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On Question, amendments agreed to.

[Amendment No. 151 not moved.]

Baroness Royall of Blaisdon moved Amendment No. 152:

“(c) by virtue of the provisions specified in subsection (7A), there is no other parent, or”.(a) section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), or(b) sections 34 to 47 of the Human Fertilisation and Embryology Act 2008 (disregarding sections 39, 40 and 46 of that Act).””

On Question, amendment agreed to.

[Amendment No. 153 not moved.]

Baroness Royall of Blaisdon moved Amendments Nos. 154 to 162:

“Family Law Reform (Northern Ireland) Order 1977 (S.I. 1977/1250 (N.I. 17)) “Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22))(a) section 28 of the Human Fertilisation and Embryology Act 1990 (disregarding subsections (5A) to (5I) of that section), or(b) sections 34 to 47 of the Human Fertilisation and Embryology Act 2008 (disregarding sections 39, 40 and 46 of that Act).”.”

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“(g) section 54 of the Human Fertilisation and Embryology Act 2008;”.”“Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6))“(f) section 54 of the Human Fertilisation and Embryology Act 2008;”.”

On Question, amendments agreed to.

8.30 pm

Baroness Masham of Ilton moved Amendment No. 163:

The noble Baroness said: My Lords, in moving the amendment, which amends the law on late abortions, I will first explain, in case some of your Lordships are not aware, that a baby who may have a disability can go full term and then be killed and removed from its mother. The legal time for abortion is 24 weeks, but there is no time limit for handicapped babies. This is discrimination of the worst sort.

I personally find discussing abortion very difficult, as it would not happen in an ideal world. However, we are discussing the law of the land, which allows abortion up to 24 weeks—six months—which means that the baby is well developed. How can it be, in this modern world of advanced technology, that babies are allowed to go full term and then be given a lethal injection and killed just because they are still inside the womb and may have a handicap? The amendment would stop this unfair discrimination. It has become known as “the equality amendment”.

So much has been talked about the welfare of the child. I must try to persuade some of your Lordships that the welfare of the living baby within the mother’s womb should also be considered and protected. There have been many advances in medical procedures. An example is a remarkable operation in the USA to correct a baby of 21 weeks with spina bifida while still in the mother’s womb, which shows how wonderful a surgeon’s skill can be. I ask the Minister whether this operation is undertaken in the UK. Is how much a baby can feel before it is born known? So many babies are being aborted who are thought to be severely disabled but turn out not to be; I know that some of your Lordships know of some such individual cases.

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In Committee, it was the wish of many of your Lordships that there should be a Select Committee to undertake a comprehensive review of the abortion law, proposed by my noble friends Lady Finlay of Llandaff and Lord Alton of Liverpool, and the noble Lord, Lord Steel. Sadly, the Liaison Committee turned it down.

The provision allowing a baby to go full term and then be killed because of a disability became legal as a result of an amendment to the Human Fertilisation and Embryology Act 1990, amending the 1967 Act. This was before disability discrimination legislation. I want the noble Baroness, Lady Wilkins, to take note of this issue. We should consider how serious and important this legislation is to help and protect people who have a disability. My noble friend Lady Campbell of Surbiton unfortunately cannot be with us today because she has a chest infection. In Committee, she said:

Many people, including a law don from Cambridge, have written to me to say how deeply insulting and offensive Section 5(1)(1)(d) is to every single member of the human race who has been born with some physical or mental disability that other people would regard as serious—whatever that may mean—since it proclaims that such people are not worth caring for, should not be treasured and should not be protected from those who wish to kill them off, provided only that the killing is done before they are born. I know some splendid people who were born with spina bifida and cleft pallets. Had this legislation been in force at the time they were in their mother’s womb, they might not be here today. What about such brilliant artists as Beethoven and Toulouse Lautrec? They would not be here. We would not appreciate their wonderful art and music. I beg to move.

Lord Steel of Aikwood: My Lords, I had rather hoped that we might get through the Bill without any amendments to the abortion legislation being tabled, but as the noble Baroness rightly said, our efforts to get a Select Committee to review the 40 year-old Abortion Act did not succeed, and therefore I fully understand and respect her reasons for wishing to table this amendment again. I know how strongly she feels about this. I read in Hansard the speech she made in Committee.

I should say at the beginning that this part of the abortion legislation was by far the most contentious and difficult one to deal with at the time that we were legislating for legal abortion, but I believe that the paragraph of the Abortion Act that the noble Baroness seeks to delete is more important now than it was in 1967, simply because medical advances and the customary screening of pregnant women has enabled severe abnormality to be detected at a much earlier stage than was the case 40 years ago. Although the number of abortions carried out under this paragraph of the Abortion Act is a tiny proportion of the total, it is none the less a serious matter.

