My Lords, I propose that the Bill be read a second time with some trepidation, not because this is a momentous Bill but, on the contrary, because it is a very modest measure indeed.
I shall go through its clauses, which are very few. The first requires the Secretary of State to establish a committee and allows the Secretary of State to appoint the members of that committee. I have not chosen to specify who they should be or how many they should be, because I trust the Secretary of State in whatever Government, of whatever political colour, to make sensible decisions about that and appoint appropriate and skilled people. The clause also states what the purpose of the committee is, which bears reading out. It is
“to be a source of evidence-based, scientific expertise on the sentience of the human foetus in the light of developments in scientific and medical knowledge, and to advise the government on the formulation of relevant policy and legislation”.
The second clause requires the committee to publish reports. It actually requires the committee to publish only one report per annum, for the purposes of transparency, saying what the committee has done and giving an account of any income or expenditure it has had, as well as who its members are—a normal sort of annual report. The Government are not required to respond to that, but the committee is then free to publish further reports of a more scientific character. Clause 3—I shall come to this—requires the Government to respond to reports of that character. The other part of Clause 2 is language that ensures that the Bill is consistent with devolution legislation.
Clause 3 refers to the response that the Government have to make to those reports. There is nothing to stop the Government responding by simply saying that they have noted the report, if that is as far as they wish to go.
Finally, Clauses 4 and 5 are supplementary and general clauses, which I have been advised are appropriate for this Bill.
Why would such a committee be needed, and what value would it have? The question of human foetal sentience has been addressed by a number of bodies, but principally by the Royal College of Obstetricians and Gynaecologists. As the very helpful note from the Library makes clear, the current conclusion—because, of course, this is a shifting and developing scientific field—is that, to date, evidence indicates that the possibility of pain perception before 28 weeks of gestation is unlikely. However, one of the members who formed the committee that reached that view has now changed his mind and takes the view that the perception of pain could arise as low as 12 weeks.
The British Association of Perinatal Medicine takes the view that foetuses born as early as 22 weeks’ gestation show physical and physiological responses to pain, and there is no reason to think that foetuses at this gestation are any different. In addition, it might be said that the NHS recommends the use of analgesia for the foetus in the case of operations in utero for spina bifida from 20 weeks onwards.
My Lords, when I saw this Bill on our prospectus I was immediately suspicious. It follows close on the heels of an effort during the Public Order Bill to enable protests on the doorstep of abortion clinics. Happily, that effort failed and it was agreed that buffer zones were necessary. The amendment would have allowed people who totally opposed the termination of a pregnancy to harass women as they entered clinics for medical attention.
Why would an independent committee be needed to respond to the issue before us today? The Royal College of Obstetricians and Gynaecologists updated its research and guidance less than two years ago, in 2022. The royal colleges—I am a fellow of three of them—are the seats of high-level monitoring of global developments in research and conduct of medical matters. They do it with great care and their research relates to what happens not just in the United Kingdom but around the world.
Why am I concerned? The politics of the United States of America is riven with divisions on the issue of abortion. For many decades it has been weaponised by far-right, deeply misogynistic organisations calling themselves Christian, which oppose women’s right to reproductive freedom. I always say, “Follow the money”. Dark money has surged into the United Kingdom’s anti-abortion groups in recent years. We should be concerned about overseas political influence inside our country. Sadly, many far-right organisations are being funded by such sources. Shadowy funds whose sources are obscured or not fully disclosed play an alarming part in enabling think tanks and far-right political groups to distort our politics.
One group, the Alliance Defending Freedom, has doubled its activities in this country in the last couple of years. Founded in the United States in 1993, the Alliance Defending Freedom—the freedom of only some—is an influential conservative group that aims to promote Christian principles and ethics. It is behind legal efforts to roll back abortion rights, remove LGBT+ protections and demonise trans people—that is not very Christian, and I count myself as one. It claims that its tireless work—
Is the noble Baroness suggesting that I have been in receipt of dark money or any money at all, or would she like to take the opportunity to state that she is not making such an allegation?
I am perfectly happy to say that some innocent dupes are used by some of the organisations funded in this way.
This organisation claims that its tireless work helped the United States Supreme Court overturn Roe v Wade, which guaranteed the right to abortion. The ADF has supported controversial anti-abortion activity in this country, including supporting and funding protesters outside clinics. We are seeing the ramping up of spending to bring US-style abortion politics into our country.
