Dáil Éireann debate -
Thursday, 9 Mar 1995

Vol. 450 No. 4

Regulation of Information (Services Outside State for Termination of Pregnancies) Bill, 1995: Committee Stage.

Section 1 agreed to.

NEW SECTION.

Ms O'Donnell

I move amendment No. 1:

In page 4, before section 2, to insert the following new section:

"2.— Nothing in this Act shall render unlawful any words spoken or acts done in relation to the provision of Act information to any woman where the termination of her pregnancy would be lawful within the State."

Those members of the Progressive Democrats who supported the Bill last night did so with a view to being afforded an opportunity today to substantially amend it. The amendment to section 2 challenges the Minister and every Deputy to relate the implications of the Bill and the application of the information sections to the X case. The Minister did not refer to this on Second Stage but it would be disingenuous, dishonest and constitutionally perilous if the House did not address the X case.

At the time of the X case there was much breast-beating by Deputies who said they had not foreseen that the insertion of Article 40.3.3º in the Constitution would lead to the turmoil and controversy surrounding that case. The time since the decision in the X case has facilitated people to forget the hard facts and trauma of that case. It has allowed all the old absolutes to return and gain credence. For that reason we must recall the X case.

The X case was a hard one but it was by no means unique. It dealt with a child pregnancy and the attempts by the Supreme Court, High Court and the population to harmonise and balance the rights of the pregnant mother and the unborn child. When the Supreme Court judgment was issued there was a collective sigh of relief across the country. It was the right decision given the facts.

The issue of child pregnancy is only beginning to be addressed in this State. Given the high incidence of child abuse and indirectly flowing from that the possibility of child pregnancy, as we saw in a case which was reported recently, the issue of child pregnancy must be dealt with by the Constitution, this House and the people. There may be need for a specific provision in the Constitution to balance the rights of unborn children with the constitutional rights of born children as these are not adverted to anywhere in the Constitution.

The facts of the X case were a 14 year old rape victim, suicidal as a result, was ordered, by State injunction, not to travel to Britain to terminate her pregnancy. The court subsequently held that the injunction should be lifted to allow the child have a termination. Our State was turned into an internment camp for pregnant children. The amendment seeks to directly address the implications of the Bill, as they relate to abortion information, to circumstances where terminating a pregnancy is legal in this State.

By framing this amendment I am challenging the Minister to address the issue. It is a realistic amendment. We are involved in a constructive process of law making and in no sense should the House be used as a destructive process for scoring cheap political points. Last week, I asked the Minister if he had consulted with medical practitioners or other agencies on the implications of the X case. He gave me a detailed reply and concluded:

I have already stated publicly that I do not believe it would be productive to attempt to bring forward any legislation on the substantive issue in advance of the constitutional review which is due to begin shortly. This review will cover all aspects of the Constitution other than Articles 2, 3 and 41 which are the subject of separate consultations.

The Minister is probably right in saying that. It would be very difficult, given the trouble we have had debating and putting forward legislation dealing with information. Imagine the controversy, hatred and vitriol that would flow if we tried to legislate for the substantive issue. However, we will have to do so in due course.

The Irish bishops on the substantive issue said:

No motive or compassion for the mother, no reluctance or regret, however genuine, can justify or excuse participation in the destruction of a human life... There are no circumstances in which the life of an innocent human being may be intentionally destroyed. That principle remains true whatever the law of the State or international law may say.

The bishops have made their case plainly and unambiguously. They would deny the compassionate decision of the Supreme Court in the X case. They would say Miss X had no right to a termination, no matter that she was suicidal.

Minister for Health (Mr. Noonan,

Limerick East): Is the bishops' statement the full statement or the summary statement? Is it the statement made yesterday?

Ms O'Donnell

It is the full statement and it was issued yesterday. It is important that the view of the Catholic Church be read into the record because it is basically a snub to this House, the decision of the Supreme Court and all compassionate Irish people whether they are practising Catholics.

This amendment goes to the heart of the constitutional qualms we have about the Bill. If, in a particular case, doctors are permitted under the Constitution to perform an abortion in this jurisdiction without any restrictions on what they can or cannot do or say, the same exemption from liability should apply when the same operation is to be performed abroad. Doctors must be given protection if the weight of the criminal law is not to be brought down on them.

As legislators we have a solemn duty to act in accordance with the Constitution which we are bound to uphold. I strongly urge that Deputies address the X case. We cannot get away from the effects of that case. There are many similar type cases and not only in terms of child pregnancies. There are medical circumstances where, if women proceed with a pregnancy, their lives are in danger. In such a case the Supreme Court has held that termination is permissible in this State. It must follow that information, counselling and advice relating to the termination will be available. In cases where a woman requires an abortion to save her life, her medical advisers will be bound by the terms of this legislation.

They will not be able to recommend that a seriously ill woman, with a risk to her life, should have a lifesaving operation as that would be advocating abortion and fall foul of section 5 of this Bill. Doctors would not be able to make any appointment or arrangement for her with a doctor abroad even though she might be too ill to do so herself. They will not be permitted to transmit the woman's medical notes to the doctor in England; this would fall foul of section 8. The doctor in question would be committing a criminal offence in attempting to save the life of a patient, an Irish woman. This is clearly absurd, it offends justice, women's rights, and constitutional rights. If, under the Constitution, a woman is entitled to have an abortion to save her life, she must surely enjoy a correlative right to be told that she requires the abortion.

I will not labour the point further because we have much work to conduct today but I have raised a valid point which will form the basis of a constitutional challenge to this Bill. I look forward to the response not only of the Minister but of all Members who care about women's rights in this country.

Mr. Noonan

(Limerick East): I agree with Deputy O'Donnell that we are down now to the hard work associated with this Bill on Committee Stage and certainly I will not be involved in any political point-scoring. All Members appreciate that the Committee Stage of any Bill is the hardest part for all Members, indeed the part for which one gets the least reward in terms of profile publicity, acclaim or anything else. In fact Deputies participating on Committee Stage are the real legislators in this House, their work continues hour after hour. I am sure we will be here until the vote at 10 o'clock this evening. I must reiterate that I will not attempt to score off anybody and I hope that attitude will be reciprocated.

Mrs. Geoghegan-Quinn

Of course.

Mr. Noonan

(Limerick East): Deputy O'Donnell raised the X case which, when first raised in the courts, was a cause of great emotion. We know what happened at that time, the circumstances of the case. We found out even more about those circumstances when a criminal case was taken against the person who had impregnated the young girl.

The House will recall that an application of the Attorney General was taken to the High Court to prevent the girl's parents from taking her outside the State to terminate the pregnancy. Mr. Justice Costello in the High Court granted the injunction which was appealed to the Supreme Court. The Supreme Court judgment on the X case is very significant in adjudicating on how the conflicting rights of an unborn child and mother could be balanced in accordance with Article 40.3.3º of the Constitution.

