not do it on Government Bills. Some hard-liners may say that even on government Bills we should be allowed to 423 dissent from a proposition if the Bill has not been in the manifesto. What I have said about the distinction between a government Bill and a Private Members' Bill to a certain extent answers the question of the noble Earl, Lord Perth, when he made his intervention after the speech of the noble Lord, Lord Hunter of Newington. Therefore I do not think that I need say anything further on that point.
As to the impressive and masterful speech of the noble Lord the Chief Rabbi who speaks with such authority on medical ethics, I should like him to reflect that perhaps some of the remarks he made either traduced the judgment of the medical profession or questioned its good faith. I draw the attention of the noble Lord to the text of the Abortion Act 1967. Section 1 specifically refers to registered medical practitioners being able to perform their duty in good faith. I have sufficient faith in the medical profession to believe that when they are performing this function they do it in good faith.
Secondly, the noble Lord the Chief Rabbi referred to social reasons or social grounds, in connection with the termination of a pregnancy, if it were for the benefit of the mother's life or her mental health. The social grounds have been in this Bill from the start. The Silkin Bill preceded the Steel Bill and the provisions were introduced quite specifically as social grounds. The "social" section, Section 1(2), of the Abortion Act 1967, states:In determining whether the continuance of the pregnancy would involve such risk of injury"—to the mother—account may be taken of the pregnant woman's actual or reasonably foreseeable environment".That is the authority for social reasons that is in the Bill right from the start.
Perhaps I may turn to another matter which is of some importance because it has been central to the report. It is the difficult matter of the 1929 Act. It is what the noble and learned Lord, Lord Brightman, called the cryptic provision. He tells us in the evidence that he has delved deeply into the passage of the Steel Bill and has found no explanation for such a limit. I have also looked in the Steel Bill and neither Mr. David Steel in the House of Commons nor Lord Silkin in this House referred to it. We can therefore gain no guidance from the Steel Bill. However, I delved a little more deeply into the Silkin Bill, which preceded the Steel Bill, and I found that in 1966 Lord Silkin, in a new clause, Clause 4, introduced a provision to the contrary effect to that which appeared in the Steel Bill. I refer to the new Clause 4 that Lord Silkin introduced in 1966. He stated that:The Infant Life (Preservation) Act should be read as subject to the provisions of this Bill".—[Official Report, 7/2/66; col. 629.]That is precisely the opposite of the Steel provisions. Lord Silkin said:In other words, where there is a conflict between the two, this Bill, when it is an Act, shall prevail".For what reason I do not quite know, Lord Silkin was prevailed upon to withdraw that clause at the Report stage. His reason for so doing was that his Bill could not affect the Infant Life (Preservation) Act 1929 unless that Act was specifically repealed or amended.
424 He went on to say that therefore it was an unnecessary clause. What happened between that extraordinary episode and the insertion of a contrary provision into the Steel Bill is buried in the archives of the Home Office and parliamentary counsel and it would be quite interesting to delve into those archives.
I most wholeheartedly welcome the report and wish to congratulate the Select Committee on its recommendations and, like others, to emphasise the unanimity of its conclusions. The committee had the splendid advantage of having the noble and learned Lord, Lord Brightman, as its chairman, which I believe accounted for the acuteness of the questioning of witnesses and the clear path which he and his colleagues beat through the jungle of evidence to reach firm but few conclusions.
The entire committee has performed a great service for this House, for Parliament, for the Government and for the nation. In particular I profoundly hope that the conclusions of the committee will influence those who are considering Mr. Alton's Bill in another place and also (if that Bill comes to this House) that they will have a most profound effect on the considerations in this House. I believe that the committee's findings show up conclusively that simple, if well-meaning Bills, such as that of the Bishop of Birmingham and Mr. Alton, are not likely to take us any further forward. I wish that approach were possible, but it is not. Unfortunately what matters is that this Bill should be considered in a sophisticated manner, deeply considering the opposing views of the extremists—those who want abortion on demand and those who consider that any form of abortion is murder—paying due respect to those views but finding a middle path. That is what the committee of the noble and learned Lord, Lord Brightman, has found.