It is quite clear that the purpose of the Bill is to seek to roll back advances that have been made in relation to abortion, and to try to reduce the time limits we currently have. The House should know that in 2020, £390,000 came through the ADF into the UK, and it is not disclosed where those funds come from. That money doubled to £770,000 in 2022. We do not have a current figure, but I am sure it is multiplying at a rate of knots. We are seeing, I am afraid, an effort to weaponise the issue of abortion and women’s freedom in order to create divisions in our society. I really hope the House sees the purport in the Bill.
My Lords, I believe I am the next speaker; thank you.
There was an occasion in the last Session when a speech was made—it may well have been by the noble Baroness, Lady Kennedy of The Shaws—and it was so impassioned that the late Lord Cormack looked at me as the next speaker and said, “Follow that!”, and I said, “I shall try”. Sadly, I failed to follow it very effectively.
Today’s debate is clearly very heated. Yet, as the noble Lord, Lord Moylan, said in his opening remarks, it is a very small Bill and is setting the framework for a committee. It is supposed to be an evidence-based committee building on scientific expertise and changes in scientific and medical knowledge. From sedentary positions from the Opposition Front Benches, I have heard that the Bill has everything to do with abortion. Yes, it may have something to do with abortion, but not only abortion. It has nothing on the face of it, or in terms of intent, that is about rolling back women’s rights. What is discussed in the excellent briefing from the Library is that the Royal College of Obstetricians and Gynaecologists and the British Medical Association have different guidance.
The British Medical Association has suggested that
“even if there is no incontrovertible evidence that the fetus feels pain, the use of fetal analgesia when carrying out any procedure (whether an abortion or a therapeutic intervention) on the fetus in utero may go some way in relieving the anxiety of the woman and health professionals”.
Surely, if a foetus of 24, 25 or 26 weeks’ gestation is sentient—whether the proposal is for a medical intervention or for abortion—no one would want the foetus to suffer, including the woman carrying the foetus, whether they intend to carry it to term or they do not wish it to live. Surely nobody wants to inflict pain. If we understand at what point foetal sentience really comes into play, appropriate decisions and recommendations can be made. At the moment, arrangements for medical interventions are in place only for spina bifida, but there are other cases of in utero interventions that should be explored.
My Lords, first, I apologise to the noble Baroness, Lady Smith, for my inability to read. Secondly, I congratulate my noble friend Lord Moylan on bringing forward this Bill. To the noble Baroness, Lady Kennedy, I say, not only am I not in receipt of any dark money; I am not a member of any sort of pro-life group, APPG or anything like that.
I think it fair to say that the Bill is not that likely to become law, so I suggest that my noble friend is putting down a marker. The noble Baroness, Lady Smith, expressed very well the way we should be looking at these things, on a scientific basis. I am, in fact, going to talk about abortion, which is a path down which one should tread very warily. Last year, there were some 200,000 or more abortions, of which the vast majority will have been perfectly healthy foetuses that people just did not wish to take to term. That was not the intention of David Steel in 1967; it was thought to be quite a minor adjustment to the number of children that would be aborted.
My own view is that abortion is necessary on many occasions, but it is a necessary evil. It is not something that anybody could contemplate lightly or would wish to see happen—either the mother or indeed the child. This is not about women’s rights. The reason why I am putting down a marker today is that there is talk of decriminalising late abortions, after one or two very high-profile cases of a mother being prosecuted. In the particular case I am thinking of, a mother aborted at home, through drugs, a 36-week-old foetus.
Of course, that child could have lived perfectly happily, so we have to ask ourselves not about women’s rights, but about where murder begins and murder ends. A child that could have been born perfectly happily—that is being born in the ward next door—being aborted when it could have lived, seems to me to be a very, very serious matter. I put this down as a marker because I hope that nobody will pursue the idea that we decriminalise late abortions, which may take place at home. This is not about women’s rights, but about a decent, humane society.
My Lords, in declaring non-financial interests as listed in the register, I express my gratitude to the noble Lord, Lord Moylan, for bringing in this Bill. I entirely endorse what my noble friend Lady Smith of Newnham has said to the House today. Being pro-life—for a woman and a child—and believing in the right to life as a human right does not make people misogynist bigots, and they should not be caricatured as such.
