This is the final stage of a protracted and rather fruitless discussion on this unhappy Bill. I would emphasise once again that my party are opposed to the Bill being enacted. Our opposition is on the basis first, that the Bill is unworkable, that it is unenforceable and, consequently, unacceptable. For that reason we did not consider ourselves obliged even to consider the question of endeavouring to amend what was indefensible. On Second Stage I indicated why we considered the Bill to be unworkable.
We oppose the Bill also because it contravenes the ruling of the Supreme Court in the McGee judgment. As it stands, by virtue of the three very minor amendments introduced by the Minister on Committee Stage, the Bill is in a similar position to the Bill as initiated, that is, it strikes at the root of the McGee judgment which was that a husband and wife are entitled to order their sexual affairs in private without let or hindrance from the State or from any person.
It seems to us that the introduction of a doctor in a non-medical capacity to the decision-making process of a husband and wife in this regard renders the Bill, on the basis of the Supreme Court judgment, to be as much outside the Constitution as was found to be the provision of section 17 (3) of the 1975 Act. Therefore, it seems to us that this Bill, even with its faulty premise, will not stand either the test of time or the test of the courts.
It appears to be an extraordinary situation that after the lengthy discussions the Minister has told us so often he had with so many different bodies, he should seek to introduce a Bill that has at its kernel the transfer of the decision-making process from the Minister who is responsible to the surgeries of doctors throughout the country and when the Bill has as its kernel also the making of quasi-judicial decisions in non-medical matters. This would appear to interfere totally with the clear decision of the Supreme Court that husbands and wives could between themselves in private decide how to regulate their families. On that occasion Mr. Justice Walsh said that the right of a married couple to decide how many children, if any, they will have is a matter outside the reach of positive law where the means employed to implement any such decision do not impinge on the common good or endanger human life. The court made the point also that the sexual life of a husband and wife is of necessity and by its nature an area of particular privacy, that if a husband and wife decide by means of artificial contraceptives to limit their families or to avoid having children, that is a matter particularly within the joint decision of both and one into which the State cannot intrude unless such intrusion can be justified by the exigencies of the common good. I do not believe that it can be argued, nor has it been argued by the Minister during the debate, that it is in the interest of the common good that a doctor should be asked to make a decision as to whether a person seeking contraceptives intends them for use for bona fide family planning purposes; nor can it be argued that the doctor having issued the prescription or authorisation, that prescription or authorisation would then be conclusively taken to have been issued bona fide for family planning purposes for the purposes of this Act. This places the doctor in a quasi-judicial role, having first placed him in the role of being the moral arbiter of the decision which the court specifically has said was a decision which should be taken by husband and wife. It would appear that the Bill strikes at the kernel of the court's ruling.
Another point on which we did not speak as extensively on Committee Stage as we might have is that the court in that ruling specifically said that the decision was a joint decision of the husband and wife. In this Bill, the decision will be a joint decision of the doctor, acting in a non-medical capacity and whichever of the couple visits him. Even taking it, as the Minister was inclined to do, on the restricted basis of the court's ruling in relation to married couples as such and the relationship between husband and wife and their right to make their decisions in private about their sexual affairs, the Bill stands contrary to that decision because now the decision is to be made by a doctor and either the husband or the wife. On that basis, or on the basis that people might feel that this Bill was too liberal, they could challenge its content on the basis that the husband-and-wife common decision was being removed and assigned to the doctor and one or other of them. On the other basis on which the court also appeared to indicate that persons have the right to order their own sexual affairs in private as long as they do not interfere with the common good, it appears that the Bill strikes at the heart of that decision and consequently stands as equally outside the Constitution as the 1935 Criminal Law (Amendment) Act which it sought to replace.
