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The noble Lord, Lord Low, who unfortunately cannot be in the House today due to a longstanding commitment, has asked me to say that he is in full agreement with the points I have made. In particular, he asked me to say that there is a range of views on this question to be found among disabled people and that in comparing foetuses which have the potential to be a disabled person with non-disabled persons, the noble Baroness, Lady Masham, is not comparing like with like. Arguments based on equality are just not appropriate.

Finally, no woman ever makes the decision to have an abortion lightly. It is a particularly heartbreaking dilemma in cases where the pregnancy has been very

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much wanted and a foetal abnormality is diagnosed. Those who make that painful choice to end a pregnancy do so after much careful consideration, advice and counselling of what the diagnosis may mean for their baby, the child’s quality of life and what it might mean for themselves and their family’s future. They should be supported to make the reproductive choice which is best for them rather than facing condemnation. I ask the House not to support this amendment.

Lord Alton of Liverpool: My Lords, I follow the noble Baroness, Lady Gould; she knows, as I said in Committee, that I have a great deal of respect for her on a whole range of issues on which we often co-operate. On this issue, however, we are in disagreement. I fully support the amendment that my noble friend Lady Masham has laid before the House tonight. I set out my arguments for supporting the amendment at some length on 12 December, the last day of Committee, at col. 308. The procedures of the House are such that you should not repeat all the arguments that you made in Committee. I shall therefore not trespass too long on your Lordships’ indulgence this evening.

I should like to speak about one or two of the questions that have been raised tonight and raise one other issue with the Minister. At the heart of our debate—the noble Baroness has just mentioned it again—is this issue of whether choice should be a trump. I have always been troubled by that argument—the argument about personal autonomy being more important than other considerations. I guess that this is where the issues divide us. In 1906, in his book Orthodoxy, GK Chesterton said that,

Sometimes we have to look beyond the issue of choice at the deeper questions. For me the question is, is this life itself? If it is life, do we have obligations towards it, and does the state not have a duty to protect?

As the noble Lord, Lord Steel, said earlier, a very small number of abortions take place on the grounds of disability. Of the 7 million abortions that have occurred since the noble Baroness, Lady Knight, and the noble Lord, Lord Steel, first debated this issue in 1967, 98 per cent have been done under the social clause and do not have anything to do with the hard cases. As my noble friend made clear tonight, that is not a reason why we should ignore these other questions or say that they are less important, especially as this is a discrete question that has arisen, as the noble Lord said, because of the change that was made in the 1990 Act and which did not occur before. That is when we decided to allow abortion up to birth specifically on the grounds of disability.

I should like to ask the Minister how this corresponds with human rights legislation and what advice we have taken on compatibility as far as issues of discrimination and equality are concerned. That, after all, is at the heart of the argument that my noble friend has laid before the House. I should also like to ask him about the definition of the word “serious”. It is a question that I raised in Committee when I referred to Section 1(1)(d) of the Abortion Act, which allows abortion up to birth if,

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The noble Lord, Lord Steel, gave examples I think of anencephaly and hydrocephaly, and of life-threatening disorders where often the child cannot be born alive anyway. There would probably be no disagreement between us on that. That was never meant to fall within the scope even of this amendment, which I think was first moved in 1990.

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We need to concentrate on the definition of “serious”. The Reverend Joanna Jepson, as many of your Lordships will know, tested this issue when she went to court over the issue of cleft palates. Since then, there have been other cases not only about cleft palates but about club feet, hare-lips and webbed fingers. Although I accept what the noble Lord, Lord Steel, said—the noble Lord, Lord Turnberg, also made this point—that it may indicate other more serious conditions, I would like the Minister to tell us when he replies why we do not require the precise reasons to be stipulated on the forms that authorise these very late abortions and how they conform to this word “serious”. Cleft palates, club feet, hare-lips or webbed fingers are rectifiable disabilities, and I do not think that anyone in your Lordships’ House would argue that they should be a ground for abortion up to and even during birth.

My noble friend also referred to spina bifida. I drew to her attention last week, as I have to one or two other noble Lords who are in the House this evening, an extraordinary photograph that I was recently sent of a baby called Samuel Alexander Armas, who was at 21 weeks’ gestation when an extraordinary surgeon called Joseph Bruner, who works at the Vanderbilt University Medical Center in Nashville, removed the baby from the womb, operated on the spina bifida and returned the baby to the womb, successfully dealing with the spina bifida. There is an extraordinary subsequent photograph of this baby, who is now three or four years old, holding a sibling who had the same condition and who was also operated on in utero.

