The move, by Lady Masham of Ilton, a crossbencher, was voted against last night (Monday) during the human fertilisation and embryology bill's report stage.
During the introduction to the debate on her amendment, Lady Masham said: "This is discrimination of the worst sort.
"How can it be, in this modern world of advanced technology, that babies are allowed to go full term and then be given a lethal injection and killed just because they are still inside the womb and may have a handicap? The amendment would stop this unfair discrimination. It has become known as 'the equality amendment'."
The spoke of an example of how babies can be treated whilst they are still in the womb.
She said there was a "remarkable operation in the USA to correct a baby of 21 weeks with spina bifida while still in the mother’s womb, which shows how wonderful a surgeon’s skill can be".
"Many people, including a law don from Cambridge, have written to me to say how deeply insulting and offensive Section 5 [of the Abortion Act] is to every single member of the human race who has been born with some physical or mental disability that other people would regard as serious—whatever that may mean—since it proclaims that such people are not worth caring for, should not be treasured and should not be protected from those who wish to kill them off, provided only that the killing is done before they are born alive. I know some splendid people who were born with spina bifida and cleft pallets. Had this legislation been in force at the time they were in their mother’s womb, they might not be here today. What about such brilliant artists as Beethoven and Toulouse Lautrec? They would not be here. We would not appreciate their wonderful art and music."
Predictably, Lord Steel, the architect of the Abortion Act although not of this particular part of it (which was brought forward in 1990 as part of the Human Fertilisation and Embryology Act), opposed the amendment saying it would be "denying people a free choice" on what to do in difficult circumstances.
Lord Steel said: "I believe that the noble Baroness is profoundly wrong when she suggests, as she did in Committee, that in some way the existence of this legislation is an offence to the dignity of disabled people."
Lord Alton challenged the minister to define "serious" as the particular amendment which allows abortion up to birth says:
“there is a substantial risk that if the child were born it would suffer from
such physical or mental abnormalities as to be seriously handicapped”
A very interesting but sinister interpretation of the recently implemented Mental Capacity Act was made in relation to the disability and abortion debate by Baroness Meacher:
"The Mental Capacity Act refers to the child having capacity; if they do not have capacity, it is important for the professionals to consider their best interests. If we could hold to that, we would be doing pretty well. I happen to know two tiny children who were born at 25 weeks with very severe cerebral palsy. They were natural births. Those two children cannot breathe naturally; they have to be helped to breathe. They will never talk. They lie on their backs and can do nothing. My belief is that there are children, born at those very early ages, who are not viable people. It would be in their best interests to have been aborted. There rests my case. We need to consider the best interests of these babies."
There we have it. Someone deciding on the floor of the House of Lords whether someone's life is worthy or not. Is she suggesting an even more sinister interpretation of the Mental Capacity Act? Is she saying that it should basically allow the medical profession to determine what is in the best interests of the unborn child because it "lacks capacity"? As John Smeaton points out, the Mental Capacity Act does not apply to children
Baroness Tonge, a leading supporter of the Voluntary Euthanasia Society, also had gut-wrenching comments to make. She said: “I said in Committee that we were not talking here about disabled human beings, but about some grossly abnormal human beings; many of those whom I have seen bear little resemblance to human beings.
“In Committee I mentioned the child with anencephaly that I delivered. It had no brain and a grotesque appearance...”
Here we have someone putting her human existence in a superior league to a disabled unborn child.
The Minister, Lord Darzi of Denham, confirmed that "serious handicapped" had not been defined in the Human Fertilisation and Embryology Act of 1990 and that it is left up to the doctor to determine.
He said: "The doctors must form their own opinion of the seriousness of the handicap the child would suffer if born, taking into account the facts and circumstances of the case. The existing guidance from the Royal College of Obstetricians and Gynaecologists furthermore urges obstetricians to err on the side of caution when considering whether an abortion could be performed on the grounds of foetal abnormality."
On the legal status of the foetus, the minister said: "Both domestic and European law on discrimination—that includes the European Convention on Human Rights—apply only to living persons. The foetus is not regarded as a living person in domestic law and has no rights independent of its mother until it is born alive. The courts have consistently held that a foetus is not recognised as being a separate person from its mother.
"As regards the legal rights of a child, it is regarded in domestic and European law as being independent only when it is born; that is, after the birth of the child."
In summing up, Baroness Masham tried to withdraw her amendment but was shouted down by a number of members. A vote went ahead and the amendment was defeated by 89 votes to 22.
Amongst other discussions, the Lords opposed the setting up of a national bioethics commission. I hope to look through more of Hansard and give an analysis on the other topics addressed which included the bill's desire to remove the need for a father.
The last chance for peers to vote against the Human Fertilisation and Embryology bill is currently scheduled for next Monday (4 February) - the third reading.
Amongst other issues, the Lords will be debating the use of human embryos in experiments.
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