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Indeed, when we were debating these issues in both Houses all that time ago, we were very concerned that we did not slip onto the slippery slope of eugenics in this matter. I am well aware that in some societies abortion is used as a method of selecting the sex of children, which I find completely abhorrent. Nevertheless, I believe that the noble Baroness is profoundly wrong when she suggests, as she did in Committee, that in some way the existence of this legislation is an offence to the dignity of disabled people. In the past five years, one of my relatives and a friend of mine have given birth to severely disabled children. I know that when the initial pain of that discovery was over, the entire family and everybody who came in contact with them felt delighted at every stage of progress that those children made.

Sadly, one of them, my relative, did not survive. However, she lives on not just in the memory of those who knew her, but because we set up a fund to raise money to help medical research into the heart defect from which she suffered. Therefore, her contribution to society, in her very short life, was substantial. As for my friend’s child, he is making as much progress as he can at his school, and we delight in that. There is no question of treating these people as, in any way, second-class citizens.

The Beethoven argument, which I have heard so often, is fundamentally false because you cannot have abortion retrospectively. Nobody ever said, either to Beethoven or to any of these children I have referred to, “Oh, I wish you had never been born”. That is an absurd argument and not one that should be sustained.

There have been challenges since this law came into being. There was one famous legal case taken in the courts, allegedly, because a foetus had been aborted with only a hare lip. The case was thrown out by the courts—rightly so, because as the medical Members of the House may tell us, a hare lip is often an indication of something far more serious. It is something that they have to judge in each case.

We have to remind ourselves that all the abortion law does is to lay down the boundary of the criminal law. It is not a law that says what doctors or parents should do. It simply says that, in certain circumstances outlined in the law, if two doctors, “in good faith”—the words are in the Act—together with the mother, decide that it is in the best interest for the foetus to be aborted, they can do that without criminal prosecution. It does not say how and when they should do that. That is an important matter.

It is also the case—but again, the medical Members of the House will confirm this—that, very often, natural abortion, or as we more euphemistically call it, miscarriage, occurs when a foetus is abnormal and therefore the body rejects it. All that medical science is doing now, with screening, is assisting that process when nature has failed. Therefore, it is the case that the general clause dealt with in subsection (1) of the amendment tabled by the noble Baroness should be sustained.

As to subsection (2) of her amendment, to which she spoke earlier, that was a change made in both Houses in 1990, as she rightly said. At that time, it was agreed, and I agreed with it, to reduce the age of

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assumption of viability, in the light of medical knowledge, from 28 weeks—which had existed, not from the Abortion Act 1967, but from the Infant Life (Preservation) Act 1929—to 24 weeks. That was agreed and it went through both Houses without demur. However, as a consequence, the section, to which the noble Baroness has drawn attention, was added, to say that, in the case of severely disabled foetuses, the 24-week limit would not apply.

I must admit that I had some hesitation about that section. It meant that, as the noble Baroness said, an abortion could be carried out right up to the point of birth, which was contrary to the Infant Life Preservation Act, never mind the Abortion Act itself. However, my mind was settled on that issue by a conversation, which I will retell to the House, that I had with a distinguished professor of obstetrics at one of our leading universities.

He told me about two cases referred to him, after the 24-week limit had passed, of mothers who were carrying foetuses which had no prospect of life. In the one case, after immense consultation and proper counselling, it was agreed that the pregnancy should be terminated and the mother helped to start a new and healthy pregnancy, and that is what happened. In the other case, identical to the previous one, the mother, for reasons known to herself, which may have been religious or because of other conditions in the family—I do not know the circumstances—decided that they would rather have the baby born. The baby having been born dead, they took it in the family car from the hospital to their house to see the room that had been prepared for it, and then brought the dead baby back to the hospital.

The professor made three points. First, tragically, the outcome was the same in both cases. He could do nothing about it. Secondly, both parents had been the subject of proper counselling—a subject which we come back to time and again when discussing abortion. Proper counselling is very important and in this case they had expert counselling. The third thing they had in common was that the parents were ultimately able to decide on their preference. That is terribly important. If the noble Baroness’s amendment were carried, that choice would be taken away and we in Parliament would be denying people a free choice on what to do in these difficult and tragic circumstances.

