Tá náire orm mar Theachta Dála bheith anseo chun an ábhar seo a phlé. Bímíd i gcónaí, is féidir liom a rá, ró-lag agus ró-dhéanach. Agus rud eile, is fear mise, is fear an Teachta Boland agus is fear an tAire. Cábhfuil mná na hÉireann? Nil mise ag trácht ar an dream thíos i gCorcaigh ach ar mhná na hÉireann ar fad. Bhí an Teachta Ahern ag labhairt linn cúpla nóiméad ó shin agus creideann sí go hiomlán, agus admhaím é, sa mhéid adúirt sí, ach creidim féin nach labhraíonn sí ar son mná na hÉireann ar fad. Níl mná na hÉireann anseo. Tá siad lasmuigh den Teach seo. Tá siad ag fanacht agus ag feitheamh orainn, agus céard atá san mBille seo dos na mná sin? Níl faic ann. Ní chuireann an Bille seo feabhas ar chor ar bith ar an dlí. Beidh an dlí níos measa, i bhfad níos measa, i ndiaidh an Bhille seo ná mar atá sé i láthair na huaire.
This is an extraordinary Bill for us to have to deal with at this point in our national history. I regard it as a piece of political hypocrisy second only to that of Pontius Pilate. To assess that, we only have to look at the record in this area of the party now introducing it. I speak with some knowledge of this because with Senator Robinson and other Senators, when I was a member of the other House, I was partly responsible for the first legislative effort in 30 years to change a law that had never been passed. That was almost ten years ago.
In the intervening decade two things emerged from the ongoing debate with considerable consistency. One is that Fianna Fáil in government and in opposition have an unblemished record of total opposition to any attempt, however well meaning or however radical, to change the law on contraception. When I was a Member of the other House the Fianna Fáil Senators were led many times by that kind and good man, the later Senator Thomas Mullins, who must have done many things that he would have preferred not to on behalf of the party, tramping through the lobbies not just to defeat a Bill but even to prevent any rational discussion of it in one of the two Houses of the Oireachtas to which Members are elected. Fianna Fáil maintained that record in this House. There is another consistency that I would draw to the attention of the House, that is the fact that in that intervening decade it was the Labour Party alone who consistently voted in favour of changing the law on contraception. The measures which the Labour Party advocated were never passed into law. They may not have been ideal measures. The Bill introduced by the last Government was certainly not by any standards an ideal Bill but the Labour Party has a record that is honourable. Set beside the record of the Fianna Fáil Party it makes that party's claim to radicalism look very thin indeed.
It is no secret that in the period coming up to the last General Election, the failure of the previous Government's Bill had helped to make the present situation, a situation that has existed since the McGee judgment in the Supreme Court, an election issue. Even before they left office in 1973 the previous Fianna Fáil administration admitted as much when the Taoiseach told a Fianna Fáil ArdFheis that nettles would have to be grasped. We have known for years that nettles would have to be grasped. What nobody would have expected was that Fianna Fáil would not only be the last to grasp the nettles but that they would don so much protective clothing before they did so. Coming up to the last election various Fianna Fáil spokesmen deliberately made an election issue of this problem and in their attempt to do so made very many successful attempts to confuse the electorate about exactly what they were promising. They suggested that when they got back into office they would introduce and pass a Bill which would be all that would be needed in the present situation. The Irish Times on Monday, 17 January 1977 records a number of speeches at the third Fianna Fáil national youth conference on the previous day in Dublin.
The first two paragraphs read:
Delegates at the third Fianna Fáil national youth conference in Dublin were told by Mr. Desmond O'Malley, TD, yesterday, that the party would introduce legislation on contraception when it was back in office.
Replying to calls for Fianna Fáil action on the issue, Mr. O'Malley, Opposition spokesman on Industry and Commerce, said that there was a great feeling in the country that in many areas of the wider plain of civil liberties, "we will have to get to grips with the reality of the world we live in".
Later the same newspaper records Mr. Tom O'Donovan down in Clontarf saying that:
The party "has far too long turned a blind eye to family planning". He called on a Fianna Fáil Government to bring in new legislation on contraception and set up a comprehensive system of family planning clinics throughout the country. No Government had a right to impose antiquated morals on a progressive society. If a woman needed to have access to contraception, then no Government had the right to deny her this right. If a mother was deprived of her health, the family suffered, and if this happened society suffered.
Let us go back to that splendid oratorial flourish of the present Minister for Industry, Commerce and Energy:
We will have to get to grips with the reality of the world we live in.