I have no doubt of the seriousness of the X case. Those who proposed the 1983 amendment thought they were putting the issue of the right to life of the unborn child beyond doubt as a constitutional right. They did not envisage the Supreme Court subsequently interpreting that amendment as giving the right to have abortions in this country in certain circumstances. Those who advocate easy solutions to complex problems, who stray outside their area of professional expertise, and hand down legal opinion like snuff at a wake, should be very careful, especially when they have no legal expertise because the people who advocated the amendment in 1983 did not expect the Supreme Court to use the vehicle of the amendment to adjudicate that, in certain circumstances, abortion would be permissible in this State. It certainly was not the intention and they were amazed at the result.

I stood here in a different capacity as Minister for Justice, when that amendment was being proposed. For purposes of historical accuracy. Members might look at my Second Stage contribution when I pointed out, on the legal advice then available to me, that this could very well be the result, that it could be the door through which legalised abortion would come into the country. However, I was laughed to scorn by certain people on that occasion.

Mr. D. Ahern

You were the Minister then.

Mr. Noonan

(Limerick East): That is right. Deputy Dermot Ahern was not here at the time. What happened was that a majority in the House was hijacked by forces outside the House and the proposals I put forward were beaten because people crossed the House. That is a matter of historic record, it was not my fault. I did my best. I am not point scoring on it, everybody was doing their best. The heat it generated was colossal, people just could not compose themselves, unlike on this occasion when people did act in a composed manner. It is fraught with emotion, it is a very difficult case.

Where does it leave us now? It leaves us in a position in which, according to the Supreme Court, there is a constitutional right to terminations of pregnancies in this country in certain circumstances. It also leaves the Oireachtas in a position where at some stage, it will have to enact legislation to provide the statutory framework for that constitutional right or, alternatively, to decide on another constitutional amendment to take away that right. The options are not great, it is extraordinarily complex, but it is very difficult to accept an amendment which, in four lines, can deal with a portion of that complexity. However, I will revert to that in a moment.

The amendment tabled by the Progressive Democrats — and I welcome the opportunity to discuss this because it is a complex and serious matter— reads:

Nothing in this Act shall render unlawful any words spoken or acts done in relation to the provision of Act information to any woman where the termination of her pregnancy would be lawful within the State.

Quite frankly, I do not know the circumstances arising out of the X case where the termination of a pregnancy is lawful within the State. There are a number of issues involved. I do not know whether they would have to be replicated exactly before the right arises, or whether conditions analogous to those of Miss X would be sufficient to confer that right. For example, Miss X was under age, she was 14. Is the right confined only to women under 16 years of age?

Ms O'Donnell

No, it says "woman" in the judgement.

Mr. Noonan

(Limerick East): We do not know that, it is arguable.

Ms O'Donnell

We have the text.

Mr. Noonan

(Limerick East): Perhaps, we can talk about it.

Second, if the right is a more general one than that, does it apply only in circumstances in which pregnancy occured as a result of a rape because, again, the exact circumstances of Miss X were that it was statutory rape? The key point of the judgment suggests that that right would be available in this State only if, in the opinion of those best able to give an opinion, her life was at risk as a result of the pregnancy. Therefore, are we saying that that right is confined to girls who have been the victims of statutory rape, who are suicidal and have been adjudicated to be suicidal, or is the right more general? Deputy O'Donnell suggested "no", that I am wrong in what I am saying. I am merely laying out the possibilities: perhaps Deputy O'Donnell is right; perhaps it applies to all women regardless of age, regardless of how the pregnancy occurred. Perhaps that right is there if there is a risk to the life of the mother on psychological but not pathological grounds, perhaps that is the position. However, to attempt to enshrine that right in a Bill in terms which say the termination of her pregnancy would be lawful within the State is extremely dangerous: I simply do not know what I would be agreeing to if I agreed to that.

I said, and Deputy O'Donnell repeated, that there are three commitments in regard to this issue in paragraph 29 of the Programme for Government. I would like to expand on them. It is known that I was involved to a limited extent in the negotiation of the programme for the new Government and I was asked to deal with certain elements of the health aspect of that programme, including this Bill. The text of the three commitments included in the Programme for Government is exactly the same as was agreed by the Progressive Democrats in its negotiations with Labour and it was a good one in my view.

The first commitment was to introduce an information Bill as soon as possible and that is what we are doing. The second commitment was to provide research, counselling and education facilities and we are in the process of doing that. On Second Stage I outlined the way I will be approaching that. The third commitment was to continue an examination of the complex difficulties arising from the X case. It would be fair of any commoner to say that that commitment will kick the ball deep into touch and that will continue to be done for some time.

I wish to draw Members' attention to another commitment in the Programme for Government which was that a group of experts will examine the Constitution. We would be interested in a review of the Constitution. Many Deputies on several occasions pointed out what they consider to be defects in our Constitution governing a modern State. A review of the Constitution will be carried out in the first instance by a group of experts. One may ask, who is an expert as we are all citizens? The word "expert" is used in the context of those who would have a particular prominence in constitutional law, legal expertise and so on that may be valuable.

The group of experts would lay out the ball park and examine the parts of the Constitution which might need, to use a non-constitutional expression, "to be refurbished". They would present a report by way of a White Paper or a document of less status which would be passed to an all-party committee of the House. That commitment in the Programme for Government has not received much attention. It states that a group of experts will review the Constitution in the course of 1995 and that their report will be passed to an all-party committee in 1996 which will examine the Constitution to decide what amendments, if necessary, should be brought forward. The only exclusions being considered by the Government are Articles 2 and 3 as they are being dealt with in the context of the Framework Document and negotiations with those with an interest in them, and the provision on divorce which will be dealt with separately in a constitutional referendum.

The remainder of the Constitution, including the personal rights Articles, comes within the terms of reference of the proposed constitutional expert committee and the proposed all-party committee. I hope that in addition to producing recommendations on various issues, it will suggest changes in the personal rights provisions of the Constitution, including the implications of the X case. I have followed the X case as close as any Deputy and anything I have heard in the Department of Health of the work carried out on it only confirms my view that it is not possible to legislate in accordance with the decision of the Supreme Court in that case in a manner which confines the availability of the termination of pregnancy in this jurisdiction to the narrow scope which arises from the Supreme Court decision.

If one must have regard to a statutory provision which allows the termination of pregnancy on suicidal or psychological grounds, who is to adjudicate on that? In other jurisdictions a tribunal of experts, including a gynaecologist, a psychologist and a general practitioner, can be established. However, if a woman appears before such a tribunal and expresses suicidal tendencies, backed up by medical evidence, what members of a tribunal will say "no" to her request for the termination of a pregnancy? The difficulty is how can statute law confined to the exact scope of the judgment in the X case be introduced? Regardless of arguments we may have as to the exact scope of that judgment we all agree it is narrow. I am not in a position to bring forward legislation arising out of the decision in the X case and I have no intention of doing so, but it will receive consideration by way of the process I described. The issue of Article 40.3.3º will be considered by way of that process also. I hope all Deputies on this side of the House in the course of 1996, through representation on an all-party committee, will give their views on this issue. In those circumstances I cannot accept this amendment today because, in simple terms, I do not know what I am buying into.

