Progress was reported by Deputy Horgan. Is section 7 agreed?
Health (Family Planning) Bill, 1978: Committee Stage (Resumed).
Question again proposed: "That section 7 stand part of the Bill."
Question put and agreed to.
SECTION 8.
Amendment No. 28 has been ruled out of order.
Question proposed: "That section 8 stand part of the Bill."
Subsection (1) refers to a prescription or authorisation to be issued by a registered medical practitioner and makes reference to "a specified document". For clarification of the intention of this section it would be useful if the Minister could explain the difference between a prescription and an authorisation, on the one hand and, on the other, if he could say what is the purpose of subsection (5). It is a rather unusual subsection and I have been at a loss to understand its intention.
First of all, to take the Deputy's question about subsection (5), its purpose is to enable the Minister to make provision for certain persons like pharmacists, their employees and gardaí who in the course of their business and official duties on occasion may come to have documents in their possession. The provision is by way of a safeguard to ensure that they will not be caught up in the general provisions about forgery, fraudulent authorisation and so on.
In other words, if it was to be discovered that a chemist had a forged prescription for contraceptives he would not be liable to a penalty?
No.
It rather seems to imply as well that, apart from the rather outlandish provisions of the Bill in general, possibly there is an intention that after all this machinery is set up whereby people go to doctors to get prescriptions, go to chemists to get contraceptives, to have some sort of police force or team of forged contraceptive prescription investigators travelling the country visiting pharmacists and inspecting prescriptions that have been issued and that those people, for the purposes of carrying out that inspection, would themselves be immune from prosecution by virtue of subsection (5) and the Minister's regulations made thereunder. I am hesitant to suggest that that extreme is what is behind this subsection. I should be grateful if the Minister could clarify that aspect for me.
No, there is no intention to have any sort of exceptional police activity in this area. In fact what is here is really on all fours with the provision in the Misuse of Drugs Act. I do not think the Deputy was on that committee, but it is the same sort of situation. I think the Deputy understands that most of those provisions are not really for everyday application; they are really to deal with the occasional exceptional situation. It is necessary to provide these sorts of provisions in this type of legislation as a precautionary measure. Most of our general experience is that once these things are on the Statute Book they are very rarely called into operation.
Unfortunately subsection (6) ends with the words "shall be guilty of an offence". Then we know that being guilty of the offence brings one under section 14 (3) which in part reads:
... to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or to both the fine or fines and the imprisonment.
Therefore, the Minister does tend to adopt this mollifying pose, position, whatever one likes to call it, in respect of this Bill. The hard truth is that without any doubt—it is quite obvious—he has had a very difficult time in getting this Bill brought to the House at all, seriously defective as it is, because of the intensity, dedication, vindictiveness—whatever one likes to call it—or the hostility or opposition to the Bill. That opposition will continue to survive after this Bill goes through.
The Deputy is moving on to a Second Reading speech again.
No, Sir, I am not at all.
We are dealing with section 8 at present.
I am coming back to what I call the attempt by the Minister to mollify us into allowing a section like this to go through because it will be very rarely referred to, or very rarely brought into action. My case is that our experience contradicts this suggestion by the Minister, that if there is any loophole at all, any way in which those opposed to this Bill can fight this Bill, can impede the extension of what they consider to be an objectionable type of contraception, that is the artificial type of contraception, they will use it.
Therefore to bring in a Bill of this kind, with a section of this kind about a prescription as a specified document or authorisation, is an extremely dangerous thing to do for those of us who do not accept the very restrictive nature of the Bill and its inbuilt hostility to the artificial methods of family planning. This is a struggle, a conflict of ideas, attitudes and positions in a certain situation. Obviously I must oppose the decision of the Minister to hand to what I consider my opponents in this struggle such a powerful weapon as this very heavy penalty. I would not mind if the penalties were minor ones—warnings, and fines of £25, £50 and so on. I would not mind that so much; I would object to it but I would not mind it so much. Those are very heavy penalties. If the Minister looks at the success of those impeding the extension of artificial contraceptives over the years I am sure he will realise that this is something we should not agree to do.
Section 14, which we will be coming to, deals with penalties, and the Deputy will have an opportunity to speak about penalties then.
I am putting my argument in the context of the penalties. The penalty imposed in this Bill for the possession of an authorised condom or any of the other things is a much heavier one than the penalty in the 1977 Misuse of Drugs Act.
I want to explain that this is a purely mechanical section. It is the sort of section which is included for operation purposes in all legislation of this sort. There is nothing special about it so far as this Bill is concerned. It is a safeguarding section to ensure that the terms of the Bill are adhered to by the general public and all those specifically concerned with it.
The level of the penalties is simply a reflection of the jurisdiction of the District Court. The level of penalties which the District Court can impose on summary conviction has been increasing over the years. My information is that the Supreme Court and the High Court would regard the level of penalties in this Bill as those which are appropriate to summary jurisdiction. There is nothing more specific in it than that. Each Bill which comes along has to take into account the movement as a result of inflation and other circumstances in the level of penalties which are appropriate to summary jurisdiction in the District Court. It is on that basis that this Bill is framed. There is nothing specifically penal imported into the Bill. It is simply keeping in line with the trend in legislation generally in that regard.
That may be so and I thank the Minister for attempting to clarify the matter. Would the Minister not agree, even accepting that inflation has been frighteningly high, that in the case of a first offence under the Misuse of Drugs Act 1977 the fine on summary conviction was a fine not exceeding £50. In this Bill we have a fine of £500 and six months.
That is the level now appropriate to the District Court.
Why is it not the same level in this Bill?
Which Bill is the Deputy talking about?
The Family Planning Bill.
In the Family Planning Bill we have the current level in the District Court. That is what is regarded now as appropriate to summary conviction in the District Court, £500 or six months. Some years ago it was £100 or six months.
Is it not true that in section 14 there is a fine of £500?
Yes. That is the current level which is accepted. Some years ago it was £100 and six months.
In 1977 it was £50 and now it is £500. Is that correct?