During the passage of the Animal Welfare (Sentience) Act 2022, I wrote that it left a gaping hole because of the lack of any comparable mechanism for the consideration of the human foetus, a point the noble Lord made earlier. I agree with what CS Lewis said in support of the National Anti-Vivisection Society: if you start by being cruel to animals, you will also end up being cruel to human beings. It is that incongruity, and how we treat the most vulnerable of our own species, that is close to my heart, and I make no apology for that.
In the 18th century, Jeremy Bentham argued that the relevance of pain was not dependent on the ability to think rationally, but rather to feel, as animals can do. In 1789 he wrote,
“the question is not, Can they reason? Nor, can they talk? But, can they suffer?”
There is an analogy here with foetal sentience, one which emerged in two ad hoc inquiries held in Parliament and in which I took part, one chaired by the late Lord Rawlinson of Ewell, a former Solicitor-General. We said that, like a newborn infant, a foetus may not be rational in the way an older child or adult is, but, if there are grounds to believe that a child in the womb may be able to suffer, we have a responsibility to do what we can to minimise such suffering. If we are uncertain about the exact point at which, and by how much, an unborn baby suffers, we should always err on the side of caution.
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So it is fair to say that there is considerable breadth of view on the question of human foetal sentience and when it kicks in. We would all benefit—government and all the relevant professions—from having a forum in which a clearer and more determined view, and one which developed over time, could be thrashed out between different medical professions. It would also have the advantage that the Government generally, in responding to questions on this issue, have tended to rely on the work of the Royal College of Obstetricians and Gynaecologists, which places a heavy burden on it. The advantage of having a committee such as I propose would mean that there are opportunities to bring together other royal colleges, including those representing paediatricians, midwives and others, so that their view could be contributed on an equal basis.
This all brings me to the question of advances in medicine and medical science, and rapid advances in surgery. I have referred to the rare but important cases of operations in utero for spina bifida, but there are other reasons why operations may need to be carried out on the human foetus while still in the womb. There are also, of course, cases where it is necessary to operate on a pregnant woman for her own sake, and in those circumstances consideration should also be given to what consequences might arise in relation to the sentience of the foetus that she is carrying in her womb.
All of this, at the moment, is being conducted against a background of inconsistency of professional opinion. If one says, as one could, that this should all be left, as a matter of clinical judgment, to the medical practitioner, I am all in favour of medical practitioners being able to exercise clinical judgment freely and professionally, but in fact it is very difficult to do that without some sort of agreed guidance. We do not, as a matter of practice, leave practitioners free of guidance—there is a great deal of guidance on a range of topics, which they follow when carrying out their necessary and valuable work—so I do not think it impinges on the freedom of the medical practitioner to exercise their professional judgment that there should be a better-informed agreement on the time at which foetal sentience arises than currently exists, given the inconsistencies that I have drawn attention to.
There are also inconsistencies with the way in which we treat sentient animals. The then Animal Welfare (Sentience) Bill 2022, which came through your Lordships’ House, established a precedent for this Bill by requiring the Government to set up and maintain a committee precisely to give them advice on policy in relation to animal sentience. That Act, noble Lords may recall, declares mammals and certain categories of shellfish to be sentient. I would be surprised if my noble friend the Minister wanted to say that a human foetus should be denied the same esteem as a lobster, but in fact that is the current position. We have legal protections for lobsters and decapod crustaceans—I remember the discussions during the passage of that Bill about those animals—as well as all mammals, but we have no view, let alone protection, for the human foetus.
There is also an inconsistency with the Animals (Scientific Procedures) Act 1986, which defines protected animals and protects their foetuses from a point two-thirds through the gestation period. We have legal protection for canine foetuses from seven weeks onwards, but we do not even have informal policy advice for the human foetus and its own sentience. This Bill would open a path to correcting that, by allowing scientists to come together and reach an agreed view and a developing view, in the light of new discoveries.
Finally, I come somewhat reluctantly to the question of abortion, which I have not mentioned until now because the Bill is not about abortion. The question of sentience is much broader than that and relates to foetuses where the mother is extremely keen, devoted and committed—as indeed are her professional carers—to the healthy birth of that child.