I was very impressed by the words of the noble Lord, Lord McGregor of Durris, when he said that the minority must not coerce the majority. These are profoundly wise words in a democracy, and I think we must listen with great respect to those on both sides, who hold their views with the utmost sincerity, but come down with a solution which will satisfy the majority of informed opinion. That includes the doctors of the nation and the nation at large. That enormously valuable function was performed by the noble and learned Lord, Lord Brightman, and I strongly endorse his committee's conclusions.
§ 2.34 p.m.
§ The Earl of Perth
My Lords, I have listened with great interest to the explanation that the noble Lord, Lord Henderson, gave about conventions in this House. One point he made was important. There are perhaps many others, but he said that there is a distinction between government Bills and private Bills. All the same I want to put before your Lordships what seems to me to be an issue of grave import from a constitutional angle.
When I asked a question of the noble Lord, Lord Hunter, I touched on this point. He had been arguing why 18 weeks was insufficient as a period for an abortion to be stopped. I felt at that time and I still feel that for us, even if it is a Private Member's Bill, 425 within 24 hours to be expressing our views may be unwise. I recognise that there was an accident in the sense of an accident of timetable. No one could foresee that the two debates would occur within this short period. I should like to know whether, in a future case, it would be possible to be a little more circumspect. If such a conjunction arose, would it not be possible for the Leader of the House to say to noble Lords who are to speak, "Be careful and do not develop arguments which are concerned with what is happening in another place"? It is impossible to bind your Lordships; noble Lords can say whatever they want. However, I believe that it could be a valuable way of avoiding the awkward situation which has arisen in this case.
As regards the report, I had not intended to take any part in this debate and I suspect that there are many noble Lords who are of the same opinion. It may be for the good reason that they did not think that the debate would take the form it has, and that the arguments on abortion would be so greatly developed by those who hold views against any form or only small forms of control.
I should like to make three short points. First, the noble Lord, Lord Butterworth, said that it was inevitable that the committee should go on to consider the question raised by Bishop Montefiore's original Motion. I do not follow the logic of that statement. I follow totally the committee's reason for giving the first part of its opinion. As other noble Lords have said, the facts it presented are valuable but I do not understand the word "inevitable".
Secondly, it will not surprise noble Lords to know that as a Catholic I am against abortion. I shall not now go into the reasons; others can do so far more ably and all noble Lords know them. Thirdly, I should like to express my fullest admiration for the noteworthy speech of the noble Lord the Chief Rabbi. I express the hope that it will be given full publicity and studied by one and all.
§ Lord Butterworth
My Lords, by way of explanation I should like to point out that I said that a substantative issue was raised in this House by the former Bishop of Birmingham. We subsequently found that he chose the wrong legal vehicle to bring it into effect. However, his intention was to bring before this House a particular issue which the Select Committee was charged to investigate.
§ 2.38 p.m.
§ Lord Prys-Davies
My Lords, although I speak from the Front Bench, I assure the House that I speak in my personal capacity and not on behalf of my noble friends on these Benches. This subject must be left to the individual beliefs of noble Lords. It was a great pleasure to hear the speech of the distinguished noble and learned Lord, Lord Brightman. With masterly skill he sketched in the background, explained the committee's recommendations and the reasoning on which they are grounded.
It has been mentioned repeatedly during the course of the debate that the committee came to address itself to the issue of whether abortion after week 24 of the pregnancy should be undertaken unless it is carried out to save the life of the mother. It seems to 426 me that it thereby recognised the deep anxiety of many people who feel that too many abortions are taking place at a very late stage in the pregnancy; indeed, at a stage when the fetus, if born, would have a good chance of survival and is therefore a very real person. Therefore, the committee was right and was driven to consider whether the abortion criteria should be narrowed or tightened up.
In committing the Infant Life (Preservation) Bill last July from the Floor of the House to a Select Committee, it was intended that the committee should discover the facts, and, having discovered the facts, it should give the subject the detailed examination and scrutiny which it required. It seems to me that that is precisely what has happened.