The amendment states, "... where the termination of her pregnancy would be lawful within the State.". If the amendment were accepted nothing in this Bill would render unlawful any words spoken by say a practitioner or acts done in regard to the provision of "Act information." The term, "any act done by a doctor would not in any circumstances be contrary to the law", is such an imprecise formulation that I would not know what I am buying into.

On considering the Bill as a whole, I do not believe the amendment is necessary. The Bill provides that if a pregnant woman visits her family doctor and indicates she is pregnant her doctor will give her advice. If the doctor does not feel in conscience that he or she can give her "Act information" in accordance with this Bill when enacted, he or she need not do so and can counsel her on other options. If the doctor gives the patient "Act information", the process culminates when he or she gives her names, addresses and telephone numbers of abortion services abroad and that process will be non-directive. A pregnant woman who is suffering from cancer may be advised by her oncologist that if she were to carry her baby to full term, necessary treatment, such as chemotherapy, would have to be deferred to a point where she could die. The oncologist may outline the patient's medical condition, the extent of her cancer, give an expert view on how it will progress and advise the patient that if she does not have treatment for her cancer she may die. Would that advice advocate or promote abortion or is it not simply a statement of the facts in a non-directive way? When that oncologist describes the nature of his or her patient's malady are the options not clear? Is the oncologist not totally within his or her rights to describe the nature of the patient's malady? To say that an oncologist giving medical advice to a woman with cancer about her condition is caught by the provisions of this Act and that advice would be deemed to be promoting or advocating a termination of pregnancy simply does not stand up.

I am glad the issue has been raised because we have been fearful of talking about issues which must be in the minds of many women. A total of 4,200 women from this jurisdiction and 1,700 or 1,800 women from Northern Ireland sought a termination of pregnancy last year and those are only the women who gave Irish addresses.

Deputy Kenneally said on Second Stage that those figures were not correct, but they are the official figures of the United Kingdom's Central Statistics Office. Deputy Kenneally had a theory that many English women having abortions in England gave fictitious Irish addresses to disguise the fact that they were seeking a termination of pregnancy. That is fantasy. There is a very simple reason why English women would not give Irish addresses. If they did, they would have to pay for the termination whereas the vast bulk of them would qualify for a free termination under the NHS in the United Kingdom if they gave an English address. Is it reasonable to think English women would give Irish addresses for some fantasy reason and have to pay for the termination of pregnancy when if they give the English address it is done under the national health service? That is by way of an aside.

In the context of so many Irish women going abroad for the termination of pregnancies, and in the context of the good, valid and compassionate arguments put forward here in terms of family planning services, counselling and advocacy of intervention to reduce this volume, we should talk about the X case. However, I do not have a solution and I cannot commit myself to bringing in a Bill based on the X case. However, we will not leave the thing just sitting there and pretend we are doing something.

We are putting it to the expert group, and all Deputies through an all-party committee will have their say in due course on the X case. It is so complex and difficult — and the previous administration had the same difficulty — there just was not a way of dealing with it. I am not blaming it in any way, as it is extraordinarily difficult.

Last night I said Supreme Court judgments do not easily come out in the form of heads of a Bill. It would be lovely if we thought the Supreme Court in its judgments would give the heads of a Bill but that is not the way it works.

I understand and share the concerns of Deputy O'Donnell. She is addressing a difficulty that is not in the Bill and putting forward a solution which has the profoundest of implications and which would drive a coach-and-four through the terms of this Bill, in effect, leaving it up to any doctor to do anything at all if he were to claim that a pregnant woman was in the same circumstances as Miss X or in analogous circumstances.

The only test then would be if someone prosecuted him and it would run the whole way up to the Supreme Court again. I want to protect the position of advisers and doctors. I do not want them to be open to litigation. I want them to have certainty in the law so that they know what they can and cannot legally do and that they are not being set up by agents provocateurs coming into their clinics. I appreciate the difficulty in the general area of the X case but the flaw being pointed out is not in the Bill and the solution proposed is so wide that I simply do not know what the circumstances would be if I included it in the Bill.

Mr. M. McDowell

I am alarmed and very distressed to hear the Minister's approach to this. It seems to be based on a number of fundamental legal errors and a failure to understand the import of his own legislation. This Bill makes it an offence for any doctor in Ireland to make an arrangement in England for any Irish woman to have an abortion whom he has advised on her pregnancy. A person to whom section 5 applies is prohibited by this Bill under sanction of criminal law from making an arrangement with an English abortion clinic to carry out an abortion in respect of an Irish woman who is his patient. That is what the Bill states. Does the Minister dispute that?

Mr. Noonan

(Limerick East): This is not a cross examination, Deputy. You are not in the courts.

Ms O'Donnell

It is Committee Stage. That is a cheap remark.

Mr. M. McDowell

With respect, the Minister has just waffled here in an entirely superficial way on a very serious issue. He has not done himself very much credit by his response so far.

Mr. Noonan

(Limerick East): Let us hear the Deputy's ease.

Mr. M. McDowell

Does the Minister accept that an Irish doctor is not permitted to make an arrangement with an English abortion clinic for the termination of the pregnancy of his Irish patient? If he does not accept that proposition he does not seem to understand his legislation and I will pass on from it, because obviously he will not agree with me on that subject.

Let us go on from there. The Minister seems to think he can compartmentalise the X case and say it is for a committee of experts to advise the State about, but it is not. Article 40.3.3º was interpreted by the Supreme Court to mean that a mother in Ireland is entitled to have an abortion if there is a real and substantial risk to her life by the continuation of the pregnancy. Furthermore, the Supreme Court said that did not mean there had to be an immediate and inevitable threat of death — that was too high an onus of proof to cast on a woman. If there is a real and substantial risk, as a matter of probability, to her life she is entitled under Irish law to an abortion here or in England. Now if the Minister does not understand that he should not present this Bill. He says he has difficulty understanding the X case. If he read the head notes of the report which are simple——

Mr. Noonan

(Limerick East): I read every judgment in the X case.

Mr. M. McDowell

Yes, I know, but the head notes of the report read as follows: "The true interpretation of Article 40.3.3º of the Constitution required that termination of pregnancy was permissible only where it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination was not effected. To prevent termination, except in circumstances where there was a risk of an immediate or an inevitable death of the mother did not sufficiently vindicate the right to life of the mother".

That is the decision of the Supreme Court. That is the report it has approved. That is what that court says it meant and that is what the Constitution means. I did not like certain aspects of the X case decision but I am bound by it and so is the Minister. What follows from that is that one cannot say Article 40.3.3º means something else or criminalise doctors who do certain things because one cannot understand the judgement. Pleading one's ignorance, with the greatest of respect to the Minister, is no excuse. The Minister is here to enact a law consistent with the Constitution as interpreted by the Supreme Court. If the Minister tells an Irish doctor he may not make an arrangement under pain of criminal sanction for the termination of a pregnancy in an English abortion clinic in circumstances where the woman as a matter of Irish law is entitled to have that abortion in Ireland or in England, he is prohibiting an act which is lawful. That is logic, it is plain, simple and straight.