No. For a considerable time the Supreme Court have accepted that the level of jurisdiction appropriate to the District Court is somewhere around £500 or six months.
In the Misuse of Drugs Act, 1977, it says on first offence a fine not exceeding £50.
I was on the committee dealing with that Bill. We put that phrase in specially because of the situation of the young offenders, first offenders.
I am completely in agreement with it.
It is not the level today in the District Court. The legislation now dealing with summary jurisdiction in the District Court is six months or £500. A fine of £500 is now equated to six months. I have a clear recollection of putting legislation through the House some years ago when £100 and six months was regarded as the equivalent level.
On that evidence it appears we are treating this matter of a prescription for a contraceptive as something which is even more dangerous than drugs. I remember the tremendous hysteria there was when that Drugs Bill was being discussed. I objected to it but the House took a very serious view of it. The difference between the approach then and now in relation to the penalties makes us appear to be regarding the possession of an unauthorised contraceptive as a more dangerous thing. A person who finds himself in the possession of an unauthorised contraceptive, having bought contraceptives abroad, brought them back here and then been accused of having them illegally brings this down to a curiously hostile and unbalanced attitude of mind. The Minister talks about balance but if ever there was a lack of balance in the punishment fitting the crime, it certainly seems to be in this case, the idea of putting a person in jail for six months or fining that person £500——
That is more appropriate to section 14.
Is there not a later section dealing with penalties of this sort?
Yes, there is.
It would be more appropriate to deal with penalties on that section.
I accept that. We seem to be treating this as if it was a dangerous drug, which it is not. I am sure the Minister knows that it is a therapeutic part of the function.
This section only deals with the fraudulent use of prescriptions.
I suggest that Deputy Browne waits for section 14 to make the observations he is making at the moment. It is the section dealing with penalties, fines and so forth.
It is an outrageous proposal that an individual should have to go to a chemist with a prescription. This is a criminalising of the whole process of the contraceptive service, as if it were related to the drugs problem which could be said to be a very serious problem in any society. If one is not taking seriously the business of whether one involves oneself in contraception or not, and if some unfortunate garda or crank comes along and says that the person has come in without a properly written prescription, one is involved in a criminal process. The Minister frequently referred to the fact that he was glad to have taken this away from the Department of Justice and to have brought it under the Department of Health. This kind of thing is pushing it back to the Department of Justice because it is certainly not appropriate to the Minister for Health.
Will the Minister clarify the difference between a specified document which is a prescription and an authorisation?
The word "prescription" has certain medical connotations and some doctors might not feel it entirely appropriate to issue a prescription which in their minds is associated with medical matters, for certain artificial contraceptives, so to deal with that matter we use the word "authorisation". There is no particular significance in it.
A prescription usually applies for a particular period and quantity. The Minister says that an authorisation is not a medical document as such. Does the Minister envisage that an authorisation can be for an indefinite period and for an indefinite supply?
Not an indefinite period, but perhaps for a reasonable period.
Would the period be required to be specified in an authorisation?
Yes.
By regulation?
No. I will leave it to the good sense of the medical profession.
Question put and agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
The section reads:
The Minister may, out of moneys provided by the Oireachtas, make a grant to a person to finance, or assist in the financing of, research into methods of family planning that do not relate to the use of contraceptives.
My only objection is to the last two lines "that do not relate to the use of contraceptives". I do not understand why there should be this restriction. The Minister is correct in asking for money if he has to, which is something that a number of us doubt. We feel that the Minister can provide money for research projects of different kinds through various devices. It comes as a surprise to think that the Minister may not be in a position to provide money if he feels that he should. If the Minister feels that he can get the money from the Government for this, he should get it, because there is no doubt that tubal ligation and vasectomy, which I mentioned to try to show what I felt were the criteria, is the safest method of contraception. Even that has its psychological problems and so on and it is not entirely safe. However, it is the safest and then one runs down through the various kinds, the condom, the spermicides, the IUD and the pill, none of which are absolutely reliable. The pill is very tedious and is dangerous in the 35 plus class. To answer Deputy Flanagan, we must continue to remember that pregnancy is dangerous especially in the 35-plus age group. A person concerned with pregnancy or contraception is faced with the business of considering the question of safety which is always a great dilemma for her. My only consideration is the right of the lady choosing contraceptives to have a multiple choice of contraceptives to protect herself from pregnancy and from having an unwanted child. None of these methods is absolutely safe. The IUD can lead to the formation of cancer and the pill can lead to blood clotting and coronaries. This arose in the McGee case and that is why I introduced the provision for multiple choice, so that a person can decide which is the safest. It is quite unlikely, with the exception of sterilisation which people understandably seem to accept with reluctance, that one is left with the rather unsafe methods and therefore I cannot see why the Minister would restrict them.
I am not restricting them. There is a very simple situation here and there is nothing convoluted about it. I am advised that I have all the necessary statutory authority to allocate funds for research into all forms of birth control and I have existing agencies and institutions capable of carrying out that research. There is some possible doubt that that might not extend to natural family planning and it is simply to enable funds to be spent on research into natural family planning methods that this section was put in. It does not mean any restriction of research into natural family planning methods. Research is going on into all these areas and there is no reason why it should not continue. I have the statutory authority to make funds available for that and the research will be pursued.
The Minister will promote all forms?
All forms.
I am afraid this section was inserted purely to assist the Minister in persuading some of his colleagues to support this Bill. It appears to be an entirely unnecessary section within the context of the Bill because as the Minister said he has the authority to make money available for research into various matters pertaining to the health of the people. The Government have apparently decided that the Minister for Health should have the responsibility for introducing the legislation in this field. At present the Minister has authority to make money available for research into natural family planning methods. This section was inserted in an effort to persuade some of the Minister's colleagues who might otherwise be reluctant, to support this Bill. If there is a need for the insertion of this section so as to validate any moneys that might be made available there is an equal need to insert a section to make moneys available for research into other methods. There is no need for either; the section is superfluous. It is part of the sugar coating in this legislation to make it more acceptable to some people who otherwise would not be prepared to go even the short distance that this Bill takes us.