When I finished reading and, indeed, re-reading the report, I felt that my understanding of the subject had been immensely enlarged. Of course one must bear the facts in mind and they are summarised in paragraph 30 of the report and were summarised for the House by the noble and learned Lord, Lord Brightman. It seems to me that that summary in paragraph 30 will be of great assistance to all those who are seriously interested in the subject and seeking a way forward.
One of the most important factors to emerge from the evidence is that in the present state of medical science, and notwithstanding the major developments which have taken place, the tests for fetal abnormality cannot take place and the abnormality be discovered until the pregnancy is well advanced. The committee concluded that this factor, which was explained at length to the House by the noble Lord, Lord Butterworth, must be taken fully into consideration in working towards a settlement.
I happen to think that the committee has found its way around the problems. It had among its members the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Hunter of Newington, a distinguished member of the medical profession. The committee has spoken with one voice. I believe that it has offered a sound lead to your Lordships' House. The balance—and that is the critical word—which it has achieved in both tightening up and relaxing provisions in the Act, and based on the principles which are spelt out in the key paragraph, paragraph 53, offers a sound lead not only to the House but to the country. It seems to me that unless the principles spelt out in paragraph 53 can be demolished, the settlement should be along the lines of that particular report.
Perhaps I may mention that I was impressed with and heartened by the evidence of some of the doctors who appeared before the committee and who acknowledged that in their approach to abortion the focus was on the mother and not on the fetus, but they also acknowledged that nothing relieved them personally of the responsibility of using their judgment—where to draw that difficult dividing line spelt out in paragraph 53. They cannot delegate that responsibility to any other officer.
There is one plea that I should like to make before I sit down and it is in support of the plea of the noble Lords, Lord McGregor of Durris and Lord Butterworth, and the noble Baroness, Lady Faithfull. If the tightening up which is recommended by the 427 Select Committee is eventually found to be acceptable to Parliament, I too should like to urge the DHSS and family practitioner committees to take whatever steps are available to ensure that mothers who are entitled in law to have their pregnancy terminated are given the earliest possible medical advice and the earliest possible access to gynaecologists.
The committee heard evidence which came from a reliable source; namely, from a reader in obstetrics at St. Mary's Hospital, Paddington. He said that a woman who requests abortion at 18 weeks or more tends to be young and unmarried, coming from a home where there has been only one parent and who is not quite coping. In his reply to Question 534 Mr. Paintin outlined a situation here in the City of London when a young, unmarried girl thinks she is pregnant. Mr. Paintin told the committee that she,goes to see her doctor. He tends to be an inner-city GP and is often an older man and not seen as being very sympathetic, or easy to approach. She may not get very prompt or efficient help".Those are the words of Mr. Paintin. It appears to me that Mr. Paintin is pointing to a problem which should not be ignored.
In conclusion I thank the chairman, the noble and learned Lord, Lord Brightman, and his committee for its balanced report. It will be of immense help to very many people who have been anxious about the position. By any standard this report is a contribution.
§ 2.48 p.m.
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale)
My Lords, the first thing that strikes me about today's debate is that it is perhaps just as well that a take-note Motion is not amendable and is indivisible. That said, I should like to begin, like many other speakers today, by congratulating the noble and learned Lord, Lord Brightman, and other members of the Select Committee on the valuable work that they have done in producing the report before us today. I follow the noble Lord, Lord Prys-Davies, in thanking (I am sure on behalf of the whole House) those who gave evidence to the committee. Between them all they have performed an invaluable service not just for the House and Parliament, but for the nation as a whole.
This Bill has an interesting history, and I shall not elaborate on that. Many speakers today have done so. The clarity of their thinking and the analysis that they have made of this complicated matter are an object lesson to us all. I fully understand that the noble Lord, Lord Houghton of Sowerby, introduced the Infant Life (Preservation) Bill in this Parliament. As other noble Lords have pointed out, it was in the normal way referred to a Select Committee of your Lordships' House and it is its report we are debating today.