I do not believe for one minute the Minister can avoid the issue by saying some group of experts may on foot of the X case propose in the House to amend the Constitution.

As Taoiseach, Deputy Albert Reynolds said he would certainly legislate to give effect to the X case decision if the substantive amendment was defeated. I knew that was an idle threat at the time, because I knew in my heart that nobody could dream up that Bill. One could not write it or even start to write it.

Mr. Noonan

(Limerick East): That is right.

Mr. M. McDowell

There would be chaos if one started to write that Bill because if abortion was allowed in the case of rape, who is to decide if there is a rape? Is there to be a criminal trial, a certificate from a Garda superintendent or does the Rape Crisis Centre decide that it is a rape? Nobody knows.

Mr. Noonan

(Limerick East): How does one allow for incest?

Mr. M. McDowell

If it is to be allowed in the case of incest one has to have convicted the father or brother of being the parent of the child or the embryo. In all these circumstances there are complexities but the Minister is running away from reality. I would not really worry about it so much if this was just an academic dispute or exercise but we are asking this House to create a new criminal offence; that is that an Irish doctor may not make an arrangement for an abortion in England on behalf of a patient of his. An Irish patient is entitled to have the assistance of her doctor in making such an arrangement in the circumstances set out in the X case, as follows: "that there is as a matter of probability a real and substantial risk to her life". That is not confined to cases where there is an immediate or inevitable threat of death. That is the law and the Minister is bound by it as much as I.

Mr. Noonan

(Limerick East): How can a doctor establish that there is a real and substantial risk? Who adjudicates on that?

Mr. M. McDowell

This is a point on which the Minister's colleague, the Minister for Justice, has been greatly misled. She announced on radio the other day that if any woman wanted to have an abortion within the rubric of the X case she would have to go to court to establish that situation. That is rubbish. A woman is entitled under the X decision to have an abortion, as contemplated by that decision, without any access to the courts, without going before any wigged gentlemen; without having anybody take any injunctions one way or the other. It is her right under the Constitution and the right of her medical practitioner, if those circumstances exist, to assist her. That is the law.

This Bill may well be referred to the Supreme Court next week under Article 26. The Minister is proposing in this Bill that even though he knows — if he reads the X case decision — a woman is entitled to have an abortion either inside or outside the State in certain circumstances, nobody can tell her that she should do so if they are a person to whom section 5 applies and that if her doctor comes on the scene and proposes, in those circumstances, to make the arrangements for her he commits a criminal offence. His excuse for introducing this crazy law which flies in the face of the decision of the Supreme Court is to say he has difficulty in working out what the X case decision means.

I accept that in any particular case the X case would or would not avail any particular woman but the Supreme Court decides what the Constitution means and it says that an Irish woman is entitled to an abortion if, as a matter of probability, there is a real and substantial risk to her life if the pregnancy is not terminated. That is not confined to immediate or inevitable death risks. If that is the case, the Minister has to face up to the proposition of whether the Bill is constitutional. If he is wrong on this it will be entirely his personal responsibility, bearing in mind the response he has given to the House today, because the Supreme Court will not want to hear about an expert group revising the Constitution. It will want to know whether this Bill is consistent with the Constitution.

As a matter of simple logic, is it not the case that the Bill criminalises a doctor who makes such an arrangement on behalf of a woman in Ireland? Is it not obvious from the X case in the Supreme Court that there are cases, as a matter of law, where a woman is entitled to have such an abortion and is entitled to have her doctor take every reasonable step to assist her in that course if her doctor is so willing on a conscientious basis, including making arrangements and, if necessary, going to England with her to assist in the operation, including discussing all the details of her case directly and making direct contact with the English specialist who might have to carry out the operation on her with a view to determining how best her health might be saved in those circumstances?

Let us take the example cited by the Minister of the oncologist and the woman who is facing death if she does not have radiotherapy or chemotherapy. I know a particular woman who, happily, is alive and well and living in my constituency, who faced that difficulty. At the time of the 1992 election she came to me in tears because my party would not take a decisive stance against what was planned in the three referenda. I had known her for many years socially prior to that. She told me of her experience. She had to make a decision, based on her own health, whether to proceed with a pregnancy. It was one of the most terrifying decisions she ever had to make. Needless to say she finds remarks about murder and holocausts extremely unhelpful — that is probably a great understatement.

There is no point in trying to avoid this issue. An oncologist is entitled to give her advice saying: "I suggest you have an abortion". He or she is entitled to telephone whatever clinic it is in London and say: "I have a woman who is very ill and needs chemotherapy. She already has this complication and I want to be involved in any procedures in respect of this woman. I want to be consulted at every stage. I want to make available to you, her entire medical history and to give you advice in relation to carrying out this procedure". All those issues are that woman's constitutional right now.

The Minister is avoiding the X case completely. He said he had difficulty in understanding it and that it is difficult to apply to individuals in certain circumstances. It is as clear as crystal what it means. It means that a woman, in those circumstances, is entitled to an abortion inside or outside Ireland. If the Minister introduces a Bill and says it is above his head, is too complicated, is too airy fairy or whatever, he is saying to the Supreme Court he does not care about a woman's right to abortion. We are dealing with a proposition, effectively, that no woman has a right to an abortion in Ireland under any circumstances. That is not our law.

As I said last night, the Minister's failure to deal with this proposition stems from the fact that originally when the heads of this Bill were drafted, people had in mind two Bills: one of which would deal with the substantive issue and the other with information issues. The draftsman sat down and worked along a single track. He did not look right or left and never looked to see where he was going. Whatever the draftsman did or why is slightly irrelevant. I am not exaggerating the law when I tell the Minister that the Supreme Court's decision is relatively straightforward as a principle; that woman, in certain circumstances, as a matter of Irish law, are entitled to an abortion. It follows from that that they cannot be prohibited or inhibited in exercising that right by legal criminal sanctions on those who seek to assist them, if they do so in good conscience and properly in conformity with the Constitution.

The Minister is leaving no "out" in this Bill. He says Deputy O'Donnell's amendment would allow someone to drive a coach and four through it, but that is not the case. What Deputy O'Donnell is seeking is the absolute minimum to preserve the established rights of women under the X case, to coexist with the general provisions of this Bill. It seems to me, as a matter of logic, that if the Minister reflects on it he will have to come to the conclusion, sooner or later — he has a day or two in which to do so — that if one is entitled to an abortion in Ireland, under certain circumstances, one is certainly entitled to have that abortion carried out in England. That is axiomatic.

If you are entitled to have a doctor carry out an abortion in Ireland for you, it is clear that you are equally entitled to have an Irish doctor assist you in making the arrangements for such an abortion if it takes place in England. If you are entitled, as a matter of right, to have an abortion in Ireland, under the X case, you are entitled to be told that that is the case. Your medical adviser is just as entitled to urge you to have that procedure done as he or she is entitled to urge you to have any other health procedure carried out.