Can anybody with two eyes in his head, whether one be blind or not, compare that sentence with this Bill and say this Bill represents a getting to grips with the reality of the world we live in? Can anyone who understands plain English compare this Bill with the statement by Deputy O'Malley, as he then was, that this was a problem in the area of civil liberties with which they would have to come to grips? They have come to grips with it because in this Bill they are objectively reducing the area of civil liberties which existed when Deputy O'Malley was speaking to the Fianna Fáil youth conference. That was the Fianna Fáil approach to civil liberties, to reduce them. It is certainly the situation in relation to this Bill.
Among the other aspects of this Bill which we will have to consider is the context in which it is situated. When Deputy Ahern was speaking a few minutes ago she suggested it was a noble effort and would be widely regarded in future as something of which the Minister, the Government and the country could be proud of. This Bill will not be a monument to anything except the Nervous Nellies in Irish society today who do not have the courage inside this House or outside it to face reality, and the courage to take the appropriate action reality demands.
Already there is a distinct sense abroad that the Minister for Health wants to bury this Bill as soon and as deep as he can. He will not mind if the Supreme Court heads after it with picks and shovels. So far as he and his party are concerned it will be buried and the sooner and the deeper the better. I believe the process may well be reversed, and that few things may do as much damage to the reputation of the Minister and the Government as this Bill we are dealing with here today.
There are two points of view about the individual and party responsibilities of Members of the Oireachtas faced with this Bill. One is that we would all in this House like to pass a realistic, sensitive, caring measure which would meet the real needs of the situation, but that we are to some extent afraid to do so because our constituents, God love them, being more conservative and timorous than we are, would immediately sweep us out of our seats. I do not believe this to be the case. I do not believe that our constituents, by and large, are of this frame of mind. Even if they were, we have been elected to this House not just to reflect our constituents' opinions, not just to pass their prejudices into legislation in as precise a form as possible, but to provide some leadership in Irish society in general. Here is an issue above all where this kind of leadership is needed. This Bill fails to provide that leadership. It fails to match the rhetoric during Fianna Fáil's period in Opposition. It fails most lamentably to meet the objective needs of the present situation.
In passing, there is one point to which I would like to refer, that is, the section of the Minister's speech in which he made it quite clear that this Bill was not, as he put it, opening the floodgates to anything. Deputy Ahern went further, and was more accurate in a sense, when she said it was closing floodgates. I would dispute the definition of floodgates because access to contraception is still nothing like as widespread or as nationally organised as it ought to be to meet the needs of the vast majority of couples in this country.
The Minister is in a peculiar position. On the one hand he has people who would like to see positive legislation for family planning and, on the other hand, he has people who believe any legislation involves liberalisation of the existing law. The message must go out loudly and clearly from this House—because it is certainly not coming out too loudly and clearly anywhere else—that this measure does not involve any liberalisation of the existing law. Not only that, but it involves a very severe restriction on the situation as it exists. For the sake of family planning in Ireland, even bona fide family planning to use the Minister's famous phrase, it would be better if the present situation were allowed to continue as it is.
Among the people who are afraid of any legislation because they think it represents a liberalising tendency on the part of the Minister and the Government, there are people who seriously misunderstand the objective needs of the situation and who seriously misunderstand the effect of legislation. There are people who have no intermediate psychological position between conceiving of something as banned and conceiving of something as compulsory. We are very prone to this. We tend to think something must either be banned or be compulsory, that it must be banned until it becomes compulsory, or compulsory until it is banned. They do not realise that liberalising legislation, if such were being discussed here today, does not force anybody to use contraception. It simply opens an option which is a legitimate option for adult human beings in Irish society or, indeed, in any society today.
The whole question of family planning is not by any means new in Irish society. Family planning itself is only one aspect of a whole spectrum of measures of population control which have been used by individuals, by organisations, by societies and by Governments from time immemorial. It is absurd for us to approach this Bill as if it were the first time anybody in this country thought about or acted on the idea of population control. We in Ireland, like people in every other society in the world, have always practised one form or another of population control. One of the differences between Irish society and other societies has been that between 1935 and the McGee case, one particular form of population control, namely contraception, has been comparatively inaccessible. The irony of that is that this has forced an undue reliance on other methods of population control, methods which in themselves have often been far more savage and far more socially and personally disruptive than the simple private practice of family planning through contraception.
We have controlled the size of our population traditionally by emigration. We have controlled it by social pressures which lead to late marriage or to no marriage at all. One-third of the men born in Ireland in 1900 never married at all. A statistic of human deprivation and misery greater than that would be hard to find.