I believe it is most unfortunate that our debate today has been overlaid by what I can only describe as a procedural wrangle. My noble and learned friend Lord Rawlinson suggested—I hope I of all people will be quoting him correctly—that the committee had exceeded its orders of reference in considering the wider implications of abortion on the Infant Life 428 (Preservation) Bill; that the report was untimely and that it was inappropriate for your Lordships' House to comment upon an issue like abortion while the Abortion (Amendment) Bill was before another place.
The noble Earl, Lord Perth, I believe also suggested that some aspects of the debate should perhaps be left until such time as the Abortion (Amendment) Bill might come before your Lordships' House. I believe most noble Lords have appreciated the robust response to this point of the noble Lord, Lord Mellish. As I understand it, the order of reference of the committee was the Infant Life (Preservation) Bill itself. As the noble and learned Lord, Lord Brightman, pointed out, as it stands at present, this Bill is central to abortion law. I think that the Select Committee might be expected therefore to consider these wider issues.
Perhaps it would be unwise for me to tangle with the noble Earl, Long Longford, on the matter of Standing Orders. Nonetheless, I support the noble Lord, Lord Houghton of Sowerby, and remind him that it is a long-standing practice of this House, backed up by Standing Orders, that once a Bill is committed to a Select Committee, it can do anything it likes with it. It can confirm it, amend it or produce a totally different Bill so long as it is within the scope of the Bill that was presented to it in the first place. It can also produce a report.
The short answer to my noble friend the Duke of Norfolk is that this Bill is killed for a practical reason. Subparagraphs (4) and (5) of Standing Order No. 13 of the Standing Orders of another place explain that no Lords' Private Member's Bill can be considered in the Commons, except on the nod, in the second half of the Standing Orders of another place explain that no Lords' Private Member's Bill can be considered in introduced by the right reverend Prelate the then Bishop of Birmingham, and this Bill were the first Bills on abortion in its wider sense to be introduced in either House of Parliament since 1983.
§ The Earl of Longford
My Lords, I hope that the noble Lord will go on to remind us that the Ministers who were present, including the new Leader of the House, voted for the Bill introduced by Bishop Montefiore in the then form—in other words, in a form totally opposed to the present one.
§ Lord Skelmersdale
My Lords, the noble Earl will have to contain his soul in patience.
In regard to our relations with another place, we have to remember that the Infant Life (Preservation) Bill had been debated in your Lordships' House and remitted to a Select Committee long before the Abortion (Amendment) Bill had been introduced. I agree with the noble Lord, Lord Henderson, that it is surely inappropriate to suggest that the debate on abortion in the elected House precludes your Lordships' House for some kind of constitutional reason from engaging in the same debate. On matters of conscience like this it is surely open to each House to debate the issue in its own time. Indeed it is my belief that many Members of both Houses will consider this report helpful and timely, whether or not they agree with its conclusions.
429 After today's debate the House will need no reminder from me that abortion is a subject on which individual feelings run deep and views are passionately held, not only in this House but in another place and in the big wide world outside; in the community, as the right reverend Prelate the Bishop of Gloucester described it. That is why discussion of abortion is always promoted by individual Members of Parliament and not by governments, of whatever political persuasion. It follows therefore that whenever this subject is debated in either House of Parliament there is when occasion demands a free vote.
Within these constraints, however, it is only right that the Government should give a view today. In the past there have been numerous attempts to change abortion law since the Abortion Act was enacted in 1967, but no committee of either House has considered the subject in depth since the mid-1970s. Abortion practice now is very different from what it was then. In the early 1970s there were frequent abuses of the Act. Considerable numbers of women came to this country from overseas and some were undoubtedly exploited. It was by no means uncommon for the operation to have fatal consequences. In the period 1970 to 1972, 28 women died following legal abortion. Going back a few years, at the time of the introduction of the 1967 Act the incidence of deaths and morbidity from illegal abortions was high.