Question put and agreed to.
SECTION 10.
Amendment No. 28a not moved.
Question proposed: "That section 10 stand part of the Bill."
I am opposed to this section because, as Deputy Boland said a moment ago, the Bill is riddled with face-savers, and this is one of them. On section 9 the Minister had a plausible explanation for the bias in the Bill as a political protective device. The whole is sodden with a sense of guilt at the very idea of introducing this Bill. I submit there is not a reason on earth why section 10 should be in the Bill except that it is a sop to the militant natural family planning lobby. It is their business, and I am not complaining about it. They have worked very hard to smear this Bill, restricted and all as it is. They have tried to lead people to believe that artificial contraception is inextricably linked with abortion, and section 10 seems to support that idea.
The introduction of abortion through legislation is a very serious decision to take and though all European societies have taken it, it has never gone through without heart searching, intensity of argument and the expression of deeply held views. It is a very profound question affecting the whole structure of society, moral outlook and so on. It need not arise here in this Bill because if we were considering the introduction of abortion it would be done in a separate Bill, and I am sure the Minister has no intention of introducing any such Bill.
I do not know whether I should be led on to defend my argument that the section should not be here when I point out that contraception—and the freer the contraception the more likely it is to happen—leads to a reduction in the number of abortions. It is not easy to dogmatise about abortion but it might be appropriate to cite some European figures. In Italy, when the contraception laws were at their most rigid, there was the highest level of abortion. Another interesting figure is that in 1974, when contraception was made free in Northern Ireland and Great Britain, the rate of abortions tended to get lower. Of course all results need not necessarily be cause and effect. Our abortion rate is very high, a known figure of 3,500 annually, and possibly 7,000, and it has continued to rise.
Therefore, it is possible to argue that absence of free contraception tends to increase the rate of abortion rather than the other way. I think the most compelling argument in this matter is that referred to by Deputy Vivion de Valera in relation to the 1861 Act, which is still on the Statute Book. It is an astonishing thing to read about what happened to people and the peculiar crimes for which provision had to be made. Section 58 of that Act deals with abortion, and that section is still operative in our society. Therefore I do not think it is necessary to bring in section 10. The section provides:
Every women being with child who is intent to procure her own miscarriage and shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with a like intent, and whomsoever with intent to procure the miscarriage of any woman, whether she be or not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or any other means whatsoever with a like intent, shall be guilty of a felony, and being convicted thereof shall be liable at the discretion of the Court to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term not exceeding two years with or without hard labour and with or without solitary confinement.
The Minister's mild, practically innocuous section looks very strange side by side with the enactment already there, which is binding and I would imagine being held in terrorem. I think the last time it was used was in the 1950s when the case ended up with a life sentence in Dundrum or a sentence of penal servitude.
To use his own phrase, if he is bona fide interested in the proposition that abortion shall not be carried out, he should take that section of the 1861 Act and introduce it in his own Bill, if what he wants to do is to frighten people from carrying out abortions. Section 10 looks silly side by side with that section of the 1861 Act. I share Deputy Boland's belief that this was put in in support of the hostile and inaccurate propaganda—I suppose all propaganda is inaccurate in some way but this is deliberately inaccurate—designed to create the impression that once we follow family planning to be accepted here, particularly the use of artificial contraceptive, then we would be heading on the high road to legal abortion, euthanasia and all the other dreadful threats made over the years.
I am not in total agreement with all the points made by Deputy Browne on this section. My main disappointment in relation to the section is that no attempt was made to define abortifacients. Section 7 of the 1974 Bill stated:
The Minister may appoint a Committee to advise him on whether or not a particular appliance, instrument, drug, preparation or thing, or an applicance, instrument, drug, preparation or thing of a particular class, is an abortifacient (whether or not the applicance, instrument, drug, preparation or thing is also a contraceptive).
(2) The Committee shall consist of not more than five persons and shall include persons with medical qualifications.
(3) A licence under section 2, 3 or 4 shall not be granted in respect of a contraceptive which in the opinion of the Committee is also an abortifacient.
Apart from all the other difficulties we have dealt with in relation to the situation doctors and pharmacists will find themselves in when endeavouring to implement this measure they will have the continuing problem of whether or not items which they prescribe as contraceptives may also be described as abortifacients in their effect. Consequently, that places the doctor in the invidious position of having to define for himself whether or not a contraceptive is an abortifacient and whether, if he prescribes it, he is unwittingly putting himself outside the law.
Apart from the other unacceptable requirements the Minister is endeavouring to place upon doctors in this legislation, I do not believe it is fair to expect a doctor, without any guidance from the Legislature to establish what is or is not an abortifacient. There has been a continuing debate over the years as to the abortifacient effect of some artificial contraceptives and there are varying schools of thought in relation to this matter. The Minister may make the argument that because there is varying opinion on this matter it is impossible for him to provide a definition of what is or is not an abortifacient but whatever his difficulties might be they are nothing in comparison with the difficulties which thousands of medical practitioners and pharmacists will find themselves in when they see, for instance, that the sale, importation to the State, manufacture, advertising or display of abortifacients are not authorised by the Bill. It is possible that they are being placed outside the law in the prescribing, importing or selling of items which might subsequently be found by the courts or otherwise to be abortifacients.
Had the Minister used the same device that was used in 1974 to deal with this matter, the appointment of a committee to issue guidelines or definitions as to what was or was not an abortifacient, he would have improved this legislation immeasurably. Some Members went into detail on this matter on Second Stage but, in spite of that, the Minister has not seen fit to enter any amendment to meet that case. I would have thought that the arguments made in relation to this might have been acceptable to the Minister and his colleagues. I was disappointed that the Minister did not make any effort to assist doctors and chemists who will be involved in the morass the passage of this legislation will create in relation to what is or is not an abortifacient.
I tabled an amendment to this section but, unfortunately, I was detained in a traffic jam with the result that I was unable to move it.
