Foetal Sentience Committee Bill [HL]

Lord Markham Excerpts

2nd reading
Friday 22nd March 2024 Lords Chamber

[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.