Following the report of the Lane Committee and detailed consideration of the operation of the Abortion Act in the mid-1970s by the Select Committee on the Abortion (Amendment) Bill, the department's controls over the private sector have been strengthened, abuses of the system have been eradicated and the interests of patients have been safeguarded. One welcome indication of the effect of these changes can be seen from the fact that deaths from illegal abortion have fallen. In the latest period for which figures are available, 1982 to 1984, there were no deaths. Deaths from legal abortions have dropped steadily since the early 1970s and I am pleased to say that in 1986 there were no deaths. The number of women coming from overseas has fallen by more than half and is continuing to fall, and there is no evidence that any exploitation is now taking place. I am most grateful for the commendation of the noble Lord, Lord McGregor of Durris, in respect of the health department's actions in that regard.
I noted that the noble Lord, Lord Hunter, said that this is an area that the National Health Service has taken principally upon itself. I understand his point of view but I feel it would not be appropriate for me to comment in advance of the review that is expected regarding the future position of the National Health Service. I should however say that the present position is that health authorities are free to provide abortion services within the constraints of the other claims on their resources.
In some cases authorities find it appropriate to arrange for their patients to be treated on an agency basis in private sector facilities; I am advised that that occurs in about 4 per cent. of all cases. I shall however look into the noble Lord's suggestion that there is 430 scope for more co-operation between the National Health Service and the private sector on those matters. My present feeling is that this should be a matter for local decision.
Two other points have been raised by noble Lords to which I should like to respond. As regards contraceptive and related services, it is again for individual health authorities to decide upon the provisions of such services in the light of their first-hand knowledge of local needs, priorities and competing claims on resources. I accept that it is right to try to reduce the number of late abortions, the reasons for which are complex.
The Government are currently providing the funding for three family and pregnancy counselling projects for young people in different health districts. It is hoped that that funding will lead to the identification of better administrative methods which can be commended to the health service as a whole. However, I could not agree more with those noble Lords who pointed forcefully to the fact that we should all be concerned to remove the need for abortion. I believe that proficient sex education in schools is much more important than the role of the health authority in carrying out abortions.
My noble friend Lord Butterworth suggested that it would be possible to make abortion easier up to the 12th week and that this would be a way to reduce the number of late abortions. Indeed the noble Lord, Lord Jakobovits, supported that view. As I understand it, many European countries have such legislation. However, as we all know, that is not how the present law on abortion is framed in this country; it does not permit abortion on demand at any stage. It would be for Parliament to change that framework. Clearly everyone would welcome a reduction in the number of late abortions. That could be achieved without the need to change that law; for example, by encouraging women to seek advice and counselling at an early stage, by improving administrative arrangements to reduce the delay in obtaining an abortion and by encouraging more awareness of information about contraception especially for young people.
I now return to the report. The committee takes the view that the 1929 Act is not the right vehicle to control late abortions. The report does, however, suggest that in the committee's view there will never be a case for presumptive age below 24 weeks and, to the extent that their proposals would introduce a time limit, the limit chosen is 24 weeks. I confirm that this is also in fact the Government's line. Therefore there is a sense in which the Select Committee's work strengthens the case for amending the presumptive age in the 1929 Act, and thus for the present Bill, even if the committee itself drew a different conclusion.
The issue to which the Select Committee specially addressed itself was whether there should be an amendment to the existing law regulating the gestational age at which an abortion can lawfully be performed. As Table 3 of the report shows, the number of terminations carried out after 24 weeks is small and is falling. In 1981, 142 terminations in this age range were carried out in England and Wales; by 1986 that figure had fallen to 29. As the report points out, following the report of the Royal College of 431 Obstetricians and Gynaecologists, Fetal Viability and Clinical Practice, published in 1985, the Department of Health and Social Security has imposed administratively an upper limit of 24 weeks on abortions carried out in the private sector, so that the few abortions that are carried out after 24 weeks are performed in National Health Service hospitals. As the House will know, that report was reviewed last year and the conclusion that a fetus should be regarded as viable at 24 weeks rather than 28 was reaffirmed. That means that the 1929 Act provides a de facto limit below which a doctor performing an abortion has the benefit of an automatic defence in cases of alleged child destruction. Conversely, if the abortion were after 28 weeks gestation, the onus would be on the doctor to prove that the fetus was not capable of being born alive.