It is arguable also that we have to some extent controlled our population by abortion and infanticide, even though both are illegal. Late in 1976 an American sociologist in a thesis presented to the University of Stockholm suggested that, while the Irish had traditionally rejected the idea of abortion, they have on the other hand killed and abandoned children after birth more often than have the English, Scottish or Welsh. Mr. Rose, the gentleman concerned, had his report dealt with in some detail by Dr. David Nowlan, Medical Correspondent of The Irish Times on 24 December 1976. This report pointed out that, statistically speaking at any rate, figures for infanticide and concealment of childbirth over a period of almost 100 years show significant differences between Ireland and the other countries under examination. Dr. Nowlan quoted a piece from The Cork Examiner of October 1929 where a judge in County Cork was reported as having said that “the number of newly-born infants in the country who were murdered by their mothers at present surpassed belief”.
It is sometimes alleged that the introduction and more general availability of contraception leads inevitably to abortion. This is plainly untrue as has been evident to many people for quite some time, but there is some interesting statistical evidence in Mr. Rose's report of a sample that he made of Irishwomen who went for abortion to London in relation to their previous history. I quote again from The Irish Times:
At the time of conceiving the pregnancy which they were seeking to have terminated, 76.59% of them were using no contraceptive method at all. Another 13.29% were using some kind of rhythm or "safe period" method while 5.31% were using condoms and 4.25% were using withdrawal or coitus interruptus.
There you have quite unambiguous evidence not only of the lack of connection between contraception and abortion as is frequently alleged, but of an apparent connection between the lack of contraception and recourse to abortion in circumstances in which contraception is not available. The Act which this Bill seeks to repeal was introduced in 1934 at a time when the legislative hysteria on the subject was reaching extraordinary heights. The Criminal Law Amendment Bill, 1934, as it was when it was first introduced, was basically a Bill to outlaw prostitution and similar offences. On the Committee Stage debate in the Seanad of the Criminal Law Amendment Bill, on 6 February, 1935 a Senator Moore introduced an amendment proposing a subsection which would enact that every girl under the age of 18 years should wear a distinctive costume or armlet. That gives some flavour of the spirit of the time. This was the kind of moral code which legislators had at the time that Bill was introduced. The Attorney General of the time went to some pains to minimise the effect that this would have on the availability of contraceptives. I quote from the Official Report of 28 June 1934, column 1246, volume 53:
This Bill is the result of the recognition of all members of all parties of the necessity for strengthening the law dealing with sexual offences, particularly with regard to offences against young girls.
That, according to the Attorney General, was the key issue that the Bill had to face, and nowhere in his speech did he give any undue prominence to the severe restriction on personal liberty which section 17 of the Bill was proposing to introduce.
It is interesting to note that the subject was regarded as so sensitive at that time that it was committed to a select committee who met in private. It is also interesting to note that this select committee reported in favour, if anything, of a more liberal position than was written into the Act when it was passed, a position which finds itself reflected in the Bill currently before us. In column 2020 of the same volume of the Official Report, it is stated:
That committee...recommended that the sale of contraceptives should be controlled by similar conditions as those which control the sale of dangerous drugs.
Certainly the committee did not recommend that their sale should be entirely prohibited or rendered a grave offence.
Even in 1935 there were some voices of sanity. In the Official Report of the Seanad of 6 February 1935, column 1248, Volume 19, Senator Mrs. Clarke spoke with sound common sense:
...this is a Catholic country and if the laws of the Catholic Church prohibit the use of these things, well, then, I do not think we have really a terrible lot to fear.
Would to God there were a few more Mrs. Clarkes around today. If there were we would not be facing in so many directions at once as we are attempting to do on this Bill. Common sense was not confined to Mrs. Clarke. In the Seanad on the same day the Leader of the Labour Party, Senator Johnson, described this aspect of the Bill dealing with contraception as, and I quote from column 1257 of the same volume:
...a libel upon hundreds and perhaps thousands of honest, God-fearing, holy women. It is putting their practice in the same category as brothel-keeping and prostitution.
Even in 1935 there were people with the opposite point of view. Senator Comyn described section 17 as "more valuable than any other clause in this Bill". He went on to say at column 1248 of the same volume that:
...the trade in these contraceptives would mean the destruction of this race, and it is on these grounds that I am in favour of this clause.
Further on he said:
...its defeat ...would be corrupting the youth of this country.
A more in-between position was held by Senator Gogarty who responded fairly strongly to the allegations of racial suicide as a result of contraception and pointed out that there is a worse thing than racial suicide and that is racial syphilis. At column 1255 he is reported as saying:
I am sorry Senator Moore did not discriminate between the medical and prophylactic aspect of these drugs and the use of them, which I cannot naturally uphold, in order to allow people to sin without having the ordinary consequences.
