Lord Alton of Liverpool rose to ask Her Majesty’s Government whether they will review the provisions in statute that permit conditions such as cleft palate and cleft lip to be regarded as “serious handicaps” for the purposes of terminating the lives of the unborn after 24 weeks’ gestation.
The noble Lord said: My Lords, I am grateful for the opportunity to raise the issue this evening in this short debate. I am grateful to those members of your Lordships’ House who are to participate in the debate; and I am especially grateful to the most reverend Primate, who is here for our proceedings.
In 1967, Parliament decided that a pregnancy could be terminated by a registered medical practitioner if two registered medical practitioners were of the opinion, formed in good faith, that there was a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Subsequently, in 1990, Parliament decided to extend that provision, authorising abortion up to and even during birth on those who would otherwise be born with serious disabilities. In almost every other instance, the legal time limit for abortion is 24 weeks. I recall that debate well, having spoken strongly in another place against what I believed to be a discriminatory provision. Tonight’s debate provides an important opportunity to highlight the fact that many conditions that are not serious handicaps and were not intended to be covered by the 1990 amendment to Section 1(1)(d) of the Abortion Act are now being used to justify abortions.
Disability rights groups, such as the Disability Rights Commission and the Disability Awareness in Action, are extremely concerned about the application of Section 1(1)(d) and the way it reinforces discrimination against people with disabilities. These are its words:
- “The Section is offensive to many people; it reinforces negative stereotypes of disability and there is substantial support for the view that to permit terminations at any point during a pregnancy on the ground of risk of disability, while time limits apply to other grounds set out in the Abortion Act, is incompatible with valuing disability and non-disability equally”.
I recognise the Government’s commitment to eradicating discrimination against people with disability and especially welcome the draft Disability Discrimination Bill. But there really is not much point in insisting on loop systems or ramps for public buildings if the law is to be used to deny a disabled person the right to life itself—and specifically to treat disabled people in statute differently from the able-bodied. I hope that when the Minister replies, he will tell us whether the Government intend to use the opportunity of the draft Disability Discrimination Bill to address the concerns of the Disability Awareness in Action group and the Disability Rights Commission—and, indeed, to eradicate eugenic abortion.
In the years 1968 to 2001 inclusive, 4.56 million reported abortions were performed on residents of England and Wales. Of those, 63,897, or 1.4 per cent, were performed under Section 1(1)(d)—cases in which there was a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. As the Government acknowledged in a Written Answer in the other place on 30 January this year, the term “seriously handicapped” has not been interpreted by any court decisions.
Since 1990, when the law was amended to allow post 24-week gestation abortions for disability, the number of abortions performed under Section 1(1)(d), as amended, has increased substantially. In 1990, there were a total of more than 1,601 such abortions; 21 after the 24 weeks’ gestation. In 1995, those figures had increased to 1,828; 63 after 24 weeks’ gestation. In 2002, a total of 1,863 abortions were performed for disability, of which 110 were after 24 weeks’ gestation. So there has been an inexorable rise.
A closer analysis of those disturbing figures proffers further cause for concern. The annual abortion statistics include a table setting out the various conditions for which abortions under Section 1(1)(d) have been performed. Looking at the 2002 statistics, I was shocked by the vague nature of the classification. For example, in 2002, 83 abortions were performed for “other malformations of the brain”, 19 of which were performed after 24-weeks gestation. Four abortions were performed for “eye, ear, face and neck” malformations. Thirteen post-24-week abortions were performed for “malformations of the cardiovascular system”, whatever that may mean. Nineteen abortions were performed for malformations of “the respiratory system”—again, extremely vague—four of which were after 23 weeks’ gestation. I could go on.
This vague classification is simply not good enough. When unborn lives are terminated for disability, the least that we should expect is a proper explanation of why. Do the Government have any plans to oblige doctors performing abortions under Section 1(1)(d) accurately to state the nature of this “serious” disability?
This is an issue to which I am returning. In 1990, in another place, I moved an amendment to require the nature of the disability to be stated on the green form. That was defeated on the casting vote of the Speaker of the House because he had to uphold the status, that being the tradition in the other place. I believe that it is now timely to return to this issue, given the experience in the mean time.
