Foetal Sentience Committee Bill [HL]
Friday 22nd March 2024
(8 months ago)
Lords ChamberFoetal Sentience Committee Bill [HL] 2023-24 View all Foetal Sentience Committee Bill [HL] 2023-24 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Moylan (Con)
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.
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.
Baroness Kennedy of The Shaws (Lab)
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—
Lord Moylan (Con)
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?
Baroness Kennedy of The Shaws (Lab)
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.
Baroness Lawlor (Con)
May I ask the noble Baroness what precisely this has to do with a Bill proposing a committee of research and analysis?
Baroness Kennedy of The Shaws (Lab)
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.
Lord Robathan (Con)
My Lords, I congratulate my noble friend Lord Moylan on bringing forward the Bill—
Baroness Smith of Newnham (LD)
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.
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.
Lord Robathan (Con)
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.
Lord Alton of Liverpool (CB)
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.
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.
Baroness Lawlor (Con)
My Lords, I am grateful to my noble friend Lord Moylan for introducing this Bill for a foetal sentience committee to review understanding of foetal sentience and to inform policy. It is a pleasure—indeed, I am humbled—to follow the noble Lord, Lord Alton, with whose views I find myself so often in agreement. The last time was in a committee that discussed China. I find him the most persuasive of human rights defenders in this Chamber and have done since I arrived.
This is a modest Bill, with modest aims: to approach policy in this area in the same way as in others, through consultation and the careful weighing of specialist evidence. That, as you would expect, continues to change, with new research and new evidence. In this area especially, there are many disagreements about the weight given to different parts of the evidence, and specialists themselves often change their views, as indeed has been pointed out earlier in this debate.
In particular, there are now doubts about whether some of the physiological assumptions that have dominated the debate are justified. Emphasis has often been placed on the role of the thalamus, a group of cells centrally in the brain that helps to control how sensory and motor signals are passed from one part of the cerebral cortex to another, and of the cortex, the grey matter that has a role in memory, thinking, learning, reasoning, problem-solving, consciousness and functions related to the senses. The emphasis has been often focused on them in respect of the perception of pain, but some researchers regard this as too narrow. There is, therefore, very good reason for all this complex, controversial and developing material to be weighed by an independent committee that can help advise government and parliamentarians to make and shape policy and legislation.
The approach already exists in the case of animal welfare, as we have heard, where there is a committee on animal sentience—see the Animal Welfare (Sentience) Act 2022. I see it as a model for the Bill. Indeed, as we heard earlier, in the UK, the foetus of protected animals in the case of a mammal, bird or reptile is protected when half the gestation or incubation period of the relevant species has elapsed, as set out in Section 1 of the Animal (Scientific Procedures) Act 1986. This Act regulates the use of protected animals in any experiment or other scientific procedure which may cause pain, suffering, distress or lasting harm to the animal. It is important that, as a society, we do not knowingly and unnecessarily inflict pain. We have legislated to stop this happening in protected animals and prenatal animals. We should now extend this welfare to our own species, and a small but significant step in doing so is to gather and sift the relevant evidence.
I understand that one reason why some, including the noble Baroness on the Benches opposite, oppose this Bill is that they see it as a covert attack on the present abortion laws. If the committee is set up as proposed, they fear that it will, as the science develops, find more and more evidence that foetuses, as they like to regard them, are indeed prenatal babies, able to feel pain from an early stage, and that abortion is merely premature infanticide. Yet, however strong their views, they should not try to bury evidence that goes against them. They should be willing for the scientific picture to be fully understood and presented in all its nuances to policymakers, as this Bill proposes, and to make their arguments, just as those who oppose them should do in the light of this Bill.
Lord Jackson of Peterborough (Con)
My Lords, I commend my noble friend for tabling this Bill, which is on such an important issue. I had hoped that we would restrict our debate to empirical evidence on the merits of this modest Bill, rather than hear smears about right-wing dark money and conspiracies.
I will restrict my remarks to a few reflections on relevant studies on both sides of the debate and highlight the need for objectivity in this area, of a kind that could be provided by a suitably comprised committee.
Baroness Kennedy of The Shaws (Lab)
Why do noble Lords who are proposing and supporting this Bill assume that the Royal College of Obstetricians and Gynaecologists is not capable of researching in the way that the noble Lord describes? Why are they again attacking institutions that have expertise and do this constantly? It is like the attack on the Supreme Court. It is basically expressing contempt for the institutions that currently exist and doing precisely what they want, because they want to set up committees that I suggest would be weighted with people that they would choose.