That was a typically Gogartian attitude to the problems in hand at the time. I very much suspect that there was no real call for the introduction of that legislation at that point in time. Even to this day we have not been shown the report of the Carrigan Committee on the basis of which this legislation was drawn up. All Ministers for Justice who succeeded the Minister for Justice of that time, including the former Minister, now Senator Cooney, have resisted attempts to publish that report, or even any excerpts from it. I believe that if that report were published it would show that there was not this groundswell of support for a change in the law on the basis of which, supposedly, the law was changed.
Lest I be accused of being unduly chauvinistic about this, it is only fair to point out that this attitude to contraception was widespread in other countries as well and among the Nervous Nellies of the period. In 1934 the Anglican Bishop of London told the House of Lords that when he heard of 400,000 contraceptives being manufactured every week he would like to make a bonfire of them and dance around it. There was in this area a kind of national hysteria which, to my mind, was not a reflection of any real feeling among the vast mass of the population, but it was one which had very dangerous and authoritarian overtones. In relation to contraception in particular it finds its most eloquent expression in a booklet entitled National Action, A Plan for The National Recovery of Ireland published under a pen name by the Gaelic Athletic Association in August 1943. The pseudonymous author of this document referred several times to the question of contraception and to what he called the problem of national population and national action. He said, on page 119:
Some of the wealthiest countries in the world have falling populations: not because of economic stringency but from deliberate violation of the law of Christ. The most race-ravaging and insidious world cause of small families, or no families, today, is race suicide or immoral birth control. This national blight, State-encouraged in several countries, has already, in our own time, brought some of the greatest and proudest nations on earth to their knees. The plague is spreading. In a non-organised country like ours, prone to imitate, it would be too much to hope that we should escape entirely from this race-rotting iniquity. It is vigorously, but rather single-handedly opposed by the Catholic Church. This evil cannot be stamped out by the Church alone. The Church's efforts must be equally and positively supported by the State. Neither half-measures, restraint, "kid gloves" nor political caution will avail against it. First offence warnings and petty fines for traffickers must be replaced, without mitigation, by penal servitude, expulsion of aliens, and the lash.
It is strange to look back and realise that only 30 years or so have passed since those words were written, not only written but the booklet went pell mell into the second edition because the first was sold out so quickly. A lot has happened in those intervening years. Not only that, but I would argue in relation to what happened 30 years ago that it was simply an attempt by a small and unrepresentative group of the population, as part of a kind of national hysteria they tried to foment, to seriously and calculatedly restrict an important area of civil rights. In the same way I believe the same attempt is being made today to stir up the same kind of hysteria we had in the late 1920s and 1930s in order to prevent any liberalisation of the legislation we are discussing.
There are two main aspects of the Bill we are debating, each of which has its historical dimension. I have dealt already with the historical dimension of the question of access to non-medical forms of contraception. I should like now to turn very briefly to the question of control of the advertising and sale of contraceptives. This is a matter which has not received very much attention so far in this debate. Yet it is an absolutely fundamental one, because it is absurd, dishonest and hypocritical to talk about people having access to whatever means of contraception appears to them to be most appropriate without at the same time ensuring that they are enabled to discover where and how they can obtain the means that they choose.
On censorship— and this is basically what we are talking about—unfortunately the position of the legislators when they passed the Act we are now engaged in modifying was just as hysterical as was their attitude to the availability of contraception. This hysteria goes back even further, to a celebrated report known as the Report of the Committee on Evil Literature, set up in 1926, which included the Professor of English Literature at University College, Dublin, and a number of other worthies, and which reported some time later. One witness who gave evidence to the committee believed that Rabelais and Balzac should be banned and was of the opinion that Bowdler's edition of Shakespeare was to be preferred. The committee, in its finally published report, went into some detail about the whole question of the advertising of contraceptives. It is interesting to note, in passing, that the report as a whole is infused by a very strong class element. The worthy members of that committee believed that it was quite permissible for certain people to have access to certain kinds of literature because they were educated, sophisticated and altogether of a social class which is not liable to be corrupted. But they had a Nannyish, paternalistic irrelevant concern for the poor of the cities of Ireland and indeed of the countryside as well. The kernel of the report which was enacted subsequently in that Act in relation to censorship is on page 15 and reads as follows:
The effects of an indiscriminate advertisement and circulation of the publications are not to be judged by the professed original intentions of some of the authors. Undoubtedly the propaganda has now assumed the character of a widespread dissemination of knowledge propagated to free vice of one of its most powerful restraints. The effect upon general morality must ultimately be very bad. The witnesses were practically all agreed that this propaganda is offensive to the preponderant moral sense of the community of the Saorstát. The one or two witnesses who expressed doubts as to the desirability of prohibiting absolutely the publication and circulation of the books and pamphlets commending the practice of contraception agreed that the matter and advice contained in them should be left entirely to the medical profession to deal with. But the great majority of the witnesses expressed the strongest repugnance to the toleration of such publications.