The number of post-24-week gestation abortions for disability has risen exponentially since 1990. As it is now generally acknowledged that after 24 weeks the unborn child is sentient and, if born prematurely, viable, one wonders whether the growing practice of post-24-week gestation abortion for disability is contrary to Article 2 (the right to life) and Article 3 (the right not to be subject to inhuman and degrading treatment) of the European Convention on Human Rights, which the Government have properly incorporated into UK statute. I hope that the Minister will set out what advice the Government have received on that point.
Since 1996, the Royal College of Obstetricians and Gynaecologists (RCOG) has published guidelines on the termination of pregnancy for foetal abnormality. According to the RCOG, a person is to be regarded as seriously handicapped only if he needs the support described in points 3 and 4 of the World Health Organisation’s scale of the severity of disability. Point 3 refers to “assisted performance”; that is, the need for a helping hand. Point 4 refers to “dependent performance”; that is complete dependence on the presence of another person.
How can it be said that those unborn children with, say, Down’s Syndrome, of whom six were aborted at post-24-weeks gestation in 2002, or those children with malformations of the “eye, ear, face and neck”, fall within the RCOG’s and the WHO’s definition of “seriously handicapped”? In the case of Re B (A minor) (Wardship: Medical Treatment) , the courts held that it would be unlawful to withhold treatment to remove an intestinal blockage from a child with Down’s because there was no evidence that it was in the child’s best interests to die. If the courts regard the Down’s child once born as not falling within the WHO’s definition of disability, surely the same logic should apply to the Down’s child in the womb.
According to the RCOG, one factor to be considered in assessing whether the unborn child would be seriously handicapped is the remediability of the condition. So how is it that over the past six years, 26 babies have been aborted because of suspected cleft lip or cleft palate, one after 24-weeks gestation?
In its own guidelines, the RCOG states that when certifying that there is a “substantial risk” of “serious handicap”, medical practitioners,
- “should bear in mind that the risk should also be likely to be considered substantial by informed persons with no personal involvement in the pregnancy and its outcome”.
Note the use of the word “informed”.
Having spoken to medical practitioners, I understand that current medical practice is such that obstetricians and gynaecologists do not refer to specialists in the condition from which that child suffers. It is therefore doubtful whether they can obtain an accurate view about whether the child has a serious handicap in any event. For example, when faced with a possible diagnosis of cleft palate, how many obstetricians and gynaecologists call in a specialist in cleft palate for an opinion about its severity? Perhaps the Minister will tell us today or, at least, promise to find out.
The terms cleft lip and cleft palate are used interchangeably, including in the abortion statistics, but of course there is some difference. They are not life threatening conditions. Many noble Lords know people with a cleft palate. I have a teenage godson with that condition. It would be absurd to argue that someone like him should have been denied the right to life.
In June 1990, when the other place was considering extending the Abortion Act to allow abortion up to and including birth, my colleagues and I received a legal opinion from Professor John Finnis and Professor John Keown, both of whom at the time were at Oxford University. Both Professor Finnis and Professor Keown warned that the proposed legislation would lead to abortion until birth in a disturbingly wide range of cases and that,
- “some doctors will interpret the onerous conditions that apply to them as including a hare lip or a cleft palate”.
I was accused at the time of being responsible for suggesting that would happen. The evidence now demonstrates that it has happened and is a reality.
We need to look at this issue again. I am glad to say that I am not alone in holding that view. I refer your Lordships to Early Day Motion 186 in another place signed now by 54 Members of the House of Commons—from the Labour Party, the Conservative Party, the Liberal Democrats, the Ulster Unionists, the DUP and Plaid Cymru. That is an extraordinary range of people, which also includes Dr Jenny Tonge, Dr Vincent Cable—with whom I would not agree on these particular issues—and, yes, people like Miss Ann Widdecombe and Kevin McNamara, but also Gerald Kaufman and a range of people who would certainly not normally take what might be regarded as a so-called pro-life position.
So I think that there is a mood in the country, questioning why it is that in these specific circumstances we are permitting abortion up to and even during birth on a child with very minor abnormalities and disabilities. It is time that we looked at these questions again, and I am grateful for the opportunity this evening of being able to raise this question in your Lordships’ House.
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