The Chair does not have power to take an amendment once a discussion has commenced on the section. I regret that, but that has been the ruling down through the years.
I may have an opportunity of tabling a similar amendment on Report Stage.
That is possible but the Chair cannot anticipate decisions on Report Stage.
I will make an attempt to bring about a discussion on a similar amendment on Report Stage. I viewed this section as one of the most important in the Bill. It is noteworthy that those responsible for the drafting of the section titled it "saver in relation to abortion". Those responsible might easily have dropped the words "saver in relation to" and titled the section "abortion" because that is what the section deals with. I am surprised and astonished that the Minister has brought in such an evilly disposed and ill-conceived piece of legislation, with particular reference to section 10. I am also surprised at the lack of examination of all the implications involved by those responsible for the drafting of the section. The section states that nothing in the Act shall be construed as authorising the procuring of abortion and it is extraordinary that in 1979 we take such a provision so casually without serious thought.
It is extraordinary that in a democratic Parliament dealing with such a section which in proper terms means the procuring of murder, the participation in murder and killing, there are only four Members present. It is a poor commentary on the interest shown by Members of this House and on the outlook of the nation, that a section of a Bill which deals with the taking of human life can pass so casually through the House. Everyone knows that there are many countries—including our nearest neighbour, Britain—in which abortion has been legalised but this does not in any way, justify these numerous murders taking place and it must have a disturbing effect on the mind and conscience of everyone connected with it. It has been established, and can easily be established, despite the opinions of learned medical authorities such as Deputy Browne or any other medical subscriber to this Bill, that most of the contraceptives which can be prescribed will bring about, and are bringing about, abortion.
There are only four Deputies in the House and this very section that we are dealing with so casually is an attack on human life. It is a cover-up. The title of the Bill is a saver in relation to abortion and a saver in relation to killing. We must bear in mind that human life comes from God alone and He alone can take away human life. We have read of the deplorable and disastrous experiences of people in hospitals engaged in the administration of abortion. They can see the baby—which can rightly be described as a baby, with all its features—left on a tray, gasping for life, moving and kicking, and while it is resting on that tray it must be murdered. How can people justify such an action—the murder of a baby, physically able to cry, to turn, able to move its gentle and feeble muscles? Almighty God is the giver of human life and no Act of Parliament, no political party, no Minister of a Government, no authority in existence, has the right to take away that life, or interfere with it.
I am disturbed that the section is titled a saver in relation to abortion. No matter what safeguards we include someone will drive a coach and four through this legislation. As an example, Finance Bills were tightened up, secured, fastened down, but there always was a group who could drive a coach and four through them. The very fact that abortion and murder are mentioned in a section of this Bill will give new energies to the motivation of intellectuals who have been pressing for this legislation. These people will next be pressing for abortion. They will be examining, with all their modern intelligence and the best possible materialistic and pagan medical opinion that can be gathered, in what way they get around this legislation, like the tax dodgers under the Finance Bill.
There is a lobby here, particularly in relation to section 10 of this Bill, that is not satisfied with seeing a Bill of this kind being passed. They will look upon a Bill containing this section as giving them a right, something to go on, since section 10 titles itself a saver in relation to abortion. They will organise pressure groups so that, at a later stage, a coach and four can be driven through paragraphs (a), (b) and (c) of section 10. A few years ago, it was looked upon as improper and wrong to advocate family planning, other than the natural method, by advertising and display of a variety of notices in papers, journals and books. No matter how the Minister may think he is tightening section 10 it will not prevent the movers and those behind the scenes who are seeking to destroy human life and to legalise abortion from advertising. The section contains only feeble wording in relation to the sale, importation, manufacture, advertising or display of abortifacients. The wording of the section is too loose. Who is going to decide what contraceptive is an abortifacient? People will be able to drive a coach and four through section 10 and other sections of this Bill.
The Minister has told us, and I accept his word, that he has discussed this legislation with all interests. Section 10 must have been the subject of major discussion. I doubt if anyone could have gone to the Minister to discuss family planning legislation without dealing with the question of abortion, the safeguards against abortion and what steps must be taken to discourage by every means in our power the taking of human life. The Minister must have had many discussions in relation to this matter. I should like to ask the Minister if he has given very considerable thought when drafting this legislation to the teachings of the Catholic Church in relation to abortion, or was he and those responsible in his Department for materialistic and pagan legislation such as this prepared to throw aside the teachings of Christ, prepared to throw aside the teachings of the Catholic Church and to seek so-called truth elsewhere?
Life commences at conception. What greater authority could the Minister have been advised by other than the teachings of the Catholic Church in relation to the taking of human life? In the world today there are people who take their own meaning from what is written with authority. Ten years ago Humanae Vitae was issued and it was one of the most important documents in the past 2,000 years which set out a code of conduct and guidance. It dealt clearly with human life, the protection and value of human life and it referred to the way governments and legislators were to regard human life in their legislation. I do not know to what extent the officers in the Department of Health or in any other Department involved in legislation of this kind took Humanae Vitae as a guideline——
The Minister is responsible for the legislation before the House, not the officers of his Department.
I accept that. I am asking the Minister in what way he considered the teachings of the Catholic Church on human life and the way in which abortion, the killing of life, has been condemned. I wish to quote from L'Osservatore Romano of 14 September 1978 a paragraph from an article by Most Rev. Dr. William Gordon Wheeler, Bishop of Leeds, Humanae Vitae, 1968-1978. Bishop Wheeler stated:
I would reply that politics, on their own, have no answer.
He was dealing with the taking of human life. He continued:
Certainly they could help by acknowledging the dire consequences of this destruction and frustration of life. They could indeed set about the revocation of all legislation that destroys human life and dignity. They could also initiate positive enactments to extol the real meaning of life in time and eternity. In addition, they will have to acknowledge, sooner or later, that there are realms in the governance of man which are beyond their competence. They should be listening anew to the voice of the Creator. Neither opinion polls nor majority votes are on a par with the truth that comes from God alone.
