When this debate opened last night I omitted by an oversight to welcome the Minister for Justice to the debate, and indeed I look forward very keenly to his contribution to this debate on family planning later today. I should like now to welcome the Minister for Education to the House for this debate. I think it is perhaps particularly appropriate that the Minister for Education would also be present during the discussion on family planning because, as I said last night. we are not just talking about the exercise of a right to family planning. We are also talking about access to means of information and education on this whole subject of family planning. So he is a very appropriate Minister to be present at this part of the debate.
Last night I described the task before the Seanad as a two-fold one: first of all, to regularise the position following the Supreme Court judgment in the McGee case which has given rise to an unsatisfactory state of the law. I described in detail the extent to which it is unsatisfactory in not providing sufficient controls in the public interest and in not providing that people can inform themselves properly about the dangers to which they are at risk in importing contraceptives from outside this country without proper supervision and guidance.
I said that the second task of the Seanad is to promote the basic human right to family planning which has been recognised on the international sphere and which was also recognised for us by the judges of the Supreme Court, by allowing access to choice of means on the subject and by allowing full information and guidance on it.
Today I want to deal with this question of the appropriate controls which we as Members of the Oireachtas ought to consider in recognising the right to family planning and recognising the right of access to information on it. Family planning itself is clearly in the realm of private morality but the law regulating its exercise is an issue of public morality. It is a matter for the concern of the Seanad to ensure that there are adequate safeguards and controls to prevent the abuse and exploitation of the situation. This is important in the public interest and it is rightly our concern in considering any measure relating to family planning. It involves an understanding of the nature of law and of the limits of law.
The criminal law cannot be used to enforce standards of private morality. It can only create a framework of control within which individuals, and particularly young people, can be protected from abuse and explotation. For example, it is important for us to remember that the criminal law does not regulate extra-marital sex at present. It is not a crime to commit adultry. The criminal law does not regulate extra-marital sex for the very good reason that it knows its own limits. Similarly, we must be concerned to draft a law which will be enforceable, which will have the respect of the citizens of this country and which will not try in its terms to exceed its own possibilities. We must not provide for controls and safeguards which we know, as we pass this law—and the citizens of the country will know—have no meaning because they cannot be enforced, and consequently do not demand or require our respect.
In other words, there are limits to the controls which can be introduced by law in regulating this subject of family planning. These controls must always be considered in the context of promoting a basic right and of allowing full access to information so that individual citizens can exercise that right. It is our function in examining proposed legislation to consider which controls are appropriate in the sense that they are both justifiable and enforceable. It would be wrong for Senators and Deputies to be influenced by a climate of opinion, by a fear of a grassroot reaction and by worries about this subject which has been very widely debated. Also it would be wrong for them to be influenced to introduce controls which they know would be unenforceable and unjustifiable and which would bring the law into disrepute and into contempt by the public that they were purporting to protect.
As proposers of this Bill we considered very carefully the question of the proper controls and safeguards which should be introduced. We decided that the realistic and proper safeguards would be to provide for control of venue and for control of advertising. This would prevent the appearance of slot machines distributing contraceptives, which would be considered to be an abuse. It would also prevent the exploitation of young people and the offence to the public in general caused by extensive advertising of contraceptives. In our view it is proper and appropriate for the law to control both the venues at which contraceptives would be available and the way and the extent to which they could be advertised to the public and particularly to younger members of the public.
Turning, then, to the provisions of this Bill, in the knowledge that the controls in it must be justified as being enforceable and as being appropriate in protecting the right to means of family planning and the right to access to choice of means and information on the subject: the first major change proposed in this Bill is to take the subject out of the realm of the criminal law—leaving only a residual safeguard of control there—and into the realm of health under the jurisdiction of the Minister for Health. We do not take the subject entirely out of the sphere of the criminal law —we leave the penalties contained in the 1935 Act for those who go outside the framework which we have provided and therefore are engaged in the illegal sale, advertising, et cetera, of contraceptives. That is the proper function and limit of the role of the criminal law in this sphere.
We move the remaining jurisdiction into the area of health. We are allowing the Minister for Health to have the primary role and function in deciding, for proper health reasons, the venues at which contraceptives should be available; the contraceptives which should be available on prescription only; and the extent to which contraceptives can be advertised in the country.
Section 1 of the Bill is the Short Title—"This Act may be cited as the Family Planning Act, 1973." Section 2 gives the Minister for Health the power to make regulations which will determine to a large extent the scope of operation of the Bill.
Section 2 provides:
(1) The Minister for Health may make regulations in relation to anything referred to in this Act as prescribed.