The Minister has come into the House today — I was about to use a phrase used by Deputy Ahern — and waffled on this subject. He said that the X case is very difficult, that it is emotional, that it raises all sorts of profound issues that, as a Legislature and a country, we may have to revisit at some stage, kick to touch and get on with this Bill. The Minister is bound to uphold the Constitution. This Bill is bound to uphold the Constitution. The Constitution says that women have rights to abortions in and outside Ireland in certain circumstances. The Minister and we, as a Legislature, have no right to enact a Bill which inhibits or prevents the exercise of that right by criminal sanctions. That is crystal clear. That is why I said in an article in the Sunday Independent, which the Minister may not have found too flattering——

Mr. Noonan

(Limerick East): It was personal abuse. If the Deputy had made those remarks in the House he would have been asked to withdraw them.

Mr. M. McDowell

I most certainly will not withdraw one word.

Mr. Noonan

(Limerick East): If the Deputy made them here the Ceann Comhairle would ask him to withdraw them.

An Leas-Cheann Comhairle

Let us hear the Deputy, please.

Mr. M. McDowell

The Minister may think this Bill is cute but it is not, it is flawed and has a big gaping hole under the water line. The Minister has ignored this and thinks he will get away with it. However, he will not because whenever this issue is raised, whether under an Article 26 reference——

An Leas-Cheann Comhairle

Sorry, Deputy. We are on Committee Stage but we seem to be having a Second Stage debate.

Deputies

Hear, hear.

Mr. D. Ahern

We have had two Second Stage speeches.

Mr. Noonan

(Limerick East): Court speeches.

Mr. M. McDowell

The Minister spoke for 25 minutes and, apart from telling Deputy O'Donnell in a patronising way that he was glad she raised it, did not address the issue. I am talking about women with rights and doctors who may be criminalised for doing something which they are not only entitled — but bound — to do in certain circumstances. The Minister's performance to date on the issue shows that he does not appreciate his function in the Bill, to uphold women's rights as they are now established. I would be interested in hearing if the Government backbenchers agree with me or whether they think the Minister's position is sustainable. I do not think his position is sustainable and I am very surprised that the Attorney General's advice has not been sought on the implications of the X case for this Bill.

Miss Flaherty

Deputies O'Donnell and McDowell raised a substantial issue under their amendment and it is worthwhile spending some time on it. I made a very brief Second Stage speech because I thought the debate was about to collapse — no Opposition Deputies were offering and there was very little activity——

Mr. D. Ahern

The Government gave all its slots to the Progressive Democrats.

Miss Flaherty

I am speaking about the first day of the debate when there were no Deputies on the Opposition benches.

Mr. D. Ahern

I am here now.

Miss Flaherty

If Deputy Keogh had not offered the debate would have collapsed.

Mr. Hilliard

That is cleverness.

Miss Flaherty

It has nothing to do with cleverness.

Mr. Shatter

The Deputies opposite had not got their scripts at that stage.

An Leas-Cheann Comhairle

Let us hear the Deputy in possession without interruption, please.

Miss Flaherty

I am simply explaining why my contribution was brief and unprepared. If I had not spoken at that stage and waited two or three days I would have been prepared and made a longer contribution.

Mr. L. Fitzgerald

The Deputy should have contacted her Whip.

Mr. Shatter

The sneering by male members of Fianna Fáil at the Fine Gael Party is indicative of their attitude on this issue in the House and speaks volumes about Fianna Fáil backbenchers who are disgracing their frontbenchers.

An Leas-Cheann Comhairle

Please, Deputy Shatter.

Mr. Shatter

They should have more sense than to intervene in these circumstances.

An Leas-Cheann Comhairle

Deputy Flaherty is in possession and a number of other Deputies are offering.

Miss Flaherty

Having listened to the arguments about the substantial issues raised under it, I have come to the conclusion that we should simplify the Bill to minimise potential legal challenges. Consideration must also be given to whether the Bill will get over the constitutional hurdle.

The Minister said he does not think this will be a problem and I would like him to respond to this point in more detail. The decision in the X case and the constitutional rights conferred under it are substantial. I do not have enough technical skills to know if the amendments proposed by Deputies of the Progressive Democrats are the best way of dealing with this issue and I would like to know what advice the Minister received which says that the obligations under the Bill may be inappropriate in other cases. Even though they have not been heard in court, other cases have arisen since the X case. Yesterday there was a reference to an 11 year old girl who is pregnant. It is important to refer to individual cases involving real women and children. Unless they are lucky enough to have a caring parent or guardian, young girls should be able to make their own arrangements.

I have already referred to the 11 and 14 year old girls who became pregnant after being raped. Consideration must also be given to the enormous stresses on young pregnant students whose whole lives may be changed by pregnancy, potentially suicidal people and women in their 40s who may be pregnant for the fifth or sixth time. Pregnancy can give rise to problems for women who have partners, a substantial income and child care facilities and one can only imagine the problems it can pose for single or deserted women who have little financial resources. The X case was not an exceptional case, there are a number of such cases every year.

There was a reference to pregnant women who require treatment for cancer. During the debate in 1982-83 a prominent obstetrician from Galway told a medical meeting that he had consulted legal and other advisers about whether he was entitled to treat a pregnant woman for cancer. The problem was resolved when the woman had an abortion in England. However, this intrusive medical operation put her at an increased risk of the cancer spreading.

We must be sure that the X case scenario is covered under the Bill and that we do not implement provisions which can be successfully challenged. We are not all graced with Deputy McDowell's certainties about this issue. I come from a different environment and I do not have absolute certainties about all aspects of life.

Mr. M. McDowell

I was saying what I had read.

Miss Flaherty

The Deputy is blessed in that he has certainties about every area of life. Those of us who try to find solutions to this problem——

Mr. M. McDowell

The Deputy was doing all right up to now.

Miss Flaherty

——with less arrogance and assurance may move it along somewhat better than the very talented Deputy opposite.

Mr. M. McDowell

I know what I heard the Minister say.

Mr. D. Ahern

Is Deputy Flaherty sure about that?

Miss Flaherty

We are doing much better than the contributions from Members opposite suggest.

Mr. D. Ahern

We are all entitled to our views.

Miss Flaherty

The only sections of the Bill which are practically guaranteed to be constitutional are those which relate to the nature of the information, public advertising and the obligation in respect of counselling. We are endeavouring to steer a difficult course in this Bill. Having regard to the information the Government gave to the public in the context of the 1992 referendum, the Minister chose the correct balance in regard to referral, but it will be challenged immediately and constantly. I would like him to be more specific on the Bill's constitutionality. We do not want a repeat of the Matrimonial Home Bill which was found to be unconstitutional. Because of the difficulty of legislating in this area, it would be unfortunate if the Bill was found to be unconstitutional. Many of its sections will improve the position in regard to abortion and make this a better society and it would be unfortunate if we had to risk those sections because of the unconstitutionality of others. I would like the Minister to refer in particular to the sections which may prove to be unconstitutional.

