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I said in Committee that we were not talking here about disabled human beings, but about some grossly abnormal human beings; many of those whom I have seen bear little resemblance to human beings. In Committee I mentioned the child with anencephaly

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that I delivered. It had no brain and a grotesque appearance. I spent some time as a medical student in a hospital that was meant for very severely mentally and physically disabled children. It was the most terrible two weeks I have ever spent in the whole of my career, seeing those poor creatures, some of them a little less affected than the others, and maybe trying to feed someone who could just lie in a cot at the age of 35 or 40 and do absolutely nothing else. We are talking about serious handicap.

The noble Lord, Lord Alton, questioned “seriousness”, and asked how serious should a disablement be. We have heard from two noble Lords how surgery in the womb and outside the womb during pregnancy is being developed. That is wonderful news for those foetuses that can be helped in this way. Some mothers of course choose to go down that road to help their babies in that way, but we should not impose that solution or promise it when it does not exist in all seriousness.

I have just one other point to add on the famous cleft palate case that nearly everyone has mentioned. I would like to tell the noble Lord, Lord Clarke, that about 1,000 babies are born each year with a cleft palate. Looking at the incidence of cleft palate among children generally, that means that not many of them are being aborted. The surgeon he spoke of should have the normal number to practise on. People are not having late abortions for that reason.

The noble Baroness, Lady Gould, mentioned the disabled students. We heard a moving speech from one of them at a meeting in the other place last week. The important thing about the NUS disabled students is that they are elected representatives. They are not interest or lobby groups; they are elected representatives of disabled people who do not want a woman’s choice to be affected by these considerations. They feel it is the woman’s right to make the decision.

Finally, supporting this amendment would mean that every woman in this country who has a severely disabled child would have to carry it to term or perhaps go through the same trauma as a 17 year-old Irish girl recently, who was known to have an anencephalic foetus and was shipped across to here, then back to there, and went through the law courts in Ireland before a decision was finally somehow made that she could have a termination of her pregnancy. Are we going to put all women in this country in that situation if they have a handicapped foetus?

I ask the people who support this amendment to have a bit of compassion. They speak as if they are being extremely compassionate and want to save the life of the child. Let us have some compassion for the mother who is carrying these pregnancies too. I do not believe that the noble Baroness, Lady Masham, or her supporters are cruel or inhumane. Of course they are not, yet it would be cruel and inhumane in the extreme to make women carrying seriously handicapped babies go to full term and deliver a child that they know would never have any quality of life at all, even if it survived the birth.

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Lord Darzi of Denham: My Lords, as the House knows, the Government have—as previous Governments before them—a neutral stance on abortion and amendments are subject to a free vote. I will restrict my comments to setting out the reasoning behind the existing legislation and the likely effects of the amendment.

First, why do we screen for foetal abnormalities? The purpose of screening includes the identification of: anomalies that are not compatible with life, as we heard earlier; anomalies associated with high morbidity and long-term disability; foetal conditions with the potential for intrauterine therapy, and, as suggested earlier, early research in this field shows promise; and foetal conditions that will require postnatal investigation or treatment.

As far as possible, prenatal screening is to ensure that women and their partners have accurate information about the foetus. At whatever stage foetal abnormality is diagnosed, women and their partners need good-quality information about the implications of that result and the options open to them. The context in which parents choose whether to have a child should be one in which disability and non-disability are valued equally and parents should receive comprehensive, balanced information and guidance on disability, the rights of disabled people and the support available.

On the examination of terminations that are currently performed under this paragraph after 24 weeks, one finds that these cases are usually complex. There may be multiple anomalies rather than one. When the forms are classified, the code which is used is that of the primary condition. This does not always tell the whole picture of each individual case, which is exactly why, in 1990, Parliament chose not to define “serious handicap” in the Act. Parliament chose to leave this to the expert judgment of the two doctors, based on the merits of each individual case. The doctors must form their own opinion of the seriousness of the handicap the child would suffer if born, taking into account the facts and circumstances of the case. The existing guidance from the Royal College of Obstetricians and Gynaecologists furthermore urges obstetricians to err on the side of caution when considering whether an abortion could be performed on the grounds of foetal abnormality.

9.30 pm

Many of your Lordships will be aware that the Science and Technology Committee in the other place has recently reviewed this issue, and its view, with which the Government concur, is that an exhaustive list of abnormalities is not feasible, nor desirable. The Government have accepted the committee’s recommendation to review the guidance on this subject, and have commissioned the Royal College of Obstetricians and Gynaecologists to review its 1996 guidance on the termination of pregnancy for foetal abnormality.