It is a matter of wonderment that 50 years almost after this report was written we have a Minister for Health coming into the House with provision on censorship which finally achieves the position adopted by two of the most liberal witnesses of the Committee on Evil Literature set up in 1926. After all these years we have now achieved a position that was liberal in 1926, by deciding that the advertisements for contraceptives should be effectively confined to newspapers and journals circulating to the medical profession. This is another area of unworkability. Is the Minister going to ban The Spectator or the New Statesman? Is he going to ban any magazine, however prestigious, which happens to have among its small advertisements discreet announcements as to the availability of contraceptives for sale? Is he going to legislate into existence a situation where these magazines and newspapers will be liable to prosecution and very serious penalties for carrying advertisements which are, in the normal course of events, completely unexceptional?
The Censorship of Publications Act which we are attempting to amend in this Bill was discussed at length in the Seanad in April 1929. One Senator, Sir John Keane, again, unfortunately, in a minority, had a certain amount of common sense to utter on this issue. According to Volume 12 of the Seanad Official Report, column 61, he asked:
Why picture sex immorality and unnatural vice as corrupting and degrading and not picture a lot of other forces as degrading such as drugs, drinking etc.?
At column 62 of the same volume he drew attention to the anomalous situation where:
A book may also combine sex and economic heresy, and sex and Gaelic intensification.
One of his most sensible comments was that at column 70 which was as follows:
We have had forty or fifty years of free education, yet despite all that we have drawn a picture of the people of this country showing them thirsting for moral garbage in the most prurient and suggestive Sunday papers, unable to exercise a wise choice and so lacking in the power of discernment that undesirable matter must be forcibly withheld from them.
That was almost a lone voice in the Seanad of the time. In retrospect we can see not only that it was a sensible voice but that it is still a sensible one, and the kind of sentiments it expressed do not, unfortunately, find an echo in the thinking of the Minister and his Department on this and related issues in the Bill.
In his introductory speech the Minister went to considerable pains to point out the degree of consultation he carried out. He said:
...most of them took the view that the present position, which allows any person to import contraceptives for his own use, but in which they cannot be sold, should not be allowed to continue. It emerged clearly that the majority view of those consulted was that any legislation to be introduced should provide for a more restrictive situation in relation to the availability of contraceptives than that which exists by law at present.
I accept that as a factual account of the Minister's process of consultations, but the point for the Minister to decide is not what a majority of institutions—most if not all of them which are conservative by nature by virtue of the fact that they are institutions—have called for restriction rather than liberalisation. His job is to implement the wishes of the Government regardless, if necessary, of the views of institutions. He should ensure that those governmental wishes framed in legislation are such as meet the needs of individuals and families in this situation and not the often embattled position of institutions.
I find it extraordinary that the Minister can pretend that the Bill meets the real needs of the situation. It meets one need certainly, the need of the Fianna Fáil Party for a Bill that will get the support of the Fianna Fáil Party in the House but that is a political need and not a family planning need, a health need, a social need or any need. That is the Bill's major and, perhaps, its sole function, to get something through the House at whatever cost to satisfy the letter of the Fianna Fáil promise, although not the spirit of their rhetoric, and to let any further work of legislation be done in dribs and drabs by private individuals in the Supreme Court or, perhaps, outside it.
Another interesting aspect of it is that the Bill has been greeted since its publication by a number of comments from a number of different sources. There has been, however, a thunderous silence from all the churches, churches who are not slow to pronounce when they feel they need to pronounce on matters of public morality. I am reminded of the admonition made by Sherlock Holmes to Dr. Watson when he drew Dr. Watson's attention to the question of the dog in the night. Dr. Watson said: "But the dog did not bark in the night.""Yes indeed," said Sherlock Holmes, "the important thing is, my dear Watson, that the dog did not bark in the night." We have evidence here in statements and silences that the Bill has been primarily framed not to satisfy the individual and private personal needs of the people in family situations in Ireland but the needs of institutions and powerful interest groups who may or may not have the welfare of the family at heart—I am not disputing their bona fides in this matter at all. However, I am disputing the Minister's action in looking for an institutional consensus on a matter which is fundamentally a personal and private one.