(2) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
This, as Members of the Seanad will recognise, is a standard form of control through bringing orders made by the Minister back before the Houses of the Oireachtas. It is a stronger form of control than is the more common one in that it requires an affirmative resolution by the Houses of the Oireachtas, positively approving the regulations made by the Minister for Health. It would ensure that we would have at all times the possibility of viewing the operation of this Bill in practice; of viewing the way in which regulations were issued under it and a possibility of having a debate on the subject, and if necessary refusing to approve the regulations made by the Minister for Health.
Section 3 amends but does not repeal section 17 of the Criminal Law Amendment Act, 1937, and therefore leaves this residual fallback position for the criminal law that—other than as authorised by this Bill—if a person sells or advertises contraceptives in an illegal fashion he will still be subject to the penalties of the criminal law as provided in the 1935 Act.
This section provides:
Section 17 of the Criminal Law Amendment Act, 1935, is hereby amended by the deletion of subsection (3) and the substitution of the following subsection for subsection (1):
"(1) Nothing in subsection (1A) of this section shall be construed as prohibiting the supply or sale of contraceptives to or for resupply or resale to persons entitled to supply or sell them in pursuance of subsection (1A) of this section or the keeping or offering of contraceptives for sale for such purposes only.
(1A) Subject to subsection (1) of this section it shall not be lawful—
(a) to supply or to sell or to offer or keep for sale any contraceptives except in an open shop kept for the dispensing and compounding of medical prescriptions to which section 2 of the Pharmacy Act, 1962 applies or in prescribed premises or in premises of a prescribed class,
(b) to supply or to sell or to offer for sale any prescribed contraceptive except in accordance with a written prescription signed by a registered medical practitioner, and
(c) to expose or to advertise any contraceptive for sale except in compliance with prescribed conditions."
The effect of this section is that it would be lawful to supply or to sell contraceptives in chemists' shops, but the Minister would prescribe by regulation those contraceptives which would be available on prescription only. The Minister for Health is the appropriate person as he has access to the proper medical information as to which contraceptives should be available on prescription only, and what safeguards are necessary to protect the health of the citizens of this country and to ensure that they do not —as they can at the moment—import contraceptives without any guaranteed medical supervision and without any adequate information. It would not be lawful then to sell or supply the contraceptives which are described as being available on prescription only except on medical prescription. The control of advertising and exposure of advertising about contraceptives would be regulated by the Minister for Health. If anybody went outside this framework they would be contravening the law.
As well as that, the section provides that these contraceptives would be available in chemists' shops and enables the Minister for Health to expand the venue. The Minister for Health is the appropriate person to have a comprehensive understanding of the needs of the community and to have a knowledge of the various other venues which would be appropriate, such as hospitals, clinics, venues of that sort. Once again we think it is proper that the structure be a flexible one. These venues might be increased if the public need is seen and if there is hardship in confining the availability of contraceptives to certain venues or confining them to the venues provided for in the Bill, namely, to chemists' shops.
Section 4 (1) provides:
(1) Section 16 (1) of the Censorship of Publications Act, 1929, is hereby amended by the deletion of the words, "the unnatural prevention of conception or".
(2) Section 17 (1) of the Censorship of Publications Act, 1929, is hereby amended by the deletion of the words "or preventing conception".
I will take section 5 with this section because I think they can be examined together. Section 5 (1) provides:
(1) Section 7 of the Censorship of Publications Act, 1946, is hereby amended by the deletion of the words, "the unnatural prevention of conception or" and "prevention or".
(2) Section 9 (1) of the Censorship of Publications Act, 1946, is hereby amended by the deletion of the words, "the unnatural prevention of conception or" and "prevention or".
I think that it is important to emphasise again that the advantage of legislating about a matter rather than bringing a court action which declares a particular section of the law unconstitutional is that we can provide a comprehensive and coherent framework relating to family planning. An essential part of that framework is that we amend the laws which prevent responsible books and periodicals about family planning from being available to the citizens of this country. It would be a very real injustice on the part of Members of the Oireachtas if we legalised the availability of contraceptives and neglected to legalise access to information so that people could not uniform themselves responsibly and be guided on the use of contraceptives in family planning.
The provisions which we propose to amend in these sections relate, first of all, to the prohibition of advertisements advocating contraceptives. Reference is made in these provisions to the words "unnatural prevention of conception". In repealing this phrase relating to the unnatural prevention of conception we are aware that the very wording itself is unjustifiable because it implies that this method is unnatural so that the censorship law would be prescribing what is "natural" and "unnatural". In this area, too, we would be discriminating in a denominational sense by adopting one particular viewpoint on what is natural and what is unnatural in relation to family planning. For this reason also—and it is an important reason—we ought to repeal these provisions of the Censorship Acts. It is not, I would admit, open to us in Irish society to dictate in our laws which methods are natural and which are unnatural as methods of prevention of conception, and in doing so imply that we adopt the viewpoint of one denominational church. The inference would be that we do not respect the viewpoints of the other churches on this, or that we do not respect the viewpoint of individuals who claim that the various methods of family planning and the various types of contraceptives they might use are as natural as any other operation, drug or appliance.