Mr. L. Fitzgerald

I share the Minister's concerns in trying to legislate on the substantive issue. He is correct in saying this is an extremely complex and difficult area and that extreme caution must be exercised. Like other Deputies, I am impressed by the expertise, the flood of certainty and tremendous, overwhelming inspiration Deputy McDowell brings to bear in his contributions. He used one phrase or assertion 25 or 30 times to improve his argument. I am sure it would be very impressive in a court of law, but it did not impress me. He appeared to be convinced that he had an unequivocal and crystal clear interpretation of a document he had before him which gave him the wisdom to lecture the Minister. I have no difficulty with him lecturing the Minister on what he should or should not have done in this Bill, but I do not want him to lecture me. Despite my lack of legal expertise or knowledge of the Constitution, I do not share the certainty Deputy McDowell articulated so forcefully.

While I welcome the Minister's reference to the establishment of a committee, he should be cautious in regard to its composition. If he selects five constitutional experts, he will get five different versions of recommendations. Given the wide-ranging interpretation of our constitutional rights, a multidisciplinary team should be selected by the Minister to form the committee. The subsequent proposals of such a team would reflect the expertise of various disciplines.

Mr. D. Ahern

In regard to Deputy Flaherty's comments about those from this side of the House did not contribute to the Second Stage debate, I did not speak because I did not have an opportunity to do so. I was at the end of a long list of Members who wanted to contribute. I will make my position clear, as an individual Deputy, on Committee Stage. I also resent the sexist and illiberal remark Deputy Shatter made about the male members of Fianna Fáil. They are as entitled as any other Members of the House to make their views known on this or any other subject.

Mr. Shatter

They are, but they are not entitled to sneer at the contributions from members of the Fine Gael Party.

Mr. D. Ahern

Deputy Shatter is turning his liberal views back on himself by saying, in effect, that we have no right to say what we want to say. I ask the Deputy to allow us the right to say what we want and not to make any reference to the male or female contributions from this side of the House.

Unlike previous speakers, I will try to be succinct. With respect, this is Committee Stage, not Second Stage. It is unacceptable that the Minister and Deputy McDowell should speak for approximately 25 minutes. We should be teasing out this amendment and there are many more to be dealt with today on which Members from this side want to contribute.

This amendment goes to the heart of the abortion issue. When the Bill was suddenly thrown at us by the Government, which says it wants political consensus, I made the point that it was putting the cart before the horse. It has been introduced at a stage when we, as a nation, have not yet made a decision on the X case. While some people do not want the position changed, the majority want the matter addressed. The fact that Deputies O'Donnell and McDowell tabled this amendment indicates the lack of wisdom in bringing forward the Bill at this stage. As can be seen from the Supreme Court decision, there are circumstances in which abortions are allowed in this State. I do not support that. I support what the Minister, Deputy Noonan, said in his Second Stage speech on the Eighth Amendment of the Constitution Bill, 1982. He stated:

...but the basic issue, to those who believe that pre-natal life is human life, is not complex. It is starkly simple and reduces itself to whether we as a society are willing to accept the introduction of the practice of induced abortion into our legal system. At the end of the day, there are only two possible answers to that basic question. One is "yes". The other is "no". I submit to the House that the answer ought to be "no".

I agree wholeheartedly with that view. The majority of our people do not want abortion legalised here and, while some Members would not agree, the provisions of our Constitution do not come to an end at Dún Laoghaire Harbour. Some Members have accused us on this side of being hypocrites. Is it not hypocritical to formalise the right to an abortion abroad while not allowing it in this State? This amendment indicates the state of flux that exists. I agree with the Minister that it should not be dealt with in an amendment like this. The issues are far too complex. Neither the Minister nor the courts have all the wisdom. Even Deputy McDowell would accept that the legal issues in the X case were not fully teased out. Unfortunately, what is needed on that type of issue is a full blown case to find out what exactly our Constitution states.

Mr. Shatter

Does the Deputy want to see in the courts another 14 year old girl who is a victim of statutory rape?

Mr. D. Ahern

I am not saying we want another X case but there is the danger that there will be another. Just as Deputy McDowell is able to instance cases he knows of, so am I, and the Deputy knows the person I am talking about. It is not easy when the life of a mother is at issue. While I agree to a certain extent with the Minister's attitude, I resent some of the points he made in concluding Second Stage last night. This is an issue that the Minister agreed was extremely difficult. Yet all he did was make political points. If that is how the Minister deals with an issue like this. God help this Parliament.

Mr. Shatter

I am really shocked by the last contribution. I find it very sad. Deputy Ahern is someone for whom I have always had a good deal of respect at a personal level, but his contribution might have been better not made. It is on a par with those of other members of his party.

Let me analyse that contribution and deal directly with Deputy McDowell's amendment. Deputy Ahern tells us he is against abortion. That was a good line in 1983. Everybody is against abortion, except it is women who happen to have them. Some women become pregnant, and sadly, find their lives at risk. Is Deputy Ahern telling us that a woman whose life is at risk should remain at risk and never terminate her pregnancy?

Mr. D. Ahern

I am not saying that.

Ms O'Donnell

Close the airports, shut down the ports.

Mr. Shatter

Deputy Ahern gave us a clear statement that he disagrees with the judgment in the X case and is against abortion and that we should turn the clock back. No doubt that will go down well with the few members of Family Solidarity in his constituency who have been telephoning him in recent days and, perhaps, with a few members of Fianna Fáil who also happen to be jointly members of Family Solidarity and the Deputy's own local cumann.

Mr. Hilliard

The Constitution is the issue.

Mr. Shatter

Let us deal with the issues. Deputy Ahern says that what we are trying to do is, in some way, formalise abortions abroad. I do not know where Deputy Ahern is coming from, but as of now there is a minimum of 4,500 Irish women having abortions abroad. Did Deputy McCreevy not say that yesterday? In 1983 we were told that the 1983 amendment would put a stop to that — there were only 3,000 women then having abortions abroad. In what way are we formalising it? Is it the Deputy's suggestion, first, that women whose lives are at risk should die and, second, that we would have a police force sitting at our airports to stop pregnant women leaving this country?

Mr. D. Ahern

I am not saying that.

Mr. Shatter

That is what rowing back on the X case means. The Deputy then tells us we need another X case to clarify the law.

Mr. D. Ahern

I did not say that.

Mr. Shatter

On occasions I have been accused of being filled with as many certainties on issues as Deputy McDowell was accused of a few minutes ago. I will not become personal in teasing out issues, but I make no excuse for responding to the backwoodsman-like, blinkered approach Deputy Ahern has taken in this House.

I am sorry if this upsets Deputy Ahern yet again because it is not directed at him. The problem in this debate is that it is far too easy for the male Members of this House to stand in this Chamber and dissect women's bodies in the interests of making party political points on this Bill. I am fed up seeing the male Members of this House and men outside doing this on this issue. It is easy for men to procrastinate about the circumstances in which a woman should be allowed to terminate a pregnancy, about when a woman's health is at risk as opposed to her life, about when she should be given information. When a doctor is consulted by a patient who appears to be seriously unwell, is he to say that she is not yet sick enough that her life is at risk and that he cannot advise a termination, but that she will certainly deteriorate and that, perhaps, in six weeks' time he can tell her that her life will be at risk if this condition persists? It is very comfortable for men to debate this issue. We do not have to worry about it. It will not affect any of us in our individual lives. It might affect our wives, mothers, relations or, indeed, some friends of ours, but it does not affect us personally. It is just so easy to debate it, sitting on a high cloud of moralistic fervour. It is so easy for the godfathers of this debate in the extreme organisations to bring into press conferences young, naive, newly-qualified, good-looking female doctors to present a user-friendly message about a subject which they do not yet have the experience in their practices to understand the implications of.