The situation has changed considerably over the years and with particular rapidity since the judgment in the McGee case and the opening up in various areas of a number of family planning clinics. At the time of the McGee case and, one could argue, for some time before that case this was a majority issue in the sense that a large number of people, perhaps objectively a majority of people, would have been prepared to see legislation that would reset the McGee decision in a liberal context and not in the restrictive context in which it is not being inserted by the Minister's Bill. The pressure for reform since the McGee case has lessened because of the success of the family planning clinics in providing a much wider range of contraceptive advice and materials to a much greater number of people than was possible before the judgment in the McGee case. Naturally, when the means and the advice are more widely available than before the pressure for change lessens, but I predict that if the Bill is passed—I have every reason to suspect it will be passed exactly as it has reached us—the pressure will again build up and the pressure for change in the law will then become a majority issue.
I have not believed for ten years as a legislator here and in the other House that I was representing a minority interest in wanting a liberalisation of the law. I believe that interest is a majority one. It does not appear to be a majority interest at the moment simply because the problem is not as great since the introduction and the spread of these services in the family planning clinics. When those clinics are closed down by this Bill it will again become a majority issue. The Minister may have gained something in the short-term by honouring a commitment to pass a Bill through the Oireachtas but he will find himself, from now until the next general election and perhaps beyond it, at the receiving end of another interminable series of wrangles of Supreme Court judgments which may necessitate the enactment of further legislation. He will be entangled in this Bill for as long as he is Minister for Health.
There are a number of aspects of this Bill which I find quite extraordinary and I would like to deal with them. The main aspect to which I must draw attention is the obvious and inevitable effect the Bill will have on the existing family planning services. These services are provided partly by GPs and partly by the network of family planning clinics. They are not as successful as they ought to be. If this Bill is passed unamended they will have no option but to break the law or to go out of business. Many people are still under the impression that, because the Bill gives the Minister the right to license or to recognise family planning services, it gives him the right to license the existing family planning clinics to continue the work they are doing.
The Minister has not done that but, Houdini-like, has tied his hands behind his back in the definition section of the Bill. Once this Bill has been passed the Minister cannot license the present family planning clinics to go on providing not only advice but contraceptives in the way they have been doing up to now even if he wanted to. The definition of a family planning service explicitly excludes the provision of contraceptives. It is absurd to talk of any comprehensive family planning service that does not include this function and that does not include it in a way which makes access to contraceptives something which can be made available to anybody who decently wants it for family planning.
Under the Bill there will be very severe restrictions but they will not hit everybody equally. They will hit most severely the people living in rural areas whose doctors and pharmacists may not be willing to take part in the provision of family planning means. The access will be restricted also in the case of the poor who cannot move very often from one area to another, from one unfriendly doctor or unfriendly pharmacist to a friendly doctor or pharmacist and also do not have the opportunity to leave the country so that they can import contraceptives for their personal use when they return.
This Bill, in particular, creates a major problem for medical card holders and also for the doctors who will be prescribing for them. This Bill will now make it impossible for doctors to prescribe to medical card holders any form of contraceptives other than the pill prescribes, under an age old form of hyprocisy, as a cycle regulator. Every doctor in the country knows that this is a completely hypocritical situation. He must also know that the pill is not by any means the most appropriate contraceptive for many women. It is the only form of contraception which will be supplied free of charge to medical card holders. The option facing them will be to go on taking something even if there are strong medical contra-indications to it or to pay what little money they have at their disposal for whatever method of contraception may be appropriate to them. This Bill is pre-empting fundamentally personal decisions because the Minister does not want to face the particular odium which may attach to him if he allows all forms of contraception to be supplied through the health boards free to medical card holders. This is another area where the Minister is discriminating against the poor.
I believe that one of the main reasons why this Bill got through the Fianna Fáil Party; why it has evoked such eloquent silence from so many powerful interest groups outside the House and why it will be passed in its present form, is the closure of the clinics as they operate at present in relation to the provision of the means of contraception and especially of non-medical means. It is extraordinary also the hypocrisy we sometimes give vent to—this is not a particular preserve of people inside the House or outside it—in relation to young people. We regard people of 17 years and over as adults and able to engage in sexual intercourse without fear of the criminal law. We regard people of 18 years and over as responsible enough to vote into office the Minister for Health and 83 of his comrades; yet we do not regard people of those ages as being responsible enough to take responsible and mature decisions about their sexual activities unless it is for these alleged "bona fide family planning purpose”. I believe that the phrase “bona fide family planning purposes” will go down in history as one of the most deliberately woolly and unenlightened phrases ever introduced into a Bill. It will pose considerable problems not alone for doctors and pharmacists but for judges, because we must remember that in our system judges interpret the law as they find it. They are not allowed to interpret the law by reference to what the Minister may have said in the House or outside it. In relation to what he said outside the House on this matter, I should like to draw the attention of the House to a report in The
Irish Press of 16 December last when the Minister was speaking on RTE radio. He said:
If the doctor is satisfied that contraceptives are necessary for bona fide family planning purpose it is not his obligation to go into the niceties of whether it is, strictly speaking, within the terms of the law a legal marriage.