They were the views of a very eminent churchman dealing with the dignity of human life and the respect there should be for human life. The State has a right to acknowledge completely the teachings of the Catholic Church as laid down very clearly in Humanae Vitae which sets out the guidelines not alone for all Catholics but for all Christian people who seek the truth.
Since the Minister has completely rejected the teachings of the Catholic Church in relation to the dignity and respect for human life in this section, where did he look for advice and guidance? On page 4 of L'Osservatore Romano Bishop Wheeler said:
The right to life is at a discount. More human life was destroyed in one year of Abortion in U.S.A. than in the whole of the Vietnam War.
... It can never be right for her to declare lawful what is in fact unlawful, because this, by its very nature, is always opposed to the true good of man.
He referred to statesmen and men in public life with reference to contraception and abortion. This paragraph clearly relates to this section of the Bill:
If only people would read the whole of Humanae Vitae, which they rarely do, they would realise that it is a document, not only of great appreciation of love in marriage and the indespensable role of the Christian family, but also one of great compassion. These things were overlooked ten years ago when the outcry centred on the few lines dealing explicitly with contraception.
He quotes the words of Christ himself when he says "I have come that they may have life and have it more abundantly.
The Deputy appears to be making a Second Reading speech. He should get back to section 10.
This section deals with a serious problem of which the Minister is afraid. Otherwise the saver in relation to abortion would not be mentioned here. Direct abortion is never, under any circumstances, allowable. Direct abortion like any other form of abortion can be described as taking human life and, in plain language, can be described as murder. Since the Minister is responsible for this section, I would like to know if he consulted the pronouncements on this subject, particularly that made by the late Pope Pius XII, who said that every human being, even a child in its mother's womb, has the right to life directly from God, not from parents or from any human society or authority. No human authority, no medical, social, economic or moral indication can produce a judicial title to the direct deliberate disposal of an innocent human life. Whether it be a saver in relation to abortion or otherwise, these are statements of truth which those who advocate abortion can never disprove.
If we are to have savers in relation to abortion those provided in section 10 are very poor and do not mean anything. There is a prohibition under section 58 of the Offences Against the Persons Act, 1861 and a few feeble lines about the sale, importation into the State, manufacture, advertising or display of abortifacients. There is also the question of consultation. There is nothing to prevent anyone having consultations about abortions.
Men in public life must shoulder their share of the responsibility. Instead of providing a welcome for a human life, the facilities which would enable that human life to develop, expand and extend, and which should be available——
The Deputy is getting away from the section. I would ask the Deputy to deal with the section. I have given him plenty of latitude. The section deals with prohibiting abortions and we cannot have a full scale debate on the whole scene of abortion. I would ask Deputy Flanagan to get down to the section.
I went into it very fully because the section deals with and is entitled a saver in relation to abortion. I submit that what is being described as a saver in relation to abortion means nothing whatever.
The Chair accepts fully the seriousness of everything the Deputy is saying but he is really making Second Stage speeches. He has spent half-an-hour on it and I would ask him to get down to the section before the House.
Not alone does the Minister owe the House more information but he owes the nation in general greater safeguards than are provided in section 10. The Minister is aware of the position in other countries in regard to this matter. He must also be aware of the effect, for example, in Sweden where abortion has been legalised and has resulted in psychiatric disturbances in women who have procured abortions. There is nothing in this section which conveys the seriousness of this matter. The savers cannot be regarded as such. That is why I feel the Minister is regarding abortion as an everyday occurrence and something that is not worthy of serious note instead of regarding it as the most serious and the gravest possible crime that one could be guilty of, the carrying out of murder, the taking of human life. For that reason I thought that the amendment I had suggested earlier would answer the case and I hope, with the assistance of the Minister and the Chair, that it may be possible for me to get this in on Report Stage, as I will certainly try to do. It is the most important section in the Bill. Abortion is wrong; it is dangerous; it is murder; it is an attack on human life; it is an attack on everything we stand for. For that reason I feel that this legislation is not alone wrong but is evilly disposed; it is the most evilly disposed section in the whole Bill.
At the outset I referred to the marginal note at the side of the section to which Deputy Flanagan has referred. I want to assure the House—though my assurance may not be necessary because the majority of Deputies experienced in passing legislation know it—that these notes are really of no statutory significance or legislative import; they are more in the nature of aids to the person perusing the legislation. Primarily they are for the purpose of identification so that a person flicking through the legislation will be able readily to identify the section or part of the legislation he is seeking. I merely mention that in passing. They are of no legislative significance of any sort.
The next thing I want to say is that Deputy Flanagan is not correct when he says that the approach to this section is casual. I want to assure the House again that this section was the subject of long, careful and earnest consideration by me and by my advisers because it deals with something of fundamental importance, something which many people in our community feel very strongly about. It is a subject about which there is, perhaps more than anything else in modern life here, an almost overwhelming consensus.
The first question I had to consider was whether or not it was necessary to put in a section of this sort at all. There is already a statutory provision against abortion in the Offences Against the Persons Act, 1861. It is a provision which has stood the test of time. The first question one has to address oneself to is whether or not it is desirable to leave that section stand without doing anything further because it has stood the test of time.
I am certain that there is an overwhelming opinion in this country against abortion. Whatever divided views there may be about contraception and family planning and about the use of artificial contraceptives there is an almost overwhelming universal agreement that abortion is wrong and should be statutorily prohibited. I do not think any Deputy in the House would quarrel with that view. Therefore, taking that strong universal opinion into account it seemed to me that it was desirable to restate the law, if possible, in more positive terms than hitherto on the prohibition of abortion. Hence we have section 10. The section is constructed very carefully. It is framed to ensure that the original section in the Act of 1861, which has stood the test of time, would not be taken from in any way and also that in so far as further provisions were necessary, they would be made. I suggest that, first, the section is necessary and, secondly, that in the manner in which it is put forward it meets the purposes I have outlined. The wishes of the majority of the people would be, I think, that the statutory prohibition of abortion should continue and also that anything which in effect is abortifacient would be prohibited.