Lord Jackson of Peterborough (Con)
I think that is a fatuous conspiracy theory again, but, if the noble Baroness satisfactorily answers my question about the involvement of Marie Stopes International and BPAS in the RCOG, I will gladly debate with her on the issues that she raises.
If I can continue—
Baroness Thornton (Lab)
I am not addressing the noble Lord. I am speaking to my colleagues on his Front Bench. I am very sorry, but shouting “you” and pointing is not the conduct that we expect in this House. It is in our guidance, so I ask the Government Whip to please remonstrate with his colleague not to behave like that.
Lord Jackson of Peterborough (Con)
I say to noble Lords that the noble Baroness, Lady Kennedy of The Shaws, had ample opportunity to make her points. She intervened on me and I put a very reasonable question back to her. Perhaps I can now continue.
Noble Lords may be aware of a fascinating peer-reviewed academic study published in 2010 of twins in the womb at 14 weeks of gestation. The study found that the twins’ self-directed hand movements were more calibrated than movements to the uterine wall, while movements towards the co-twin exhibited even greater care. The study determined that such deliberate actions could not be the result simply of spontaneous reflexes. The team behind the study concluded that these findings force us to predate the emergence of social behaviour. Another study published by a team of child psychologists and neuroscientists in 2006 found “surprisingly advanced motor planning” in foetuses at 22 weeks’ gestation, again pointing towards a sentience of the foetus during the second trimester of pregnancy.
These are precisely the kinds of studies that ought to be informing government policy, yet neither was cited in the RCOG reports on foetal sentience to which my noble friend alluded earlier. Some will no doubt argue that a committee is not required when we have the Royal College of Obstetricians and Gynaecologists to guide us, but, on the contrary, I would suggest that RCOG reports on foetal sentience highlight the need for objectivity in this area and there are a number of good reasons to be cautious about accepting the conclusions. The RCOG itself has now distanced itself from some of the conclusions in its 2010 report. For example, its updated 2022 report no longer asserts, as the earlier one did, that a foetus is in “continuous sleep-like unconsciousness or sedation”. The 2022 report also removed a section on responding to common questions that included answering the question, “Will the baby feel or suffer pain?” with “No, the foetus does not experience pain”. Seemingly, it is no longer sure.
Since the RCOG has rejected sections of its own report, it would seem wise not to assume that its 2022 update is wholly reliable either. In a letter published in the European Journal of Pain, Italian neonatologist and bioethicist Carlo Bellini, who has written extensively on foetal pain, has questioned the conclusions of the 2022 report, arguing that they were based on misrepresentations and incorrect extrapolations of research cited in their support. As a layman of course it is difficult for me to comment objectively on differing research, but what is clear is that government policy would be assisted by a committee that can provide objectivity in this debate and consider all relevant findings. In fact, this is something that ought to be supported by the RCOG.
Let me finish with a final reflection on why this matters beyond simply informing the abortion debate. A 2007 academic journal cited in Neurodevelopment Changes of Foetal Pain asserted:
“Exposure of the foetus and premature newborn to pain has been associated with long-term alterations in pain response thresholds as well as changes in behavioural responses relating to the painful stimuli”.
In other words, if a baby experiences pain before birth, it may impact its development and behaviour in later life. It is therefore imperative that we understand foetal sentience adequately so that any treatment of unborn babies is performed in a way that will not lead to long-term damage. I therefore strongly support my noble friend’s Bill.
Baroness Barker (LD)
My Lords, I wish to put on record that although my noble friend and I have very different views, as a matter of principle I defend her right to make her views known, and I hope she will understand why I respectfully disagree with her. I absolutely agree with the noble Baroness, Lady Kennedy of The Shaws: she is spot on. This Bill is part of a far wider anti-gender, anti-LGBT attack on human rights, a campaign which is international and largely but not exclusively put forward by national Conservatives and Christian nationalists.
The noble Lord, Lord Moylan, in his introduction said two things, both of which I think have subsequently been shown to be not true. This Bill is neither modest, nor not about abortion. It is far from that. It is unprecedented government interference in the ethics and practices of abortion care. It seeks to circumvent expert clinical guidelines, not because of another body of clinical evidence but because of an ideological disagreement with the conclusions of the work of the Royal College of Obstetricians and Gynaecologists. I should say to noble Lords opposite that the RCOG is duty-bound to provide evidence-based clinical guidelines, and to think that it would do so without talking to anaesthetists and other relevant professionals is to do that college a great disservice.