I have described how the interaction of the Infant Life (Preservation) Act 1929 and the Abortion Act 1967 makes it an offence to perform an abortion if the fetus is capable of being born alive. The Select Committee has recommended that the law on these matters should be changed in a number of ways. Its principal recommendation is that a doctor who carried out an abortion in good faith in accordance with the statutory provisions, should not be liable to prosecution for the crime of child destruction, and they have therefore recommended that Section 5(1) of the Abortion Act should be repealed to disengage that Act from the 1929 Act. The Government accept that there is merit in that proposal.
In this report the Select Committee has, however, gone further than this. It has also made recommendations about the criteria under which it should be lawful for a doctor to perform an abortion in the later stages of a woman's pregnancy. Its view is that the Abortion Act should be amended so that abortion on grounds of risk to the physical or mental health of the woman is permissible at 24 weeks or over only if two doctors are of the opinion that the termination is essential to the woman's physical or mental health. It has also recommended that the Act should be amended so that abortion on grounds of the risk to the health of existing children is never permissible at 24 weeks or over. In considering the likely impact of these suggested amendments, it might be helpful to the House to know that in 1986, the latest complete year for which data are available, a total of 214 abortions were performed at 24 weeks or over. Of those, 165 were performed on grounds of the risk to the physical or mental health of the woman and a further three because of the risk to the health of existing children.
The noble Lord, Lord Jakobovits, in a remarkable speech, if I may be permitted to say so, I thought implied—if I have him wrong, I hope that he will correct me instantly—that the provision permitting abortion on grounds of mental health is abused by doctors. The Abortion Act does not permit abortion on social grounds alone. For an abortion to be performed, two doctors are required to certify that in their judgment, made in good faith, the medical grounds required by the Act exist, either singly or in concert, as the noble and learned Lord, Lord Brightman, told us.
432 The Government have no evidence that the Act is being abused. We stand ready to investigate thoroughly any such evidence that is put before us.
In these recommendations the committee has posed the underlying question: under what criteria should it be lawful for a doctor to perform an abortion on a woman in the later stage of her pregnancy? Only Parliament as a whole can decide, and, as I have said, even the House cannot make that decision today.
The best medical advice available remains the Royal College of Obstetricians and Gynaecologists' report which suggested that the right presumption is now that the child is viable at 24 weeks, for the reasons given by the noble Lord, Lord Hunter of Newington. That advice originally published in 1985 has been confirmed again in a report issued last year. The DHSS will continue to apply a 24-week limit in the private sector by administrative means.
The 1929 Act should reflect modern medical knowledge and practice. The Select Committee has confirmed that 28 weeks is now out of date as a presumption of the capacity to be born alive. The Government agree. In the longer term, and leaving to one side the question whether there will be more fundamental changes to the law on abortion, it would seem right for Parliament to look again at the case for reducing the presumptive age to 24 weeks.
This has been an interesting, nay, fascinating debate. I am sure that the Official Report for today, Friday 25th March, 1988, will be read far and wide across the country. I am grateful to all noble Lords who have taken part.
§ Lord Robertson of Oakridge
My Lords, before the Minister sits down, I apologise if I misled the House on the position in law. But in the Infant Life (Preservation) Act 1929 the offence is to destroy the life of a child being capable of being born alive. The 28 weeks come into it in that there is a supposition built into that Act that if the pregnancy has gone 28 weeks, then there is prima facie proof that the child is capable of being born alive. That is certainly what I intended to convey.
§ Lord Skelmersdale
My Lords, I am not sure that it would be wise to continue this discussion. The contra point that I was making is that because of the interaction between the 1967 Act and the 1929 Act there is a de facto limit below which a doctor performing an abortion has the benefit of an automatic defence in cases of alleged child destruction.
§ 3.5 p.m.
§ Lord Brightman
My Lords, perhaps I may begin a very short reply by thanking noble Lords who have spoken so generously of the work of the special committee. I am sure that all members of the committee will be very appreciative of the remarks which your Lordships have made. I am also grateful to all noble Lords who have found time to attend this debate and for the invaluable contributions which speakers have made to the solution of this painful subject. The committee welcome criticism of the report. We do not suggest for one moment that our 433 solution is a perfect one, nor that it could not be bettered.