The only real argument about the section is whether abortifacients should be defined and in this context I take note of Deputy Boland's suggestion that the legislation should provide for the establishment of a committee to advise the Minister on whether any contraceptive device was an abortifacient. I thought about that, too, but what we are doing here is in keeping with the best principles of legislation. There is always a temptation in drafting legislation to say too much, to try to nail everything down, but very often one finds that the further one goes in trying to tie up every loose end the worse the situation becomes. Therefore, the best type of legislation is the simple and straightforward kind. I suppose that the ultimate in that respect are the Ten Commandments which take the form of "thou shalt" or "thou shalt not".
I consider the section as it is framed to be the right way to tackle the problem. We state simply that abortifacients are prohibited legally. If we begin to spell out the type of abortifacients we have in mind we are, ipso facto, including all those that we do not mention but that is a type of problem that presents itself in practically every piece of legislation one prepares. It is fairly clearly established by now that, unless it is absolutely necessary to do otherwise, the best procedure in legislation is to have simple and straightforward statements of what one has in mind. That is the process we have adopted on this occasion.
The difficulty is that medical knowledge in regard to what is or what is not abortifacient is changing and evolving. In regard to most contraceptive devices, the majority of medical people would reserve their opinion. They would not be prepared to state categorically whether any type of artificial contraceptive is abortifacient. In this regard I quote with approval what Deputy O'Connell had to say during the course of the debate, as reported at column 266 of the Official Report for May 9:
I do not see any need to include a definition of abortifacient in this Bill. In the present state of our medical knowledge, we are not in a position to say what are and what are not abortifacients. There is only medical conjecture about how these drugs act.
I agree with that view. Therefore, the right approach seems to be that the legislation would state simply the prohibition against abortifacients and then to leave the decision in any case to medical evidence before the courts, if necessary, as to whether the device in question is an abortifacient.
In that connection, too, there is a development which may go some way to meeting Deputy Boland's concern, that is, that the Irish Medical Association at their recent annual general meeting set up a special committee to study the question and the advice of that committee will be available to me as well as to others in relation to the implementation of the legislation. But given the state of medical knowledge and opinion now the proper way to frame this section is to indicate that abortifacients are prohibited legally and then to decide in any particular case that may arise whether the object in question is an abortifacient.
It is not my intention to follow the wide-ranging path taken by Deputy Flanagan. It is not necessary for me to do that and neither is it necessary for him to persuade anybody here that the legislation should categorically prohibit abortion. That is common ground on the part of practically every Deputy and among the overwhelming majority of the population, ordinary men and women. The only point I think I should take up with the Deputy is the question of whether the section is adequate. The general thrust of his remarks was to the effect that the section is inadequate and will not achieve the purpose which both he and I and most other Deputies have in mind. I suggest that the section achieves what we set out to achieve and I am reinforced in that view by the fact that the amendments which Deputy Flanagan sought to have made would not add anything to the section as framed. I have studied them very carefully. I have taken advice about them and it seems to me they would not add anything to the strength of the section.
I believe the section is as watertight and as categoric as it can be. I am not saying that by way of defeating Deputy Flanagan's amendments because they are not before us. I am merely saying that to illustrate that the section is adequate. If Deputy Flanagan, with all the intensity he feels about this subject, could not devise amendments which in my view would add to the strength of the section, then the section must be adequate as it stands. I am quite satisfied that, if one goes into the wording of the section and the amendments, one will find that there is nothing in the amendments which would strengthen the section, make it more secure or adequate in any way.
My position on this section is very clear-cut and very definite. I believe I am interpreting the universal wish of the people in continuing the statutory prohibition against abortion and abortifacients. I believe this action does that adequately. I cannot envisage anything further that I need do in this particular area. I want to avail of this opportunity to mention my approval—I know most Deputies would agree with me—of the efforts of those organisations which are endeavouring to deal with the tragedy of abortion in the community and to assure them of any support they may need in their work. That is perhaps outside the scope of the discussion on this section, Sir, and if I were to go into that area you might bring me back to the section.
I appreciate what the Minister has said. While I disagree with Deputy Browne in relation to what he has said about the section I appreciate the necessity for inserting this section in the legislation and that it should be clarified that the Bill is not authorising or providing for abortion in any way. The necessity for inserting section 10 is because of the confusion as to what is or is not an abortifacient. I am particularly upset that the Minister sees the section improved because the Irish Medical Association have set up a committee to advise the medical profession about what they believe to be abortifacient in its effect. That confirms the point of view which my party hold, that there is a very grey area about what is an abortifacient. A large responsible element representing many, but not all, of the medical profession in the country, the Irish Medical Association, have now publicly recognised that and said that they are setting up a committee to advise their members.
Should the committee not have been written into the Bill so that the Minister might be advised in a formal statutory way and so that doctors when prescribing and chemists when supplying would know clearly where they stand? On other occasions Ministers are at pains to point out that anything which is not written into the statutes does not have the full weight and power of the law. I accept the very good work which the committee of the Irish Medical Association will do in this area. We are now being advised to accept that the work of that committee will have the effect of providing the guidelines necessary for the unfortunate professional people who are invited to try to implement this measure. Would it not have copper-fastened the position of the medical profession so that they would know that a committee enshrined in the legislation under section 10 had advised the Minister that devices (a), (b) and (c) were in their view abortifacient and that the Minister by the way section 10 is worded would automatically make it clear that the prescribing of those devices for contraceptive purposes would be illegal because it was the view of the committee set up under the Bill that they were abortifacient in their effect? That will not be the situation now.
While any recommendation which the IMA committee will make to their members will be helpful in assisting them to come to a decision, it will not be binding on them. It will not be binding either on any other person who is in dispute about the abortifacient effect of some of those devices. The Minister should realise that there is likely to be a situation where some people who are totally opposed to the prescribing of artificial contraceptives in any shape or form and who feel very strongly that some of the artificial contraceptives are abortifacients in their effect will afterwards exhort the Director of Public Prosecutions to take prosecutions against doctors because they have prescribed things which those persons or organisations will put up evidence to show are abortifacient in their effect. This will leave everybody involved in this field in a very difficult situation.