As regards the point raised by the noble Lord, Lord Alton, on foetal pain, the 1997 report of the Royal College of Obstetricians and Gynaecologists concluded that before 26 weeks’ gestation the nervous system has not developed sufficiently to allow the foetus to experience pain. I am not aware of any new evidence that has changed that conclusion. 4-D imaging is an exciting

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development in the field of imaging. Although the noble Lord made the point that the images illustrate the development stages of the foetus, from a scientific perspective they do not change the current knowledge about foetal viability or foetal pain. On the last question he asked, on the legal status of the foetus, both domestic and European law on discrimination—that includes the European Convention on Human Rights—apply only to living persons. The foetus is not regarded as a living person in domestic law and has no rights independent of its mother until it is born alive. The courts have consistently held that a foetus is not recognised as being a separate person from its mother.

Earl Ferrers: My Lords, will the Minister be kind enough to repeat that because it is important. When did he say that a child was or was not a live person?

Lord Darzi of Denham: My Lords, I referred to the legal status of the foetus. As regards the legal rights of a child, it is regarded in domestic and European law as being independent only when it is born; that is, after the birth of the child.

Baroness Knight of Collingtree: My Lords, some years ago a man who had four grandchildren, with another expected, drew up his will. He made arrangements to provide for the expected grandchild. There was a row and the people concerned took the matter to court. The court agreed that the child was alive at the time the grandfather died. Therefore, although he was not born, he was considered to be a person and he got the money that the grandfather left him.

Lord Darzi of Denham: My Lords, I am grateful to the noble Baroness. I have no doubt that the child would have had the right to the money once he was born.

Lord Alton of Liverpool: My Lords, will the noble Lord also confirm to the House that babies have been born as early as 21 weeks’ gestation and have survived?

Lord Darzi of Denham: My Lords, I am not disputing the scientific advances in that field. The exact accuracy of which week is something I could look into and refer back to, but certainly we have seen advances in that field.

This has been an interesting and detailed debate and I thank noble Lords for their contribution. As I said earlier, the Government have, like previous Governments, a neutral stance on abortion and amendments are subject to a free vote. Therefore, there is little I could add that has not already been discussed and I will leave it to your Lordships to draw your conclusions.

Baroness Masham of Ilton: My Lords, I thank all noble Lords who have spoken. It has been illustrated tonight that a committee should have been set up. A lot needs looking at and discussing.

I would just like to talk about one incident. I was invited to see a girl who had had a termination in a local hospital. She happened to be disabled and I asked her why she had a termination. She said, “I wanted to see if I could get pregnant”. The baby was aborted. It was perfectly normal. The legislation of the noble Lord, Lord Steel, has now got out of control because it is being used as a convenience.

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I especially thank the noble Lord, Lord Clarke, for staying behind. He has a wife who needs his help because she has a problem. Therefore, would he please give my thanks to his wife for letting him stay?

We need to look at the issue more carefully. Ministers will know that a report has just come out about gynaecology and maternity services throughout England. London has come out very badly, but I am happy to say that the north has had better marks. However, more has to be put into the safety of children and mothers. The whole issue should be looked at in great depth and I hope that another place will also do that, because it will find problems across the country.

Of course, I want to protect the lives of many unborn children and I do not think that the Minister has answered the question of my noble friend Lord Alton: how serious is “serious”? That is the big problem that is facing us now because the club-foot and the cleft palate are not very serious disabilities—they can be put right—but those are the sort of things on which this is happening. It is very serious.

The House is pretty divided in this debate and I thank noble Lords again. I think that it will be brought back again in another place. Therefore, I beg leave to withdraw the amendment.

The Deputy Speaker (Lord Geddes): Is it your Lordships’ pleasure that the amendment be withdrawn?

Noble Lords: No!

9.38 pm

On Question, Whether the said amendment (No. 163) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 89.

Division No. 1


Alton of Liverpool, L.
Bridgeman, V.
Burnett, L.
Clarke of Hampstead, L.
Denham, L.
Fearn, L.
Ferrers, E. [Teller]
Fookes, B.
Hylton, L. [Teller]
Knight of Collingtree, B.
Mackay of Clashfern, L.
Maginnis of Drumglass, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
O'Cathain, B.
St John of Fawsley, L.
Tebbit, L.
Trimble, L.
Ullswater, V.
Williams of Crosby, B.


Adams of Craigielea, B.
Addington, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barker, B. [Teller]
Bernstein of Craigweil, L.
Bhattacharyya, L.
Bilston, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brookman, L.
Carter of Coles, L.
Chandos, V.
Clark of Windermere, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Corston, B.
Craigavon, V.
Crawley, B.