The Minister did not include that in the speech that he delivered to us recently. Even if he had, it would have absolutely no effect in relation to the interpretation and implementation of the law by the courts.
There is another area in which I find this Bill particularly unhelpful and paternalistic and that is in its implied attitude to the position and the role of Irish women. It has not come far, if indeed it has travelled any distance, beyond a phrase in the Constitution that was passed in 1937, Article 41.2.1 states:
In particular, the State recognises that by her life within the home, women gives to the State a support without which the common good cannot be achieved.
I doubt that the assumption on which that phrase was based was true even in 1937. Certainly it is not true today. It is true that we have the smallest percentage of women working outside the home of any of the EEC countries but that proportion is rising rapidly and soon it may be expected to reach the EEC average. The idea of the woman as exclusively the homemaker is one that strikes at the heart of many modern ideas about the liberation both of men and women from sex stereotyping and about the extension of economic and social equality to all citizens regardless of their sex.
That phrase in the Constitution, as indeed this Bill itself, is based on another false assumption in relation to women, that they all have access to the same quality of health care and social support and to the same economic resources to enable them to plan for, care for and support a family of indeterminate size. One of the major individual and societal changes in the past few decades has been the dawning recognition of the fact that artificial contraception, for the first time since it became reliable to any degree, has given women the right to say when their bodies have had enough. It has given women the right effectively to plan their families and to play a fuller part in society and in work inside and outside the home.
This Bill is a throwback to 1937 in its attitude to women. In the effect it will have on family planning clinics, it is severely restrictive of rights that have been barely and with difficulty won through the Supreme Court. The Minister may argue that it will be open to the family planning clinics to employ pharmacists so that they will be able to dispense on the premises as they do at the moment. I do not know if that argument can be advanced with the remotest degree of seriousness given the actual financial situation under which most of the clinics operate.
Of course anybody can employ a pharmacist if he or she has the money. It is possible that the larger clinics——perhaps the one in Dublin—will be able out of their financial reserves to employ a pharmacist for a year or two before they run out of money and are forced to shut up shop, but this is not true of some of the other clinics. I can guarantee to the Minister that the option of employing a pharmacist, even if it were morally right which it is not and even if it were necessary which it is not, would not be an option for the clinics in Galway and Limerick. The theoretical possibility open to these clinics of employing a pharmacist is so ludicrously out of court in practical terms that effectively family planning services as they exist outside Dublin will be closed down in the morning. Even if the Dublin clinics were to go ahead and employ a pharmacist or pharmacists, this would be merely staving off the evil day.
After the passage of this Bill the clinics effectively will be forced to break the law and the Minister or the gardaí will be forced to take action against them. That is why I say the Minister is not solving the problem; he is not burying it by the passage of this Bill. He will stir up such a hornet's nest as will make him regret that he ever ventured into this area.
If the clinics are closed down as a result of breaking the law or otherwise, one of the major ingredients for the provision of a fully comprehensive family planning service, namely, the training of doctors, will also be more difficult to attain. Where are the doctors and nurses going to be trained, not just in natural family planning methods but in all family planning methods, if the clinics close down? At the moment there are a maximum of 115 or 120 general practitioners in Ireland, including those who were trained in England in family planning methods, who have any expertise in this area. That number will shrink after the passage of this Bill and the Minister will be quite unable to provide a family planning service in anything other than natural family planning methods. This is pre-empting not only the right of an individual to choose but it is also pre-empting the right of the doctor to decide in certain circumstances what kind of contraceptive is most appropriate for a couple.
Incidentally, where doctors are concerned there is one aspect of the Bill to which I do not think the Minister's attention has been drawn. As I understand it, section 4 (3) withdraws from the medical profession one of the rights it has at the moment. One is used to the fact that the medical profession generally is very jealous of its rights. It does not like to have them circumscribed or limited. One of its rights is the right not only to prescribe but to dispense. Section 4 (3) states:
A person shall not supply contraceptives otherwise than by way of sale under and in accordance with this section.