Surely the way to clarify that would be to have an expert committee enshrined in the legislation and that their decisions as to what is or is not abortifacient in its effect would be the guidelines which could be implemented by doctors? That would have been a far preferable situation from the point of view of the Irish Medical Association. I invite the Minister, between now and Report Stage of the Bill, to consider the points of view I have put forward and which are very much like the points of view that would presumably have been put forward by Deputy Flanagan in amendment No. 28a, which would to a large extent have the same effect as the viewpoints I have put forward. I ask the Minister to have a serious discussion about this with the medical interests with whom he has had discussions in the preparation of the initial Bill as to whether or not it might be preferable if such an amendment were written into the section.
I have a certain sympathy with the Minister because he is caught between two fires. I do not care to discuss the merits or otherwise of abortion because I believe it would require a separate Bill put forward to defend it. I was glad that the Irish Medical Association established a committee to clear their own minds on this issue of the abortifacient nature of some of the drugs and appliances that are being used for their own use and so on. But there is this danger, if we write this into the Bill. The Irish Medical Association are notoriously anti—well not notoriously anti, that would be unfair—but there is this fairly powerful influential group of people within the Irish Medical Association. This is true of all medical associations. I think I said earlier in the debate that doctors, and particularly gynaecologists, were particularly opposed to the extension of contraception, for obvious reasons—conscientious reasons I know, at times out obviously there is a large vested interest involved also. But it is quite obvious that any committee set up by the Minister to advise him on this, as was suggested by Deputy Boland, must contain a number of the most authoritative and influential members of the medical profession, particularly the gynaecologists.
If I might read from a newspaper report of a speech by Dr. Arthur Barry, a distinguished gynaecologist, on this subject it might make my point for me better:
Artificial contraceptives were anti-life and inevitably led to the propagation of abortion clinics and abortion on demand, a gynaecologist claimed yesterday.... Dr. Barry said the two methods could not be taught by the same people, or even housed in the same building since one method was for life and the other anti-life.
Then talking about religious instruction to young people he added:
... that those giving religious instruction to young people should ensure their pupils knew contraception was a grave sin. Dr. Barry stressed that artificial contraception led to abortion and the women who embark on this evil course, and the doctors and nurses who carry out the murder, are just as blood-soaked as the soldiers sent down by Herod from the Fortress of Antonia in Jerusalem to slay the innocents of Bethlehem.
Fighting words. I am just attempting to establish that the Minister might find himself the prisoner of these very deeply and fervently held views. But, at the same time, they are views which are really unsustainable with regard to the majority of methods now in use and particularly the one conditionally referred to by me as the most satisfactory, the sterilisation, and then the condom, spermicides. But in between there is no doubt that there is a difference of opinion. The Minister might then find himself with some of the pills on which I understand there is the greatest difference of opinion, as Deputy Dr. O'Connell said, and not absolute certainty about some of them. I am afraid this is a question on which the Minister must take a stand—it is one of the responsibilities of being a Minister in a situation like that— between the arguments he hears on both sides here, and three sides in this case. He must eventually arbitrate between us all and make his decision. His decision is to try to introduce an efficient family planning service which would be safe, effective, affording multiple choice, accepting the different kinds of ladies who would be requiring it.
The Minister cannot pass that decision on to anybody else, unless he was to broaden the committee, have some medical people, and then have alternative opinions. He might then save himself being put into a very dangerous situation in which his Bill is completely negatived by a recommendation of this body on, say, the pill, by the doctor who is opposed to these things generally but who said that the pill is the safest of all of these. The Minister might find himself under this section, or in accordance with the committee advising him, depriving the majority of people who wanted to use the safest of methods—or the easiest or most acceptable method, I suppose, as things are at present—of the pill by a decision of this committee. Therefore, he would have to be very cautious before he decided this.
I shall not pursue the discussion on abortion at all because it is much too complex and emotive; there are too many great issues involved in it. I have the greatest sympathy for Deputy Flanagan in his very powerful indictment of it but I do not think it is as simple as he makes it appear. For instance, from my recollection of my training years, many years ago now, I understand that the Catholic Church accepts that in certain very dire circumstances it is permissible to carry out an abortion. I understand that that is in circumstances where the life of the mother is at stake. Therefore, it is not a simple subject.
And that all steps be taken to save the lives of child and mother. That proviso is there.
Of course, but it is not a black and white subject at all. Secondly, I would make this point to him: that what is now called natural family planning was at one stage considered an anathema by the Catholic Church, that they have come round to the position at present of accepting it as the acceptable form for Catholics. It is a good thing they have done that. But there is no reason why people other than Catholics, that is, Presbyterians, Church of Ireland, Jewish people, atheists, agnostics and all these other minority religions in our society—elsewhere it is different—should have to wait for the Catholic Church to make its mind up in order to be able to carry out a particular procedure. In a final reference to his comment that it can never be right for the church to declare lawful that which is in itself unlawful, I remember once taking up this point with a very distinguished theologian from Maynooth, at present in the United States, at a public meeting when I put this point to him, not arising out of the natural and artificial but on another issue: how could it be that at a certain time in the life of society, in the life of the Catholic Church, something which would be considered permissible, acceptable, at another period in its life was considered to be sinful? His answer to me—I suppose a very responsible, mature, sophisticated answer, however one likes to describe it—was that this all arose from the factor of the changing world, in the changing world. Naturally for most of us politicians who would like to be able to accept that kind of political philosophy, at the same time it is, I suppose, rational, understandable, something that has got to be accepted. But it is also a fact which has allowed us to make the progress we have made even to getting to this stage of discussing family planning today.