We do not describe some operations, drugs or appliances as being "natural" and some as being "unnatural"; and we cannot in our criminal law distinguish between a thermometer and other forms calling one form natural and another form unnatural. We cannot do so, if we want to foster respect for the institutions of the State; if we want to safeguard the civil rights of individuals, and if we want to respect their freedom of conscience and their freedom of moral outlook on this subject.
Section 17 of the Censorship of Publications Act, 1929, relates to the amendment of the Indecent Advertisements Act, 1889. It provides that:
The reference contained in section 3 of the Indecent Advertisements Act, 1889, to printed matter which is of an indecent or obscene character shall be deemed to include advertisements which relate or refer, or may be reasonably supposed to relate or refer, to any disease affecting the generative organs of either sex, or to any complaint or infirmity arising from or relating to sexual intercourse, or to the prevention or removal of irregularities in menstruation, or to drugs, medicines, appliances, treatment or methods for procuring abortion or miscarriage or preventing conception.
Anybody listening will find that to be an extremely broad exclusion of any advertisement relating to any of these matters. Curiously enough, here we do not have any reference to the word "unnatural". Thus it includes a prohibition of advertisements of all methods—including the Billings method, including so-called "natural" methods of family planning. Since 1929, when the mentality was one not of approval of family planning but of a quite different outlook on the subject, the attitude of the whole population has evolved, and the situation has changed dramatically.
As I said at the start of my contribution last night, all churches now approve of family planning. Yet we have here a total prohibtion of any advertisement of any methods— natural and so-called unnatural— relating to family planning. What we propose to do in the provisions of the Bill before the House is to remove this blanket prohibition, which I do not think anybody, looking at it intelligently, could stand over. Instead, we propose to allow the Minister for Health in the public interest and with concern for public morality, to regulate advertisements on the subject. We would maintain that that is the proper balance. The Minister for Health is in a position to know what the need is for certain advertisements so that people can have knowledge of and access to various types of contraceptives. He will know how to prevent public abuse and exploitation and the sort of distress that could be caused by over-advertising of these devices in the organs of the public media.
Turning to the Censorship of Publications Act, 1946, section 7 provides:
If the Censorship Board, having duly examined a book, are of opinion
(a) that it is indecent or obscene, or
(b) that it advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or procurement,
and that for any of the said reasons the sale and distribution in the State should be prohibited, they shall by order prohibit such sale and distribution...
This effectively prevents the sale and distribution of books which are said to advocate the unnatural prevention of conception. As I said, this section merits repeal for its very wording— for the use of the word "unnatural", which is not open to us, as parliamentarions, to use and to distinguish between "natural" and "unnatural" in this way, because that distinction is based on a denominational and discriminatory view of methods of family planning. As the law stands under this provision, contraceptives are available in Ireland for use, can be distributed, can be manufactured and can be imported, but they cannot be read about in a responsible way. A person who wishes to inform himself or herself about contraceptives cannot get in the ordinary bookshops responsible literature about family planning. I do not think any Member of Parliament can be happy about that situation. That is one of the real dangers of the present situation: that people in their ignorance will do themselves harm or suffer an injustice as citizens because they cannot inform themselves properly.
We ought to be aware of the irony that a lot of the discussion about this subject of family planning has been confused and distorted and uncharitable, because people have not been able to inform themselves under the present state of the law about the subject. How can people address themselves with proper concern, compassion and understanding on this subject, if they cannot under our laws inform themselves about it? Here, I make a direct appeal to the Minister for Education for an understanding of the importance of education on this subject. We must allow people to inform themselves: in other words, we must as a priority repeal these proviisions of our censorship laws.
Section 9 is very similar to the section to which I have just read: it relates to periodicals and provides:
The Censorship Board shall examine the issues recently heretofore published of every periodical publication in respect of which a complaint is made to them in the prescribed manner by any person, and if they are of opinion that the said issues
(a) have usually or frequently been indecent or obscene, or
(b) have advocated the unnatural prevention of conception or procurement of abortion or miscarriage or the use of any method, treatment or appliance, for the purpose of such prevention or procurement, or
(c) have devoted an unduly large proportion of space to the publication of matter relating to crime,
and that for any of the said reasons the sale and distribution in the State of the said issues and future issues of that periodical publication should be prohibited, they shall by order prohibit the sale and distribution thereof accordingly....
This would prevent the availability of periodicals which had in past issues advocated the use of artificial means of contraception, called again in the section "the unnatural prevention of conception". This is wide enough to prevent medical periodicals from appearing which advocate contraceptives. We know that they do appear; we know that this is an example of the law being in contempt, of the law not being enforced for very good reason. It would be wrong in present circumstances to enforce this provision of the law; and we cannot be happy to see a section of the law on our Statute Books which we do not want to be enforced for medical reasons, for the protection of the citizens of the State.