Mrs. Geoghegan-Quinn

That is a sexist remark.

Mr. L. Fitzgerald

That is disgraceful. It is offensive to women.

Mr. D. Ahern

It does not surprise me.

Mr. Shatter

In the context of the amendment before the House, Deputy McDowell has raised a number of issues which are of importance. I think he is wrong in some respects because this Bill is carefully phrased. However, the Bill is difficult and I agree with Deputy McDowell that it is open, in some aspects, to a number of different interpretations and will give rise to continuing litigation. No matter from what perspective one approaches the Bill, people on different sides of the discussion — I would rather call it a discussion than a debate — will inevitably bring a constitutional challenge to it. That is why I said last night that I believe the President should refer the Bill to the Supreme Court under Article 26. That would allow us to have a clear view about some of these issues and bring to a conclusion the never-ending litigation, at least on this aspect of the problem.

I am sorry if I am to be accused of having certainties, but I have no doubt that one effect of the X case, which is simple and straightforward, is that where there is a real and substantial risk to the life of the mother she is entitled to terminate her pregnancy. People may want to walk on the head of a pin to work out at what stage an illness poses that level of risk, but I have no doubt that that is the position. What Deputy Ahern and others are forgetting is that the former Taoiseach, Deputy Albert Reynolds, and his ministerial colleagues tried to row back on the X case judgment. The third referendum in 1992, which nobody is speaking about, was to delimit the impact of that constitutional decision, to create a situation where if a young girl who was pregnant or suicidal wished to terminate her pregnancy she could not. That was rejected by the people. We have already had the referendum to row back on the impact of the X case, and it failed.

The legal position is, therefore, that if a mother's life is at real and substantial risk, she is entitled to terminate her pregnancy. That means she is entitled to information about termination and that if she is consulting with a member of the medical profession who, to use the words of section 1 of the Bill, engages in or holds himself or herself out as engaging in the activity of giving information, advice or counselling in relation to pregnancy, is entitled to advise her of the need for termination and, in my view, make whatever arrangements are required.

She may consult a member of the medical profession who does not hold himself or herself out in that capacity, the kind of doctor to whom the Minister referred. In those circumstances full advice can be given but in this regard there is a problem with the Bill. We may not be able to deal with it fully in this House and a constitutional reference may be required.

Let us take as an example someone who has cervical cancer and is pregnant — I am sorry if I am getting into the dissecting business but, as my colleague, Deputy Flaherty said, we should talk about real problems and issues which affect women, not men — who is advised by her gynaecologist, the person she is likely to consult initially, that she should undergo certain medical treatment which would involve the termination of the pregnancy. She may be advised to terminate in advance of the treatment because of the effects the treatment would ultimately have and the added complexity if she should continue further into the term of pregnancy.

If the life of that woman is at risk she is entitled to receive information from the gynaecologist who should be able to make whatever arrangements are necessary, and in this country she is entitled to a termination. Members of Fianna Fáil may be uncomfortable with this notion but that is the result of the X case which was the consequence of the 1983 amendment which members of Fianna Fáil advocated.

Let us assume that a woman has cancer in another part of her body and is advised by a doctor, who does not profess, to be engaged in providing pregnancy advice, that if she maintains the pregnancy she may die or may be so ill at the time she gives birth that she will not survive or that there is some possibility of her surviving and that she should terminate the pregnancy. Under great stress she may decide to consult a pregnancy counsellor. When made aware of the fact that the woman's life is at risk the pregnancy counsellor is entitled constitutionally not just to start explaining that she has various options — that she could have the child and have it adopted or keep it herself — but to say that as her life is at risk, she ought to terminate the pregnancy to save her life and ensure she will be available to care for her other children as they grow up. I am concerned that this Bill will criminalise the giving of such advice by a pregnancy counsellor.

I am sorry if I have been hard on Fianna Fáil as I know some of its members, including its health spokesperson, have genuine concerns in these areas. I am sad that they have been unable to articulate them fully and bring their party along with them in addressing those concerns. It is time to bring to an end the fantasy land debates which have taken place in this House on this issue since 1983 in which people have read from prepared scripts provided by SPUC, PLAC and others.

In this amendment Deputy McDowell is raising a number of the issues——

Ms O'Donnell

There are two names attached to the amendment.

Mr. Shatter

I beg the Deputy's pardon. Both Deputy O'Donnell and Deputy McDowell are entitled to raise these issues which are worthy of discussion. I do not think that in some of these areas we can be absolutist in the sense that I cannot put my hand on my heart and say with certainty that if the Supreme Court is asked to make a decision on the constitutionality of this measure it will hold it to be constitutional or unconstitutional. There are valid and serious constitutional issues which deserve to be addressed and resolved but outside the esoteric world of the legal system and jurisprudential issues there are real issues which affect women and they should not be treated tritely or lightly. Because of the different approaches that can be adopted and the different perspectives that can be taken to the Bill my ultimate concern is that all members of the medical profession may be confused if it becomes law and is not dealt with on a constitutional basis.

The Minister is trying to play a particular role which is to ensure that the fog of propaganda surrounding the debate is cleared. If this Bill becomes law the medical profession and those engaged in counselling should have a clear view as to where they stand and what they can do. A woman whose life is at risk cannot wait while her doctor sees his solicitor and consults senior counsel to find out what medical advice he can give her. That cannot and will not work.

The amendment reads:

Nothing in this Act shall render unlawful any words spoken or acts done in relation to the provision of Act information to any woman where the termination of her pregnancy would be lawful within the State.

What Deputy McDowell and Deputy O'Donnell are talking about is a pregnancy which poses a real and substantial risk to the life of the mother. The aspect of the Bill which will give rise to a multiplicity of litigation, which will not work, is that in a free society one cannot curtail speech and we should not try to do so.

There is one aspect which is worth referring to at this stage and to which I will return when I deal with the Fianna Fáil amendments which fail to take into account the impact they may have. If this Bill becomes law, even if we accept this amendment, certain words will be unlawful. If an 11, 12 or 13 year old girl is the victim of statutory rape and is pregnant — I emphasise this may be the case as I do not want to prejudice what may occur in a criminal trial in relation to the young girl whose tragic situation has been detailed in the newspapers in the past 24 hours — the sad reality, and I make no excuse for saying this, is that she may be compelled to bring the pregnancy to full term or leave the country to terminate it, unless she is suicidal.