Perhaps I may say a few words about our reaction to events when the Alton Bill was introduced and additionally when we came to the conclusion that the Bishop's Bill, for technical reasons, could not properly proceed. When the Alton Bill was introduced, we did not hesitate to continue our work because we took the view—and I hope that it was the right view—that our report and the evidence which we collected, would be of great assistance to those who had to debate the subject matter elsewhere. We were not at all anxious to bring our work to an end, as it were, in a "half-baked" condition.
The point was also raised that we should have stopped our work when we had answered the technical question before us as to whether the Bishop's Bill should not proceed. In paragraph 20 of our report we decided that the Bishop's Bill could not go further. At that stage we considered whether or not we ought to continue with our work. In fact I took advice from a senior officer of the House as to whether we ought simply to say that the Bishop's Bill ought not to proceed further and lay down our pens. I was advised, and I passed this advice on to the remainder of the committee, that it would be "futile" for us to stop at that stage. We therefore went on.
This debate is not about abortion but about late abortions. Perhaps I may just say a concluding word on that subject. The Bishop proposed a limit of 24 weeks; others proposed an earlier gestational age. What are the facts? First, to be certain of keeping within the law, as has already been pointed out, even now doctors tend not to carry out abortions after 26 weeks.
Secondly, the number of late abortions is extremely small, and are usually on the ground of serious fetal abnormalities. In 1986 there were only 29 carried out at and after 25 weeks in England and Wales and only two in Scotland. Of those 31 abortions, 23 were on the grounds of serious fetal abnormality.
Thirdly, it is just not possible at present to detect many serious abnormalities in early pregnancy. Down's Syndrome and severe brain abnormalities can be detected at about the 20th week of pregnancy. Spina bifida, anencephaly and other defects of the central nervous system can be detected in the 16th to the 20th week. Serious heart defects can be detected about the 24th week. Then of course one has to allow time for the mother to decide what course she wants to adopt and to receive medical advice. Is it humane 434 to forbid termination in those cases and to demand that the woman against her will shall bear a deformed fetus to full term? Is it humane to demand that the parents either care for a seriously deformed child during the rest of their lives or institutionalise the child?
The committee was well aware and had evidence to bear out the fact that there are, happily, cases where the parents look after and love a deformed child which suffers from abnormalities. We were well aware of that and we referred to it in a paragraph of our report. But it is really a matter for the mother or for the parents what they want to do in those circumstances.
Finally, consultants giving evidence to the committee repeatedly said that patients seeking abortions when they are 20 weeks pregnant or more are the most distressed that they see. I shall give a couple of references from the evidence. In volume 1 page 98 it states:There is also the certainty that fear, ignorance and administrative delays will continue to be a major reason for late attendance for termination of pregnancy. These late attenders are usually women in greatest need of help: the very young and the socially deprived.The evidence further states that late presentation is usually associated with youth, low intelligence and severe mental illness, usually in a context of social deprivation.
A question which I put—No. 698—to a witness was as follows:The Bill which this Committee is considering would have the practical effect of reducing the maximum gestational age at which abortions can lawfully be carried out from under 28 weeeks to under 24 weeks…what sort of women would be disadvantaged if that were the law?The answer was:Primarily, it would be very young women, or girls of 12, 13 or 14, who deny their pregnancy because they cannot face the awfulness of it.In 1986 over 1,000 abortions were carried out on girls under 15 years of age. Well over 3,000 were carried out on girls of 15 years of age and nearly 38,000 on girls aged 16 to 19.
Time does not enable me to deal with all the points which have been raised during the debate. Perhaps it is better that I should not seek to answer them off the cuff as there may well be an opportunity later in this Session to give considered answers. As I have said, I am most grateful to all who have contributed so much time and effort to this debate.
§ On Question, Motion agreed to.
§ House adjourned at fourteen minutes past three o'clock.