Foetal Sentience Committee Bill [HL]

Lord Moylan Excerpts

2nd reading
Friday 22nd March 2024 Lords Chamber

Moved by

[Lord Moylan]

That the Bill be now read a second time.

[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.

--- Later in debate ---

[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?

--- Later in 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.

Bill read a second time and committed to a Committee of the Whole House.