8.45 pm

Baroness Knight of Collingtree: My Lords, the noble Lord, Lord Steel, will understand why I have a sense of déj vu this evening—our history goes back a very long time in debating this matter. I listened to what he said with great care, but he was not really denying what my noble friend Lady Masham said. She said that a special change was made to deal with the question of aborting babies later because the child was handicapped. If that is not acting against the bearing and having of a disabled child, I find it really difficult to see quite what is. I have always felt that it is very difficult—we must understand how difficult—to have a badly handicapped child. It is all very well for some of us who have never had that burden to say that other people should take it on. I completely

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understand that, but I believe that if society is civilised and humane then it ought to do far more to help women in that situation.

Many years ago, when I was a local councillor, I remember calling to see a lady who had a badly disabled child—she called him that, although he was 38 years old. What worried her above everything else was who would look after Tommy when she was gone. I thought that quite dreadful and that there ought to have been some way of helping her when he was young, because she said that she was never able to leave him alone. I do not think she had had a holiday after her husband died. There was no one else to look after the boy. She had had a really dreadful life, but that is no reason not to have the child at all.

Society ought to help a great deal more. However, as the noble Lord, Lord Steel, acknowledged, a handicapped person is often a great blessing. A handicapped baby can be that, and we can learn such a lot from its courage and smiles. It worries me greatly that we are at the stage of seeming to go further and further down the dateline. In the past few days, I was horrified to hear this matter being discussed on the radio by two professors who were trying to decide whether an unborn child felt pain. I can remember seeing pictures of unborn children being jabbed with a needle while in the womb, and their reaction seemed perfectly visible. It was a definite reaction to receiving a painful jab. The professors could not agree—but which two professors can agree, except the noble Lords, Lord Patel and Lord Winston? In the main, however, experts disagree. The professors said, “If there is any doubt about the unborn child feeling pain, we can always inject it with something that will stop it feeling pain while it is aborted”. That is an extraordinary way of looking at the issue.

We should value our disabled friends greatly and in no way seem to act against them by permitting a later abortion for them than for others. It worries me that we increasingly accept that abortion is necessary and that it will happen. A friend of mine was told by her doctors that she should think seriously about having an abortion because her child was handicapped. She refused to do so and the child was slightly handicapped in one foot, which the doctors were able to rectify over about four years. This matter worries me and I have pleasure in supporting my noble friend.

Baroness Gould of Potternewton: My Lords, I am sorry to have to do it, but I rise again to oppose this amendment. I do so as someone who has been firmly committed all her life to equality. Although one respects the noble Baroness’s deeply held beliefs on this matter, I think that she is wrong. It is essential that we listen to the long-held views of the medical community and to the very opposing views of those within the disabled community, such as the National Disabled Students Union, which is deeply opposed to this amendment. In 2006, less than 1 per cent of abortions carried out in England and Wales took place on these grounds. If this amendment is passed, should women still be offered antenatal screening and diagnostic testing at all? Under the law, they would not be able to end the pregnancy. So it would appear to be a futile exercise and a retrograde step.

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The issues around detection of abnormalities and the timing of antenatal screenings are complex. It is unfortunate that it remains impossible to diagnose many foetal abnormalities before the mid-pregnancy anomaly scan, which is usually at 21 or 22 weeks’ gestation. Even then some foetal malformations are not apparent but visualise beyond 24 weeks if there is a need for a further scan. Identification of a problem at this scan would almost certainly mean that further tests are required. Those tests take time. The law currently allows time for counselling and time for the women to be able to choose—to make a choice. These are desperate cases. There needs to be time for the woman to have the counselling and to make the choice where an abnormality is discovered very late. Putting those few women under pressure to make a painful decision without having the time they may need to do so is unthinkable and inhumane.

Medical professionals also support the current situation whereby the Act does not list how serious handicap should be defined. I believe that flexibility is essential. The Government supported this flexible approach in their response to the recent report on abortion by the Science and Technology Committee in the other place. In their response, the Government stated that,

I welcome that defence of the current law.

In Committee, and again today, the noble Baroness, Lady Masham, has mentioned abortions for minor disabilities, saying that these could be rectifiable. But we cannot ignore the fact that these conditions can sometimes be indicators of an underlying genetic syndrome or serious defect, as the noble Lord, Lord Steel, mentioned.

This amendment is also opposed by the Genetic Interest Group, a national alliance of patients’ organisations which supports children, families and individuals affected by genetic disorders. Passing this amendment would particularly affect the reproductive choices of those parents who know they are carriers of a genetic disorder and risk having a baby with the condition. It has also been suggested that women are coerced into an abortion by doctors who are prejudiced against people with disabilities. The evidence suggests the reverse. Clinicians are reluctant to be directive and these difficult and complex decisions are taken in partnership between the parents and the professionals providing the care.

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