It might be valuable for us to discuss in some detail at some other stage what we are doing in this country to develop operations in utero to correct rectifiable disabilities. The scar tissue on the spine of that boy healed completely, and although he has some ongoing conditions, his life and that of his sibling were saved. This combines good ethics with good medicine, which should commend itself to your Lordships. I know it will commend itself to the noble Lord, Lord Darzi, who is one of the foremost surgeons in this country. I hope that, when he comes to reply, he will not only tell us about the definition of this word “serious” but say something about what can be done and is being done in utero in this country now, and about how widely the sorts of operations to which I have just referred are being practised.

The noble Baroness, Lady Knight of Collingtree—my noble friend in this context, as she always is—mentioned pain. Only this evening, Professor Sunny Anand, one of the world’s foremost experts on foetal pain, addressed a meeting elsewhere in the Palace—a meeting that was reported in the newspaper this morning. He was accompanied by someone who is not from my side of the argument but who the noble Lord, Lord Steel,

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will know—Professor Stuart Campbell, a leading gynaecologist from Glasgow, who took the extraordinary 4-D footage of the baby walking in the womb. They talked at the meeting about pain. Professor Sunny Anand said that he believes a baby can feel pain before 24 weeks’ gestation and that this should affect our attitudes towards particularly late abortions. That in turn puts the other side of the argument put by the noble Lord, Lord Steel of Aikwood, earlier in our proceedings this evening when he said quite rightly that technology, medicine and our knowledge of what is happening to the child in the womb have advanced through foetal scanning and the rest. All of us who have seen our own babies on a foetal scan know the magic of that moment. I remember seeing my son, then at nine weeks’ gestation, on a foetal scan when his twin had miscarried—naturally, as the noble Lord, Lord Steel, said earlier. My wife bled profusely during the pregnancy that followed, and there was great uncertainty about the outcome. I am happy to say that the outcome was fine and that that son has done well and is about to do his A-levels next year. The point that the noble Baroness, Lady Masham, was making earlier is that we can never be sure when we are told by these tests and scans, or from the things that happen to us in life, what the outcomes will be. We should therefore be very cautious about trying to predetermine everything.

While I was a Member of Parliament in Liverpool a constituent came to see me because she had been told that her baby would be seriously disabled. She was a single-parent mother and had been told that she should have an abortion in order to be rid of a problem that she would otherwise encounter. She was told that she would have huge difficulty in bringing up the child. But when the child was born, there was nothing wrong with it. She had been told that he would be a dwarf and there would be other ailments—a whole range of disabilities. Subsequently, she became pregnant again. When she went to the hospital for tests on the second occasion she was told, “Because you had a disabled baby the first time”—she had not, but that was on her medical records—“you must have the amniocentesis test. If you don’t, it will be irresponsible”. Amniocentesis carries a 2 to 3 per cent risk of spontaneous abortion. The tests can carry consequences as well and they do not necessarily tell us the outcomes.

I am glad that my noble friend has had the courage to bring this amendment before us and this debate to your Lordships’ House. The noble Lord, Lord Steel, my noble friend Lady Finlay and I suggested to the Liaison Committee that there should be a full Select Committee not just to look at this question but to conduct a comprehensive review, as the noble Lord said, after 40 years of this legislation being on the statute book. He and I totally agree on that. Rather than discussing this within the context of the Human Fertilisation and Embryology Bill, that would have been, and still could be, the best way of proceeding. I hope that, when the Bill goes to another place, the Members there will accept that suggestion, in the spirit in which it was offered, and perhaps allow us to look again at all these questions far more comprehensively.

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Lord Clarke of Hampstead: My Lords, I shall be brief in speaking in support of the amendment tabled by the noble Baroness, Lady Masham. I congratulate her on the comprehensive way in which she moved it, as is her usual style. Nobody in this House who heard her will be in any doubt as to what this issue is about.