This Bill is focused solely on the foetus and says nothing about the rights of women. It is from the same stable that has brought similar legislation about in American states such as Arizona, Kansas and North Carolina, and it absolutely is a precursor to further legislation which will limit and outlaw abortion in full. Setting up a committee in this way, which has no remit to consider the rights of women or their experiences and healthcare, speaks volumes about the real motivation behind this legislation. I have to say to noble Lords opposite, and on the Cross Benches, who have repeatedly drawn parallels with the use of analgesia in animal scientific experimentation that they have ignored the fact that in this Bill we are talking about foetuses that are carried in the bodies of women—who are sentient beings capable of expressing not only their own healthcare needs but those of others.
This has been presented as being a method by which we can get to objective evidence. It is nothing of the sort. This is about setting up a committee to consider selective evidence—evidence that, I put it to the noble Lord, will inevitably lead towards a diminution of women’s rights. Far from being humane, the Bill has considerable scope for unintended consequences. The threats to women, not just during pregnancy but during childbirth, were this to go ahead, are considerable. We have already seen that throughout the United States, in states where these sorts of measures have been introduced.
I put it to you that this Bill does pretty well the opposite of what has been claimed for it. It is actually about picking and choosing selective evidence in order to lead down a path, as has happened in Alabama, towards the complete abolition of abortion. It is a Trojan horse. I really hope that we will not be fooled, and that we will put this in the context of that wider campaign against women’s rights and human rights.
Baroness Smith of Newnham (LD)
How does my noble friend account for the disparity between the views of the BMA and of the Royal College of Obstetricians and Gynaecologists?
Baroness Barker (LD)
It is not uncommon for health professionals to have different views and for their views to develop over time. However, I would much rather listen to either of those than to a hand-picked political committee making political decisions on what should really be a health matter.
This is a Trojan horse, and I really hope we will see through it. I thank the noble Lord, Lord Moylan, for unveiling, yet again, a little bit more of this wider campaign against women’s rights and human rights. He has done us a service.
Baroness Thornton (Lab)
My Lords, I refer noble Lords across the House to the Companion at 4.18, where it states clearly that we address each other as “noble Lord”. We do not use the word “you”, and there is a good reason for that, which is that that actually makes us a politer House. Standing up, even in impassioned debates on subjects about which people feel strongly, and saying “you” will lead to people pointing, which is not acceptable, and there is a reason for this. I have been in this House for 26 years, and there are some things that are wise, and this is one of those.
Lord Moylan (Con)
My Lords, I heartily endorse what the noble Baroness has just said about how we address each other. Does she think that stating quite clearly that those who disagree with you are either in receipt of “dark money” or are “innocent dupes” meets the standards of the House?
Baroness Thornton (Lab)
The noble Lord will note that my noble friend made all her remarks within the guidelines of the House on how we address each other. He may not enjoy what she had to say, and he may disagree with her—some of us do agree with her—however, she did it within the rules of the House.
First, I would like to congratulate—
Lord Alton of Liverpool (CB)
I am sorry to interrupt the noble Baroness. I do not think I have ever misused the procedures of the House and I do not intend to start now. I respect the noble Baroness and we have made common cause on my occasions. Does she think it is within the rules of the House to talk about other noble Lords as if they are dupes or as if they are in receipt of money from outside that has been undeclared?
Baroness Thornton (Lab)
If the noble Lord reads Hansard, I am not sure that that is actually what my noble friend said. However, she is perfectly capable of defending herself.
I want to start my remarks by congratulating the noble Lord, Lord Moylan, on introducing the Bill with such clarity. He called it “modest”, but I beg to differ: this is not a modest Bill. It is short, which definitely helps, but it is not modest. I also need to start by stating that Labour’s policy is that abortion is an essential part of healthcare. We support a woman’s right to choose and we believe that access to safe, legal abortion should be available throughout the UK.
We need to be clear about the true intentions of this proposal: it seeks to chip away at the Abortion Act and change how we govern abortion law. The noble Lord, Lord Moylan, may have said that this is not about abortion or the Abortion Act, but the fact that so many of his supporters have said exactly the opposite—that this is indeed about abortion—shows that that is what the Bill is actually about. We can be clear that that is the intention behind the Bill.
The topic of foetal sentience is under constant review by the Royal College of Obstetricians and Gynaecologists, and its last review found no evidence of a foetus experiencing pain before 24 weeks. It is best that we trust expert medical bodies and scientists, not a Government-appointed committee, to say what is the case and how we should proceed. We need to be clear that the Bill seeks to circumvent expert clinical guidance because it has an ideological disagreement with its conclusions. I was looking at the list of participants on the committee of the royal college, and I suggest that noble Lords do the same because it is a truly impressive medical and scientific body that takes its job very seriously. One noble Lord said they had changed their view between 2010 and 2022. In a way, that proves the point: the point of that committee is to do that review.
