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Human Fertilisation and Embryology Bill [HL]

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, "““to admire mere choice is to refuse to choose””." 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, "““there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped””." The noble Lord, Lord 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. 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, 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 has 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.