The Bill does nothing to change abortion law or the way in which any proposed future changes to abortion law are carried out. It has no implications, other than to provide a focus for scientific knowledge, on the course of legal developments relating to abortion. It does nothing to impinge on the legal rights of women to terminate a pregnancy. Anyone who argues that it does is implicitly arguing that those rights are defensible only if scientific knowledge is somehow suppressed and dispersed.
This is a modest Bill intended to provide scientific knowledge and inform public debate. It is also based on a clear precedent advanced by the Government; the Animal Welfare (Sentience) Act was a government Bill. It is hard to see on what grounds the Government or noble Lords would object to it. I beg to move.
There are differences of opinion and there may be different medical judgments in terms of analgesia and anaesthesia, precisely because the questions of the impact on the unborn child will be different. It may be necessary to use analgesia or anaesthesia, or it may not be appropriate, but we need to understand the situation. The proposed committee would be looking at scientific evidence. It would help clinicians to form views and be able better to advise parents and clinicians about the most appropriate way forward.
The suggestion that this is simply about rolling back rights to abortion is disingenuous. I know that from the Front Benches, there is considerable disagreement. I am used to being a lone voice from these Liberal Democrat Benches. Nevertheless, given that my party—and, I believe, other parties—spends a lot of time saying how important it is to have evidence-based policy-making, surely, setting up a committee to look at the evidence and give appropriate information to parents would actually be of benefit to all.
The noble Lord, Lord Moylan, referenced, by implication, Professor John Wyatt, who has three decades of experience treating extremely premature babies, including a large number born at 22 or 23 weeks, below the current abortion time limit. A few years ago, when addressing parliamentarians, in sobering evidence, Professor Wyatt told us that there was a link between what the foetus and premature babies experience. He said:
“I think from my observation of extremely premature babies that they are sentient, they are conscious, and they are responsive to their environment”.
Why should we care? First, this is a human rights issue. The preamble to the UN Convention on the Rights of the Child, to which the UK is a signatory, states that the child
“needs special safeguards and care, including appropriate legal protection, before”—
please note that word—
“as well as after birth”.
We have obligations that must be honoured, and how will we do that without expert research or guidance policy?
Secondly, as we have heard from the noble Lord, Lord Robathan, barbaric, discriminatory legislation permits abortion up to and even during birth in the cases of Down’s syndrome—it was World Down Syndrome Day yesterday—club foot and cleft lip and palate. As the noble Baroness told us, the NHS recommends the use of analgesics when performing foetal surgery on babies with spina bifida after 20 weeks, but pain relief is not mandatory for foeticide abortions.
Noble Lords should study the recommendations of the UN Committee on the Rights of Persons with Disabilities and attempts in the other place, in one instance, to increase the opportunities of abortion right up to birth in all cases, and, in another, to lower the abortion time limit from 24 to 22 weeks, in line with the increase in survival rates of babies born at 22 and 23 weeks. I also gently point out that, as long ago as 1988, I succeeded in the House of Commons in persuading 296 MPs—a majority of 45—to vote for my Bill to reduce the upper time limit to 18 weeks, the Swedish upper time limit. It would have saved the lives of some of the 10 million babies who have been aborted in Britain, but it was talked out by opponents. The case today is even more compelling; please note that the EU average upper time limit is around 12 weeks, with many Parliaments greatly influenced by the questions of sentience and pain.
In other areas of medicine, the precautionary principle is often applied: the idea that, where there is uncertainty, we should err on the side of caution. So, it seems to me that we ought to be prudent when it comes to foetal sentience.
I end with Professor Wyatt’s words:
“I think we should play safe, we should give the foetus the benefit of the doubt. We should assume that it is capable of experiencing pain and unpleasant sensations, and we should then treat the foetus appropriately, which would if necessary be with strong pain relief medication or with anaesthesia”.
This is both sensible and humane. A foetal sentience committee, which is all that the noble Lord, Lord Moylan, is asking us to support today, would enable us to increase our understanding in this area. I therefore commend the Bill to the House, and I gently say to my friend, the noble Baroness, Lady Kennedy of The Shaws, that Article 3 of the Universal Declaration of Human Rights states:
“Everyone has the right to life”.
Supporting that does not make me right wing, a bigot or a misogynist.