So much, then, for an examination of the structure of the Bill; for our concern to have the appropriate and enforceable safeguards in the Bill which would repeal the existing law and change the emphasis from criminal law to health by giving the Minister for Health power to make regulations under the Bill.
We have made it clear that we are open to consider amendments to this Bill. We do not regard it as a blueprint or as the perfect solution. We are concerned that the Seanad give it a fair appraisal and that Senators examine the degree to which we have protected the public interest by writing in controls. If they feel that other controls or, perhaps, in some areas, less controls, might be appropriate, then we would be prepared to consider that type of amendment on Committee Stage.
I should like to give an example of the type of amendment which I could see coming from the floor of the Seanad. In section 3 of the Bill we had repealed the subsection of section 17 which the Supreme Court have now declared unconstitutional. This refers to the ban on the importation of contraceptives. In the light of the sort of framework which we have provided in this Bill—legalising sale in Ireland of contraceptives at certain venues and in certain circumstances if on prescription—there might be a case for considering again whether there should be a total removal of the ban on importation, in other words, whether there should be safeguards put back on importation so that people, if they want contraceptives, will acquire them in Ireland, under the controlled situation provided in Ireland and with the medical supervision in the case of contraceptives which require to be by prescription only.
One might very well say that in those circumstances one might re-establish a certain control in relation to importation. Of course, this would be perfectly constitutional, because the whole reason behind the Supreme Court's decision was that the unavailability of these types of contraceptives within our country resulted in the unconstitutional nature of the prohibition, because it prevented Mrs. McGee from exercising her right to family planning.
The Supreme Court cannot legislate in a coherent fashion. It can only do the best under the circumstances, and the best under Mrs. McGee's circumstances was to strike down the prohibition on importation so that she could at least get from abroad—albeit without any controls or proper safeguards—what she could not get within the State. If she can get them within the State, with proper controls and safeguards, I submit it is possible that this unlimited right to import could be looked at again. This might be something which could be considered on Committee Stage.
We have, in relation to the censorship provisions, only removed the reference to the wording "unnatural prevention of conception" and we have left the rest of the sections. The remaining prohibition includes books or periodicals advocating abortion. There is a very difficult argument here. I would submit that, in many ways, it might be better to permit literature on this subject so that people could be protected, could inform themselves on the dangers, could understand the options open to them. Others might say no, it is better to prohibit literature about abortion entirely. In other words, they would leave the law as it stands. Then there is the third position: that very often responsible books and periodicals which deal with family planning in the full sense also deal with abortion. I would say there is an argument there which ought to be discussed on the Committee Stage of this Bill, or of any measure to change the law. We, in a sense, have been conservative on this issue and have confined ourselves to amending the censorship laws in so far as they would prevent books and periodicals describing various methods of family planning and the use of various types of contraceptives.
I am trying to make it clear that if this Bill receives a Second Reading from the Seanad and goes on to Committee Stage it is open to the Seanad to bring in amendments. It is open to Senators to vary the types of controls which have been introduced in the Bill or to introduce new controls.
My final point is to dispute the logic of the amendment which the Leader of the House will move. He will move an amendment that the Seanad does not give a Second Reading to this Bill. But if he considers the necessity for a Bill on family planning—and I hope that as a lawyer he will have followed the arguments I have made about the unsatisfactory nature of the present law and that he will agree on the necessity for a Bill on family planning to regulate the existing position and to introduce controls—I submit that his motion is not logical. Why refuse a Second Reading to a Bill which can be amended on Committee Stage, which can be restricted, which can have controls built into it? This Bill is broad enough to be changed quite dramatically in the course of its passage through the Houses of the Oireachtas.
I would submit that the viewpoint which I think Senator O'Higgins represents—and which he will have the opportunity to speak on—is that of those who are most concerned about the dangers to this country of changes in the law relating to family planning. These people should be those who are primarily concerned about the existing law and about the need for regulation if we are to prevent abuse; if we are to prevent the flooding of this country by mail order firms; if we are to prevent the importation by people on a large scale of contraceptives from outside without really knowing or being able to inform themselves on the dangers of these contraceptives.
That very group of people who, in good faith, are rightly concerned about this whole question of family planning, should be those who are most anxiously promoting legislation. Because we cannot abdicate our responsibility. This is not a matter on which we can—as I said last night— either play party politics or delay indefinitely in introducing a Bill and then fail to secure a majority. It is a matter on which we must legislate in the public interest and one in which we have a clear duty to act. Therefore, although I certainly do not dispute Senator O'Higgins's right or the right of any Senator to put down a motion, I do dispute the logic of that motion. I would ask the House to give a Second Reading to this Bill and to pass it into the law of the land.