The third reason why we are not prepared to agree to the passage of this Bill is because of the very invidious position in which it places our doctors and, to a lesser extent, our chemists. Doctors will now be asked to make decisions about people's sexual affairs and in relation to matters of contraception in which doctors have no special training. The Bill itself recognises that in a number of decisions which a doctor makes those decisions will not be made on medical grounds. In section 4 (1) (b) (ii) the Bill clearly states:
the person to whom the contraceptives are sold is named in a prescription or authorisation in writing for the contraceptives of a registered medical practitioner and is a person who, in the opinion of the practitioner formed at the time of the giving of the prescription or authorisation, sought the contraceptives for the purpose, bona fide, of family planning or for adequate medical reasons....
The persons who framed this Bill recognised that in certain instances the prescribing bona fide for family planning purposes was a different thing from prescribing bona fide for adequate medical reasons. It therefore cannot even be argued that the doctor has a special medical knowledge. It is well known that there are very few doctors with training in the many different aspects of family planning which we have gone into in much detail in the course of the discussion on this Bill. For that reason the doctor is being placed in an invidious position in relation to his patients, in relation to his conscience and in relation to how he conducts his medical practice. We do not believe it is fair or equitable that the doctor should be placed in that position. We also, do not believe, because of the failure either to define abortifacients or to set up any statutory body which would give a definition and a guidance as to what abortifacients are, that it is fair to ask doctors to prescribe or a chemist to dispense items which might be found, or could be challenged in the courts to be, abortifacient in their effect and consequently would place either the doctor or the pharmacist outside the law and, if a test case were brought, might hold them up to public odium and ridicule. I do not believe that on any basis it can be argued that this is a fair manner of treating these two noble professions.
The Minister and the House are aware that twice since 1979 the Irish Medical Association were asked to make a decision endorsing the provisions of this Bill and recommending to their members that they should participate in its administration. On each occasion, and especially on the second occasion, despite the considerable pressures brought upon them the Irish Medical Association refused to agree to recommend to their members that they participate in the exercising of the doctor's function in a non-medical capacity, as will be the case when this Bill becomes law, as it apparently will by weight of Government numbers.
For all the reasons I outlined on Second Stage and again on Committee Stage, we are not prepared to agree to this Bill. We felt it necessary, in particular, to fight against certain sections of it. We voted against it on Second Stage. We shall vote against it on completion of discussions at this Stage. We believe that it is possibly the worst attempt yet made to mend the hand of the Oireachtas in relation to this matter. On several occasions I have made a suggestion that the vexed question—and everyone must realise that it is a vexed question on which there are many differing opinions genuinely held—be discussed at an all-party Select Committee of the House or the Joint Houses of the Oireachtas. That suggestion has been rejected. I have said, in relation to this Bill and to other matters coming before the House, that if this House continues to bury its head in the sand and to allow the decisions of tens of thousands of decent Irish men and women to pass it by, if this House continues to endeavour to believe that it still lives in the 1930s, then, with all the pressures of unemployment, social conditions, bad housing, the pressures of modern living, democracy is becoming all the poorer because this House has not mended its hand in the way it approaches legislation, in the way it approaches the issues of the day, in the way it approaches the need to change legislation.
I am afraid that many young people of childbearing age have taken the decision in relation to this matter and do not believe that they stand outside their religion, or at odds with their God; as long as they do not, then I do not believe they are. They will not accept, or respect, the decision of a Parliament which closes its eyes to what is happening in everyday life and the Oireachtas, the Government and democracy will lose respect. The enactment of this legislation will contribute in one more way towards bringing Dáil Éireann —and on the passage of the Bill through the Seanad, the Oireachtas in general— further into disrepute in the minds of the people and especially in the minds of young people. Unless we realise the type of population we have and the fact that decisions are being genuinely taken, and unless the Oireachtas can even belatedly at least keep up with what is actually happening outside the gates of this Parliament, then this Parliament may not still be here in two decades from now. I do not believe that this legislation will be here within two years from now, because I do not accept that the courts will look in a benign fashion upon legislation as ill-conceived as this.