Section 4 (1) states:
A person shall not sell contraceptives unless (a) the sale is in accordance with regulations ... and
(b) (i) he is, or is a servant or agent acting as such of, a pharmaceutical chemist, or a dispensing chemist and druggist, ...
As I understand it, after the passage of this Bill the doctor's right not just to prescribe but to dispense contraceptives of any kind will be severely circumscribed if not removed completely, and when this sinks in I doubt if the medical profession will be happy with that state of affairs.
The Minister referred with uncharacteristic innuendo to the fact that "there are commercial interests seeking their own ends". He should have been straighter with us on this issue. He should have told us the commercial interests he had in mind. Of course there are commercial interests in this area, but there are very many and very different kinds of commercial interests. The two main commercial interests in this area are those of the family planning clinics, who are currently distributing contraceptives, and Family Planning Distributors Limited which is importing them, and the interests of the companies, many of them multi-nationals, who make and sell contraceptives of both medical and non-medical varieties.
The interesting distinction between these two sets of commercial interests is that the first group—the family planning clinics and Family Planning Distributors Limited—are non-profit, non-shareholding limited companies. They cannot be taken over by any outside group and they must by law plough back all their profits, such as they are, into the provision of further research, further facilities and even the means of contraception free for people who need them. The other commercial interests are those of the chemical wholesalers. They are not interested in family planning as a priority. They are commercial undertakings and are interested in profit as a priority.
Given the choice between these two, I do not see the logic or the sense of this Bill, because effectively what it does is hand over any profits that are made from the sale of orthodox contraceptives, and condoms in particular, into the pockets of already wealthy people in the United Kingdom, Canada and the United States of America. If the Minister were more caring in this regard, if he were more genuinely concerned about the spread of a full and comprehensive family planning service, he would recognise that the most potent source of finance for the development of family planning services lies in profit from sales, and there is only one group of organisations which is committed, by the instrument under which it exists, to reinvesting profits from sales in the necessary business of helping people who are too poor to provide the means of contraception for themselves, of training doctors and nurses and of carrying out research into all forms of contraception.
To give a simple example. One particular form of barrier contraception which is presently available through the Irish Family Planning Clinic at £2.50 to the customer directly will be sold, and is being sold outside this country, by the chemical wholesalers to the pharmacists at a wholesale price of £3.60. If the same kind of arrangement obtains here, we will see that the supply of these items will not only dry up in relation to present sources supplying family planning clinics, but it will go up sharply in price as the pharmacists add their dispensing fees and their profit margins.
It has been estimated that the turnover from non-medical forms of contraception in this country is in the region of between £250,000 and £500,000 a year. The question I am addressing myself to is, where is the profit on this turnover to go? Is it to go into the pockets of the multi-nationals, the already wealthy people, in this country and outside, or is it to go into the development and extension of genuine comprehensive family planning services? That is the choice we face. On the evidence of the choice the Minister has made, it is going into the pockets of the multi-nationals.
Already pharmacists who get a month's supply of the anovulent pill for 25p from the wholesaler are selling it at over £1. Even if the hapless parent, or adult person in a family situation, does not have to go to a doctor every time for his prescription and authorisation, there will still be, immediately on the passage of this Bill, a very sharp differential between the price at which people were able to buy the ordinary non-medical means of contraception and the price they will subsequently be required to pay.
At the moment family planning clinics will supply a packet of condoms for approximately £1.30. Add a prescribing fee to that and you come up with £1.90; add a further profit margin and you are in the £2 to £2.50 bracket. Overnight, regardless of whether a doctor will charge for a prescription or authorisation, we are effectively doubling the price of ordinary non-medical forms of contraception. The chief and most obvious effect of doubling the price will be the emergence of a substantial black market.
I do not know if the Minister is aware of this, if he is concerned about it or if he proposes to do anything about it, but it is undeniable that in any situation in which there are such enormous profit margins the emergence of a black market is inevitable. In turn, the emergence of a black market will frustrate many of the objects of any comprehensive family planning service and, perhaps, especially of the joke of a comprehensive family planning service which we have referred to in this Bill.
The fundamental message that must go out from this House is that this Bill is worse than no Bill. In a sense one might almost argue that the best thing that could happen is for the Bill to be passed as speedily as possible, with all its glaring anomalies, defects and inconsistencies, because I suspect that whatever is said from these benches, the full extent of the nastiness and of the irrelevance of this legislation will be lost on the majority of our people until they are faced with its inevitable legal, social and personal consequences.