On 21 November, on the second day of Second Reading, I outlined my concerns that Members in the other place might make attempts to lengthen the period up to which abortions could take place. I mentioned many other concerns and it is too late in the evening to go through them all again, but I still have this great concern that somebody will try hard to undo some of the good work that has been done. On the question of pain, I will just repeat what I said at Second Reading:

During the passage of the Bill, much time has quite properly been devoted to the creation of life. For a lay person such as me, it has been an education to learn of the efforts of highly skilled and professional people who help women to bear children. As has been said, we are fortunate in this House to have such people as Members. My support for this amendment is strengthened by the moving speech given by the noble Baroness, Lady Masham, at Second Reading. Sometimes when you leave this place, you get half way home and you think, “I have forgotten all that”. But the words of the noble Baroness, Lady Masham, have stayed with me. She said:

She went on to say that people were arguing that people with disabilities should not be brought into the world. As I say, it is late and I should like to quote even more. But that was a case of a lady whose problems were corrected in later life but who could have been terminated if somebody had not allowed her to go to term. We should be championing those people who perform such operations and give people a life. My support for the amendment is strengthened by the words of the noble Baroness.

I prepared an awful lot to say, but I will not go on. As the six hours that I have been sitting here tediously went by, when those areas in which I was not involved were debated, I listened very carefully—as I say, it was an education. But what a stark contrast between that and what we have heard from the noble Baroness and what we have heard about the efforts to assist in the creation of human life, as this Bill has made its way through its various stages. If the noble Baroness tests the opinion of the House, as I hope she will, I shall follow her into the Lobby.

Baroness Hollis of Heigham: My Lords, I hope that your Lordships will not follow the noble Baroness into the Lobby. We have heard a lot tonight about the

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rights of the unborn foetus. I am not convinced that a foetus as such carries rights; we have responsibilities to it, but I think that humans grow into rights. However, the noble Baroness, Lady Warnock, may wish to take me on about that.

What we have not heard about is the position of the woman. I ask your Lordships just for a moment to put yourselves into the position of a woman who has had tests and has learnt at 25 weeks that the foetus that she is carrying—and it may have been a much wanted child—has a severe disability or abnormality. I agree with the noble Lord, Lord Alton, that we are talking about severe abnormalities. On reflection, after discussing the situation with a partner and possibly after counselling, the woman decides that the right thing for her and possibly for other members of her family is to seek an abortion. If this amendment were passed, she would not be able to get that abortion. What would we be saying to that woman? We would be saying that, although she does not wish to continue with the pregnancy, we will require her to carry that foetus, even though she knows that it is severely disabled, for another three months with growing discomfort, going through the pain and to some degree the risk of childbirth, and to have at the end of it a child that she had sought not to have, with all the stress and the potential for postnatal depression and the like that might follow.

That woman has rights, too. The only person who can make an informed choice, within the framework of the law—although some women will make one choice and others a different choice—is the mother of that foetus and potential child. We would be unwise to seek to impose on that potential mother that she bring that foetus to full term against her wishes and against her own health—and certainly against her own judgment—because we think that it would be good for her and for that foetus to continue despite its severe abnormality. I do not think that that is a decent and proper way in which to go. Other people may have a different view. Everyone is entitled absolutely to have a different view on this, and everyone in that situation would make a different call and a different judgment. But the person to make that call and that judgment is the potential mother and no one else.

Lord Davies of Coity: My Lords, as I understand the amendment, it is limited to abortion in respect of a child with a severe disability. This is not a debate about the general concept of abortion. I support the noble Baronesses, Lady Hollis and Lady Gould, and I shall be going into the Lobby in opposition to this amendment. I shall describe a circumstance with which many of your Lordships may identify. I have seen a situation where a child was born, before the technology that we have today, severely mentally and physically handicapped. The parents have, for about 10 or 12 years, tried to identify with that child and bring him up, making a total sacrifice in the knowledge that the child does not really recognise them after all those years. In the end, the parents are so worn out that the child goes into care, still not identifying his or her own parents and not even knowing who they are. I do not want to see any parent—particularly a woman—being subjected to

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that kind of sacrifice. Therefore, I will support the Government or, at least, the opposition to this amendment. The woman has a right to choose.