Has there ever been a time when a Bill has been brought to this House asking the Government to set up a committee to analyse the medical evidence for, for example, coronary heart disease or endometriosis? No, because we trust the relevant expert medical bodies to do that job for us. We believe the Bill represents a dangerous move to politicise the way that we make decisions about healthcare, and for that reason I will not be supporting it if it moves forward.
The review of foetal awareness of pain reception undertaken by the Royal College of Obstetricians and Gynaecologists found in 2010 that the cerebral cortex is necessary for pain perception, and that connections from the periphery to the cortex are not intact before 28 weeks. It was therefore concluded that a foetus cannot experience pain in any sense before that stage. In the light of that, I ask noble Lords to ask why we would vote to set up a committee on that issue, unless that evidence is not considered robust.
I note that, if the Bill were to pass, the remit of this government committee would not extend to the health and well-being of pregnant women, as the noble Baroness said. The comments about sentience in fish, animals and so on make one question where the supporters of the Bill place women’s health, well-being and reproductive rights on the scale of animals, fish and so on. One has to question where that is coming from.
No other area of healthcare is subjected to a dedicated government committee designed to limit access to its treatment. The Bill would leave a woman’s right to access to care at the whim of a committee focused solely on the foetus, with no remit to consider women’s experience, needs or rights. I will certainly not support the Bill as it progresses.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)
I thank my noble friend Lord Moylan for introducing this Private Member’s Bill. I am grateful for the contributions by all noble Lords to the debate, which has proven more than ever that there are some deeply held personal views. That is because the Bill itself raises issues of profound sensitivity on a topic on which, as we see, there is a wide range of views.
As the noble Lord said, the main purpose of the Bill is for the Secretary of State to
“establish and thereafter maintain a committee called the Foetal Sentience Committee”
to provide
“evidence-based, scientific expertise on the sentience of the human foetus in the light of developments in scientific and medical knowledge”.
The Government have expressed reservations over the Bill as we do not believe that legislation is needed. The aims of the Bill can be achieved through alternative routes, thereby rendering legislation unnecessary. The Government must uphold the duty of care not to legislate where other reasonable processes are available. Also, the House can decide, if it wishes, whether it wants to set up a such a committee to scrutinise the matter. I fear that, if the Government were to set up such a committee, we would immediately get into issues of who should be on it, its composition and whether it goes one way or the other. That would inevitably lead to the politicisation of it all, and I think we all agree that that would be a regrettable step.
Before I turn to the points raised in the debate, let me first remind noble Lords of the history of abortion legislation in Great Britain and the Government’s long-standing position on matters of abortion policy. Abortion in Great Britain is governed by the Abortion Act 1967, which clearly defines grounds under which an abortion may be carried out. With the exception of emergencies where it is necessary to perform an abortion to save the life of the woman, two doctors must certify that, in their opinion, which must be formed in good faith, a request for an abortion meets at least one ground set out in the Act, and they should be in agreement about which ground this is.
The current gestational limits of abortion in this country are based on the gestation at which a foetus is considered viable, not on foetal awareness. Foetal viability is the ability of a foetus to survive outside the womb. The link between viability and the gestational limit for abortion was made in the 1990 amendments to the Abortion Act, when the gestational time limit for most abortions was changed from 28 to 24 weeks following a change in widespread medical consensus.
An important feature of abortion legislation is that Parliament decides the circumstances under which abortion can be legally undertaken, not the Government. The Government take a neutral stance on changing existing law relating to abortion. Any change to the law in this area is rightly a matter of conscience for individual parliamentarians, rather than for the Government.
Over the last 50 years, the Abortion Act has contributed to a significant reduction in maternal mortality and enabled lawful access to abortion, which is an important area of women’s healthcare. The department remains committed to ensuring that women have access to safe, legal abortions on the NHS, including taking abortion pills at home where eligible, in accordance with the Act.
According to our most recent data, most abortions take place in the early stages of pregnancy, with 93% up to and including 12 weeks’ gestation. Abortions at 20 weeks and beyond are very infrequent. The percentage performed at 20 weeks and over was 1% in 2020 and 2021, and 41% of these were under ground E of the Abortion Act, which states that, if the child were born, there would be
“a substantial risk … it would suffer from such physical or mental abnormalities as to be seriously handicapped”.