I shall be very brief. In an endeavour to enlighten the House and indeed Deputy Browne, no theologian, modern or ancient, can change the fact that the Fifth Commandment of God is there: fifth, thou shalt not kill. No theologian, past, present or future, can alter that. With reference to what the Minister has said—and I shall not repeat one syllable of what I have already said on this section—this section is like a mouth without teeth trying to chew stones. Would the Minister agree that this section would be stronger if it included a few lines pinning the complete responsibility on the manufacturer, so that in the event of a contraceptive having been proved to have brought about an abortion the manufacturer would be responsible as were the manufacturers of the thalidomide drug, against whom great, justifiable claims were made. If a person accepts on a medical prescription that a contraceptive will not bring about an abortion she should be able to claim against the manufacturer if an abortion results from using the contraceptive. There seems to be a difference of opinion within the medical profession as to what will or will not cause an abortion. The Minister should pin the responsibility on the manufacturer. If the responsibility were on the licensed manufacturer it would not rest with varied, undecided medical opinion. There would be nothing wrong with putting firm teeth into section 10 in this manner.
Is section 10 agreed?
Can I add a dissenting note to this section?
Question put and agreed to.
SECTION 11.
I move amendment No. 29:
In page 7, line 5, after "contraceptives" to add "provided that in any legal proceedings the burden of proof of conscientious objection will rest on the person claiming to rely on it".
I am concerned with the conscientious objection clause. I accept that people have a right to object on a point of principle but it is not quite as simple as that. Conscientious objections have had a distinguished record in men's history from the beginning of time. We are all well aware of the marvellously courageous attitude of the pacifists in times of war, and their refusal to carry out something which is contrary to their conscience. Nobody would object to that.
This Bill will be passed as a decision of the Government and will be binding on all our citizens. One cannot lightly feel that one can resist the law unless one makes a case which can be justified in court. In relation to the decision by Deputy Gibbons, his conscientious objection there must be a matter of considerable embarrassment to the Minister for Health. His stand seems to be completely indefensible because whatever about the right of the private individual to dissent and to establish his right in a court of law, I cannot see how a Government member can dissent from his Cabinet responsibility as laid down in the Constitution. The Cabinet as a whole are collectively responsible to Parliament for legislation, and the Taoiseach has no right or power to minimise that responsibility because in so doing he ignores the constitutional requirement that
The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.
The Minister is probably right to give certain powers of dissent, but I want to ensure that a person who seeks to establish a point in court will be responsible for any of the expenses incurred in taking such a case to court.
Would the Minister agree that while we all accept that a person could have a conscientious objection on an issue of this kind if he wants to establish it then, as most conscientious objectors throughout history had to do, they must suffer to some extent at least in establishing the genuine nature of their conscientious objection so that people will not use the conscientious objection clause in a frivolous way to get out of doing work that somebody else will have to do. They can prove their conscientious objection if they take an action in court and are responsible for paying for it.
The Minister ought to feel embarrassed about the conscientious objection clause because in their manifesto and in their conscientious objections, Fianna Fáil promised that——
The Chair must point out that the conscientious objections we are dealing with will not arise until the Bill has been enacted. We are dealing with Deputy Browne's amendment.
We had a pleasant non-political morning until now.
The Minister likes pleasant non-political mornings, but it is not our job to provide them for him. It is our job to remind the House of the duplicity of Fianna Fáil——
We are dealing with Deputy Browne's amendment and nothing else.
First of all there is not a definition of "conscientious objection". That is the point I was trying to make, and Deputy Browne alluded to it. What is a conscientious objection? Is it the consistency that has been shown by Deputy Oliver Flanagan and others on this side, or is it political expediency? The Minister has a neck to speak about conscientious objection when his party did not see any need for it during the debate on the Bill before the House while the Coalition were in Government. If anything highlights Fianna Fáil's duplicity in this regard, this section does.
There are two points about this amendment. First of all, I do not think it can be translated into practical terms. The amendment speaks about legal proceedings. It is not anticipated there will be legal proceedings. The section as framed states that a person can refuse to participate in the implementation of the legislation on conscientious grounds. I cannot visualise a situation in which there would be legal proceedings.
A medical officer in a health board, for instance.
I suppose that on conscientious grounds a number of them will refuse to participate, but that would not be a ground for legal proceedings. Therefore, on practical grounds the amendment does not stand up, is not necessary and is not called for. The second point is in relation to Deputy Browne's thinking on this matter, which astonishes me. Of all Deputies, I would have thought the one to stand out for the rights of a conscientious objector in any situation would be Deputy Browne. His suggestion that a conscientious objector has to prove the grounds of his objection would surely be a negation of the right conscientiously to object. I would have thought that an objection based on conscience is something entirely for the individual to decide. I do not think anybody should go inside another person's conscience, and how then can a person establish the right of an individual to a conscientious objection? I would have thought that any interference with the right of an individual conscientiously to object to something would be anathema to Deputy Browne. I have to reject the amendment because of its impracticality.
On the question of conscientious objection, it has been traditional, and obviously in the last war, that people do not want to go to war though they would be under orders to go to war at a time of general mobilisation. In the last war, if they claimed they had conscientious objection to violence, to killing people, obviously they had to go before boards to assess the cases they made, simply to establish that it was not a matter of claiming privilege——
But the Deputy does not approve of having to go before a board.
If a person disapproved of something and if somebody else had to do it because he did not do it, he must establish that his reasons for not doing it were not simply from selfishness or because he did not want to expose himself to danger, that it would be better if somebody else did it. That is not conscientious objection but self-interest. If your concern was that you did not want to kill somebody in war time, then you would have to establish you are not a person who wanted somebody else to do your fighting for you, like so many of our armchair militants in relation to Northern Ireland, but that you were a person who felt genuinely that it was repugnant to you as a human being to take up arms against a fellow human being. Having established that, such a person would then go off and do some rather dreadful unpleasant work. Such a person would have to accept that he must prove he was prepared to do some menial work in order to show the sincerity of his objection.
Progress reported; Committee to sit again.
Business suspended at 1.30 p.m. and resumed at 2.30 p.m.