By John Pring Disability News Service 3rd August 2017

A disabled peer has warned that Britain could be heading towards becoming a “eugenic” society if parliament does not agree to update abortion laws to make it illegal to discriminate against foetuses with impairments.

Lord [Kevin] Shinkwin believes that equalising the time limit for abortions for both disabled and non-disabled foetuses would send a powerful message that society, and the government, believe in equality for all disabled people, both before and after birth.

The Conservative peer is calling on disabled activists and disabled people’s organisations to unite around the issue.

He has also told Disability News Service (DNS) that he believes that ensuring disability equality in abortion law could lead to disabled people being awarded a higher priority in government spending decisions, for example on social care.

At present, it is legal under the 1967 Abortion Act to abort a foetus right up to the point of birth if [in the act’s words] “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”.

This, says Lord Shinkwin, is despite the fact that the Royal College of Obstetricians and Gynaecologists’ own guidance has said that an assessment of both risk and severity is subjective, which he says “is borne out by the abortion of 11 babies in 2015 for surgically rectifiable conditions such as cleft palate and hair lip”.

But he adds: “Why should we be surprised that we’re still having to fight for equality and against discriminatory attitudes after birth if we’ve as good as hoisted the white flag and said it’s fine to kill us up to birth for being disabled as long as it happens before our screams can be heard?

“This legal perpetuation of prejudice informs so much cultural hostility to disability; until we confront that fact, we’re not going to make real headway in ending it.”

He says there is “no way” that members of other “protected characteristics” covered by the Equality Act, such as black and minority ethnic (BAME) communities or LGBT people, would accept the “cut-off point on equality” that applies to disabled people before birth.

He says: “If there was a hypothetical gay gene, quite rightly they would not accept that they should enjoy protection after birth on account of what the Equality Act 2010 describes as a ‘protected characteristic’, only for the same characteristic to be used as a reason for their termination before birth. That would be ridiculous.

“Sadly, the laws do not just state in black and white that we are worth less than non-disabled people, they actually say we are entirely worthless.

“So, one law allows non-disabled people to discriminate against us right up to the point of birth for the very same characteristic – disability – which another law states is the reason why we need protection from discrimination after birth.”

He adds: “Why should we be expected to accept what George Orwell would have recognised as disability doublespeak, just because some non-disabled people, including some who mouth equality, are in denial about such a fundamental inequality and are instead more concerned about protecting a hierarchical status quo which is incompatible with true equality?”

The disabled peer is currently engaged in a stand-off with the Equality and Human Rights Commission (EHRC) (see separate story), after he responded to an advert specifically for the post of disability commissioner but was then told after being appointed – and just 36 hours before his first board meeting – that the watchdog had decided to abolish the role and that he would simply be a commissioner and would not lead on disability issues.

He is boycotting EHRC board meetings until what he believes is a vital post is reinstated and he is allowed to chair the commission’s new disability advisory committee.

He is still waiting for EHRC to say whether it supports his bill.

“I am waiting with baited breath,” he says. “I leave it to them to make clear that they believe in genuine equality.

“They are aware of my bill and I am waiting to hear whether they support genuine equality.”

Following his comments, an EHRC spokeswoman told DNS: “The issue of abortion and the abortion of disabled foetuses is complex and we are aware of Lord Shinkwin’s views.

“We are in the process of weighing up all the relevant equality issues and human rights at stake in relation to Lord Shinkwin’s private member’s bill.”

Meanwhile, the peer says he fears that Britain’s views and practices on disability and abortion could soon become similar to Iceland’s.

It has been widely reported that there have been no babies born with Down’s syndrome in Iceland for more than five years, as 100 per cent of women who have a positive diagnosis after a screening test now terminate their pregnancy, while Denmark’s government has apparently said it plans to be “Down’s syndrome free” in the next 10 years.

Lord Shinkwin said: “In Iceland, they actually think that is a wonderful thing.

“When people ask me why this is such an issue, I say look at the future, the future is in Iceland.”

The testing technology is improving so quickly that “if we don’t say anything now it is going to be too late”, he says.

“We cannot afford to ignore this inequality because it is only going to become even easier to use our so-called protected characteristic against us, to ‘search and destroy’ for disability before birth.”

He also points to lessons from history, particularly the Nazis’ Aktion T4 programme, which resulted in the murder of as many as 275,000 disabled people at the hands of German doctors.

“The conditions for T4 were created in a very short period of time,” he says.

“I am not saying Iceland is a Nazi regime, or Denmark, of course, but I do say we should not forget the lessons of history.

“What could appear unacceptable suddenly becomes acceptable very easily and quickly. The lessons of history contain really, really powerful warnings.”

He says he fears that Britain could be heading towards becoming a eugenic* society if it does not act to end disability discrimination before birth, which is why he believes his bill is urgently needed.

“We are not joining the dots,” he says, “we are not asking ourselves what the implications of this sort of policy being seen as totally acceptable are to how disabled people are treated after birth.

“If we accept as disabled people that it is OK to use our so-called protected characteristic to identify us and single us out for the removal of all protection before birth, then we should not be surprised if we find that non-disabled people [he stresses that he is referring to ‘governments of all colours’, and not just the current Conservative government] are attaching a higher priority to investing in other areas.”

He believes that a change in the law “would help recalibrate the priorities, and that would have a long-term beneficial effect on social care, for example”.

He also believes that his party has a duty to act because it was a Conservative government amendment to the 1990 Human Fertilisation and Embryology Act, he says, which made it “even easier for this disability discrimination to happen by allowing abortion on grounds of disability right up to birth”.

Lord Shinkwin’s new private member’s bill would make it illegal to abort a disabled foetus after 24 weeks of a pregnancy, just as it is with non-disabled foetuses.

His abortion (disability equality) bill – which is awaiting its second reading – is an amended version of a bill he introduced in the last parliament, which gained support from Disability Rights UK.

Support for some of the principles behind his bill can also be found in the shadow report to the UN’s committee on the rights of persons with disabilities, submitted earlier this year by the Reclaiming Our Futures Alliance (ROFA).

He hopes that ROFA and other user-led grassroots groups and DPOs “will make it clear that disabled people need to unite around this issue. We need to support each other.”

His first bill would have outlawed the use of disability as a justification or criterion for allowing abortion altogether, but due to the opposition he encountered in the Lords, he has amended the proposed legislation and produced the new version.

The new bill would still allow the impairment of a foetus to be used as a justification for an abortion, but would change the law to allow this only to happen in the first 24 weeks of a pregnancy.

His new bill would also ensure that parents are given “balanced, full and accurate” information about a diagnosis, including from groups led and controlled by disabled people.

Although his is 49^th in the list of private member’s bills waiting for debating time in the Lords, he is optimistic that it will eventually be debated and receive its second reading, particularly as the current parliamentary session will last two years, instead of the usual one.

Lord Shinkwin insists that his bill is driven entirely by his experiences as a disabled person and not by faith-related issues (he says, “I have found my belief in Jesus Christ a tremendous source of support in coping with the challenges of living with my disability”).

And he says he is careful not to give an opinion on abortion in general.

“I do not take a position on abortion because I am very grateful for the support I am receiving in the House from people on both sides of this debate [both pro-choice and pro-life].”

He adds: “What is driving me on this? It is my belief in our intrinsic equality and our common humanity.

“The current law means that someone like me can be good enough for the House of Lords after birth, but only good enough for the incinerator before birth because of my disability.

“What’s that all about? It’s certainly not about equality.”

*The idea that society can be improved by selecting those who are allowed to survive and breed (definitions of eugenics vary)