The decision to proceed with an abortion due to foetal abnormality is very difficult for parents. In 1990, when the grounds for abortion were last amended, Parliament decided that doctors are best placed to make these decisions with the women and their families.
A few noble Lords raised issues using the example of the Animal Welfare (Sentience) Act, which legislates for the creation of animal sentience committees. This legislation reflects that the Department for Environment, Food and Rural Affairs sought independent advice specifically on animal welfare, as it is a topic on which it sets policy. The Government do not set policy on foetal awareness. When we consider matters as sensitive as that of foetal awareness, it is right that clinical policy is reached through medical consensus among the professional bodies that set clinical guidelines.
We must recognise that the prevention and relief of unnecessary pain is a primary concern in clinical practice. There is no doubt that there have been medical advances over recent decades in in utero surgery and in the study of pain perception. Clinicians who are experts in this field have undertaken a balanced study of the evidence. It was on this basis that, recently, the Royal College of Obstetricians and Gynaecologists undertook a comprehensive review and published its foetal awareness evidence review in December 2022.
This review concluded that evidence to date indicated that the possibility of pain perception before 28 weeks of gestation was unlikely. As an independent organisation responsible for producing clinical guidelines and setting standards for high-quality women’s healthcare, the RCOG’s clinical expertise on this matter is recognised by the Government. In response to questions raised, my understanding is that analgesia is used more to immobilise the foetus for its safety when operations are taking place.
In conclusion, the Government have expressed reservations about this Private Member’s Bill, as a number of non-legislative routes exist through which a committee could be created to consider this matter. I recognise the sensitivity of this topic, as well as the diverse and deeply held views across the House. I thank all those for taking the time to attend and participate in this important and sensitive debate.
Lord Moylan (Con)
My Lords, I am grateful to those who have spoken in the debate. I am not proposing to answer them individually, but I shall make some comments, if I may, about the extraordinary speech made by the noble Baroness, Lady Kennedy of The Shaws. The first thing is that nobody, certainly not I, made any deprecatory remarks about the Royal College of Obstetricians and Gynaecologists. The idea that we were, or I was, holding it in institutional contempt is simply not borne out by anything that was said. All that was said was that other professional bodies of equal reputation have reached different views, and that a forum for bringing them together so that something could be worked out that might have a more robust character was something that could be recommended. It was complete fantasy and totally unfair to claim that we had said, or I had said, anything deprecatory about the Royal College of Obstetricians and Gynaecologists.
The second thing that I feel I have to say is that, given an opportunity, as the noble Baroness was, to state that she did not think that I was in receipt of dark money, or any money, in relation to this, her only answer was to accuse me of being some dupe. Without making any judgment, I will say that I have never heard anything like that said in your Lordships’ House, in the admittedly short time I have been here.
I shall only repeat, in a way, what I said earlier, in response to the noble Baroness, that the right to an abortion—any right that depends on blanking out developing scientific knowledge—cannot be regarded as a very robust right.
The noble Baroness, Lady Barker, suggested that somehow the evidence before this committee was going to be selected. I have really no idea where this idea comes from or who it is she thinks is going to do the selection. But that brings me to another point—one, I am sure, of genuine misunderstanding—the fault for which I have to attribute to myself.
There was a suggestion by some noble Lords, in particular the noble Baroness, Lady Thornton, that the committee would be full of politicians or politically appointed persons. That was never my intention. I thought that I had made it clear, and perhaps it should have been made clear in the Bill—that is something that could happily be addressed by an amendment—that the membership of the committee was to be made up of experts with scientific knowledge. That is how it would generate scientific knowledge and examine the research. Of course, leading among those experts, I would expect appropriately chosen representatives of the relevant royal colleges and other professional bodies, not politicians at all. I do not think that the Animal Sentience Committee, to take an example that provides a parallel, is stuffed with politicians or political appointees. I think that it has members who know something about animals and how they respond to pain. But that point may be a genuine misunderstanding, and one that I would be happy to address, as I say, in Committee.
As for the Minister’s response, I am grateful for his tone but very sorry to hear his content and the fact that he feels that he cannot agree. In effect, as another noble Lord pointed out—I think that it was the noble Baroness, Lady Smith of Newnham—he is rejecting an opportunity to make policy-making more robust and evidence-based. There were some very clever but totally unpersuasive words about the Animal Sentience Committee. The Minister said, in effect, that the Government’s view was that crustaceans deserve higher esteem and regard than the human foetus. Neither position, in my view, is sustainable. With that, I beg to move.