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Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
D'Souza, B.
Dubs, L.
Evans of Temple Guiting, L.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Garel-Jones, L.
Golding, B.
Gould of Potternewton, B. [Teller]
Grocott, L.
Hamwee, B.
Harris of Haringey, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Hughes of Woodside, L.
Judd, L.
Kirkwood of Kirkhope, L.
Krebs, L.
Layard, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
Mawson, L.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Pitkeathley, B.
Prosser, B.
Rea, L.
Redesdale, L.
Roper, L.
Rosser, L.
Royall of Blaisdon, B.
Shutt of Greetland, L.
Simon, V.
Soley, L.
Steel of Aikwood, L.
Taylor of Blackburn, L.
Taylor of Holbeach, L.
Thomas of Walliswood, B.
Tomlinson, L.
Tonge, B.
Tunnicliffe, L.
Tyler, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.49 pm

Clause 59 [Surrogacy arrangements]:

Baroness Hollis of Heigham moved Amendment No. 164:

The noble Baroness said: My Lords, in the absence of the noble Baronesses, Lady Finlay and Lady Jay, I have been asked, if the House permits, to move this amendment in their names and I promise no vote. As the noble and learned Lord, Lord Mackay, said in Committee, this issue concerned the pre-legislative scrutiny committee: that is, the postcode lottery of IVF treatment and that the NICE guidelines—they are not targets or requirements—did not appear to be followed as we believe they should.

That there is such a lottery can be in no doubt. The noble Baroness, Lady Finlay, furnished me with statistics to that effect. I understand the figures are for 2006-07 and they are the latest figures that she has. For example, East Sussex has a population only slightly less than that of Dorset’s PCT—326,000 to 395,000—yet East Sussex gave IVF treatment to only 32 women and Dorset treated 110 women. Mid-Essex, with a population of 359,000 in its PCT, treated 43 women; and south-west Essex, with 420,000 people in its PCT, treated 76 women, nearly double. Similarly within London, Camden,

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with 210,000 people in its PCT, treated 51 women; and Croydon, with a population of 343,000, treated 52 women. There is a variation of 50 per cent or more between adjacent authorities, which suggests that it is not just a matter of demographic profile, local needs or local wishes as expressed through PCTs.

Why does this matter? Your Lordships know the arguments, which were much more fully rehearsed in Committee. There are basically two. First, human misery, so eloquently described by the noble Lord, Lord Winston, led to the desperation of many women and their partners. If they could not get treatment from the NHS, that misery sent them into the private sector at high cost. Given that the private sector worked at profit, it sometimes offered treatment that was profitable but not efficacious—bordering, in some cases, on the exploitative. If it was improper, as I believe it is, to buy babies, there must be a question mark over the ability to buy embryos as opposed to having them as part of the gift solution within the NHS, which I suspect most of us would much prefer. The first reason is therefore that finance becomes a barrier and, once it is in the private sector, there is the risk of unnecessary and exploitative treatment in a competitive financial environment.

The second reason why the pre-scrutiny committee was concerned about the failure of so many PCTs to follow NICE guidelines was that it also means that, in desperation—and as a result of tight finance—many would-be mothers will seek the implantation of multiple embryos. Again, as many of your Lordships said in Committee, this presents both a high risk to the mother and foetus and, if there is a multiple birth, often a high cost to the authority in terms of the support—cots and beds—needed for small, premature, low-weight babies struggling with respiratory and feeding problems.

The amendment is modest. It simply requires the strategic health authorities to report annually on local commissioning arrangements. That is a gentle way of highlighting the problem in exactly the same way as reports from the Audit Commission highlight problems for local authorities by use of comparators of appropriate adjacent authorities with which it is proper to compare the cost, quality and delivery of services. Such reports work. They still respect the need for local choice, and the fact that different areas may have different demographic profiles and needs. They do make sure that, if there is a judgment not to spend as much on IVF treatment in one area than another, that is based on information, and not ignorance, as now too often applies.

I have read again the Committee speech of my noble friend Lady Royall, in which she said that this was the subject of an expert working group—which is splendid. I hope that that will be pursued, as I am sure it will be. Such an annual report would help the expert working group come to more firmly based and rooted solutions.

Therefore, I see this amendment as complementary to what the Minister is already proposing to suggest to the House—if her Committee speech is a guideline. It is in this context that we want to see as much IVF treatment in the NHS as is affordable, that there should not be a postcode lottery and that money

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should not be a hurdle to parents seeking to have a child. We should not expose parents to the profit motive of the private sector and also to the risk of multiple implantations. In that context, I hope my noble friend will agree that anything that encourages PCTs to provide equity of access to IVF treatment—and, as NICE has suggested, to a required and appropriate number of cycles—should be supported. I hope that my noble friend will welcome this amendment. I beg to move.

Lord Alton of Liverpool: My Lords, I should like strongly to support, as I did at earlier stages, the principles underlining the amendment so ably moved by the noble Baroness. We do not have anything to fear from extensive reporting. It enables us to look at the empirical evidence and, especially, as the noble Baroness has said, at issues such as multiple pregnancies and the subsequent risks of disability, which, topically, follow on the back of the previous debate in the House.

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