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Earl Ferrers: My Lords, I would like to agree with the noble Baroness, Lady Hollis of Heigham, but I am afraid that I do not. Anyone who ventures into the field of abortion—I have never particularly done so before—is treading on very tender ground. Since the days when the noble Lord, Lord Steel, introduced his Bill on abortion, which was deeply controversial, there have been lots of abortions, to such an extent that some people almost regard abortion as a choice. That was the word of the noble Baroness, Lady Gould of Potternewton: we have a choice. These abortions have gone on and, as far as I understand it, the amendment tabled by the noble Baroness, Lady Masham, says that you cannot have an abortion after 25 weeks. At the moment you can have an abortion up to the point when the child is born.

When does that child become a human being? Is it the point at which it comes into the world, because that is the moment when it becomes, as it were, a free human being? It is the same child that was in the womb the day before. Is it really justifiable to say that that child is wrong and, therefore, we ought to abort it? We all want to have perfect children, perfect lives and perfect health, but it does not work out that way.

I am apprehensive, and always have been, about the wisdom of abortions at an early stage, because you are destroying some form of life. I am deeply apprehensive about it at a later stage, because it is very difficult to tell when that child is a foetus and when it becomes a human being with a soul. Aborting children—and I have no experience of this other than seeing pictures—can be pretty grisly. Destroying human beings, even if they are in the womb, is a terrible task to take on. I hope that the amendment will go through, because I do not think it right that human beings should decide at one moment that this child, who is a human being, should not be born.

Baroness Meacher: My Lords, I had no plan to speak in this debate; indeed, I promised our colleagues on the Door that I would not. We joked about it, so I must offer my apologies. I agree absolutely with everything that the noble Baroness, Lady Hollis, said, but I want to speak about the rights of the child. The Mental Capacity Act refers to the child having capacity; if they do not have capacity, it is important for the professionals to consider their best interests. If we could hold to that, we would be doing pretty well. I happen to know two tiny children who were born at 25 weeks with very severe cerebral palsy. They were natural births. Those two children cannot breathe naturally; they have to be helped to breathe. They will never talk. They lie on their backs and can do nothing. My belief is that there are children, born at those very early ages, who are not viable people. It would be in their best interests to have been aborted. There rests my case. We need to consider the best interests of these babies.

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Baroness Williams of Crosby: My Lords, I shall be as brief as was the noble Baroness, Lady Meacher. I believe quite simply that it is right and proper that the same laws should apply to people who are disabled as to those who are not. Therefore, if a foetus is viable, which it will be after the age of 25 or 26 weeks, it should be permitted to live. It will be a matter of nature whether or not it lives.

We have heard about a great many grim cases. I can equally come up with a case of a very close friend of mine who had a baby with very serious Down’s syndrome, but who has given her more pleasure than anything else in her life. The child has been an immense treasure, and she has no other children. We can all argue these cases for good or for evil. My point is a very simple one. We have a society where once people are born we increasingly go to extraordinary lengths to look after them if they are disabled. All around our country, and quite rightly so, we have ramps and lifts and all kinds of additional things that make it possible for a heavily disabled young person or child to live and enjoy a decent quality of life.

Many of us will be disabled, not because we were born with a genetic disability but because we have suffered an accident that has heavily disabled us. We have to be accepted in society. Society has to make changes to ensure our lives are worth living. One of the things that really frightens me is that, if we pick out the potentially disabled at the age of 25 or 26 weeks, we will sooner or later develop an attitude towards the severely disabled who have been disabled since birth. We ought to be clear on the logic of this. If we are to treat disabled people in all possible ways as potentially having exactly the same quality of life as we do and doing everything we can to make that conceivable, then we have to carry that through always, from when one becomes viable to when one reaches the natural end of one’s life.

Baroness Tonge: My Lords, I congratulate the noble Baroness, Lady Masham, on having the courage to bring the amendment to the House. In many ways we have had a very moving debate again this evening. We had one in Committee.

I would like to add one or two things to the debate. I will try not to be very long. The noble Lord, Lord Steel, pointed out that we are talking about less than 1 per cent, and in the case of very disabled babies much less than 1 per cent, of the total abortions done in this country.

My noble friend Lady Williams said that we should have equality in the timing of when abortion is permitted. The very reason we say after 24 weeks for severely disabled foetuses is because the tests cannot be done to make sure that the baby has a certain condition until 24 weeks, and 26 weeks in some cases. Therefore, that means a woman carrying a handicapped baby has missed the time limit that is put on normal abortions of 24 weeks.

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