If a young girl of that age is the victim of incest or statutory rape and pregnant the issue should not be whether we should work out if she is suicidal; any young girl in that situation should be entitled to a termination, to say otherwise would amount to extraordinary cruelty. By forcing her to leave the country to obtain a termination we are simply turning our heads away and, what Deputy Ahern criticised us for doing, formalising the sending of our citizens abroad to effect terminations.

If Deputy Ahern had a 12 or 13 year old daughter who was pregnant as a result of statutory rape would he be of the view that she should maintain that pregnancy or terminate it? Would he be of the view that she should not be allowed to terminate it in Ireland and would he stop her terminating it outside Ireland? We should talk about real people and tragedies; we should not talk in esoteric terms about theoretical law and forget that it affects real people. If the parents of this tragic girl decide that they want a termination would Deputy Ahern like to see this girl and her family brought before the courts and the current Attorney General do what his predecessor did, create another X case? I imagine that he would not. When we talk in general terms we should think of the specific application of the general approach we are adopting.

Apparently, it may also be unlawful to give information to someone who has discovered that the child they are carrying is anercephalic. This is another problem we do not address. That is why I said yesterday that it is sad that the effects of the 1983 amendment have inhibited us in dealing with the issues and social problems that affect so many women. In dealing with this amendment and in the further amendments, let us talk about people and the impact of what we are doing on the lives of women. We should try to tease out the Bill and the desirability of the amendments proposed from that perspective.

An Leas-Cheann Comhairle

Before I call other Deputies who have been offering, I again remind the House that we have passed Second Stage, we are dealing with Committee Stage, and specifically, with amendment No. 1 to section 2 in the names of Deputies O'Donnell and Michael McDowell. I ask Deputies to address the amendment.

Ms F. Fitzgerald

During the course of the lobbying campaign on this Bill I was struck by how little those who lobbied me spoke about individual cases or showed much regard for the individual circumstances of women who go abroad for abortions or who might find themselves in medical crisis where there is conflict between their health and welfare and the pregnancy. As Deputy Shatter said, it is important for us to bring this debate to an individual level.

Will the Minister again consider my concern about the interaction between this information Bill and the judgment in the Supreme Court? Is it possible to go ahead with this Bill without taking further into account the judgment in the Supreme Court case?

Let us consider, for example, the case of a pregnant woman who has cancer and needs chemotherapy treatment because her life is at risk. If a discussion arose as to whether to proceed in terms of an abortion, or in the other direction in terms of continuing the pregnancy, in what position would her doctor be? I heard about a case recently from a medical practitioner where a question arose about induced labour. I understand there was disagreement between the doctors and nurses and certain individuals seemed to take the pro-life stance that the procedure could not be done because it was wrong and unlawful. The medical practitioner, on the other hand, was of the view that in terms of the woman's health, such treatment was necessary. That situation can arise quite often. How will a doctor, who comes across a case such as this, be affected by the sections which seek to limit the information aspect?

It is good that we are discussing this amendment and the consequences of the X case. What has been most striking since that judgment is the lack of discussion about its implications. There has been a sort of deathly silence in this regard. I congratulate the Minister on bringing in this Bill because we are having a debate on the reality for individual women who find themselves in difficult circumstances. Yesterday we heard about the case of an 11 year old girl who is pregnant which highlights many of these issues. The question of the legalities in this area must be addressed. I assume the Attorney General, contrary to what Deputy McDowell says, has already given advice on this and said we can proceed with the Bill. What will be the implications for doctors in circumstances I have described where they have questions about the legality of contact with other medical consultants and passing on medical information in such circumstances?

My main concern is about the interaction between this Bill and the consequences of the Supreme Court case which is what the amendment is trying to address. I would be surprised, however, if an amendment such as this was sufficient to address the complexities of that but I understand what the Deputy is trying to do in the amendment.

Mr. N. Ahern

I thank the Minister for his comments this morning which were reasonable and which outlined the problem as he saw it. He said he did not want any political point scoring and I regret that others have come into the House since then and engaged in that. I suppose it is a problem for all people on the Front Bench to restrain the wild men and women behind them.

Mr. Shatter

The Deputy has given his brother enough problems in the past few days without talking like that.

Mr. N. Ahern

This amendment seeks to capitalise on the confusion that arose from the X case. A comment was made about people straying into other fields. I am neither a medical nor a legal person but I am struck by the advice given to us by the legal profession that we should all keep to our area of expertise. They are quite happy, however, to stray into other people's areas of expertise. Doctors may disagree from time to time but medical decisions generally have a time limit on them and are eventually made. For legal people, the debate is endless and there seems to be no deadline. I accept that members of different professions become confused from time to time but the legal profession does not seem to have that problem and I envy them.

I agree with the Minister's comments that the amendments seek to drive a coach and four through the Bill. While I do not support the Bill, that is all that should happen at this stage. This issue has been kicked to touch and that works for a while but, sooner or later, another X case will arise. Many people were disappointed by the Supreme Court decision in that case — I realise we should not be critical of the Supreme Court — and the Supreme Court cracked under the pressure mounted at the time and joined in the national hysteria that overcame us all. Many people believe the Supreme Court decision is written in stone and that we must accept all its conclusions. It is reasonable to argue that one could go beyond that because the basis of that decision was the 1983 referendum. The court interpreted what the people decided at that time and if it has worked out in a way which the people did not intend, they should have another opportunity to decide on the issue.

I agree with the Minister that this issue should be dealt with by an all-party committee of the House. I do not know whether that should be set up before or after the Minister's group of experts examine the issue but it cannot be kicked to touch forever because when the next controversial case arises, there will be much hysteria which might result in legislation being rushed through this House. That is not the way to conduct our business. I hope the Minister has not been too upset by the events of the past week or two and that he will tackle the substantive issue because it will not go away.

I am a little concerned about what Deputy McDowell said. If the position following the X case is as clear as he says, anyone can have a legal abortion in the country and the case does not have to go to court.

Mr. M. McDowell

Not anyone, but anyone for whom there is a real and substantial risk to their lives.

Mr. N. Ahern

We all interpret the findings of the X case in different ways, but I wonder if the position is as clear as Deputy McDowell believes and if we will find out next year or the year after that abortions are being carried out here. On Deputy Fitzgerald's remarks that we should talk about individual women and about what we would do in certain circumstances, I cannot say that if somebody close to me was pregnant I would not be the first on the plane, but that should not deprive me of the right to speak. Legislation is about setting down standards, but we must distinguish between setting down a law and living by it; there is a difference. By talking about reasonable standards and what the law should state, you are not saying you swear to stand by it.

I thank the Minister for starting this debate on a calm note this morning and I hope that will continue. He has answered the amendment well. I hope he does not allow the matter to be kicked to touch for too long and that we will be back here no later than next year trying to tease out the problem. It will not go away, even people on the opposite end of the spectrum recognise that.

Mrs. T. Ahearn

For those of us who are not lawyers or blessed with intellect in that field, discussion on this amendment is very interesting. To say that it makes the whole issue even more complex is an understatement. Many comments have been made about men speaking on what is primarily a woman's issue, but I speak as a woman for whom it is possible to have an unwanted pregnancy. If I understand Deputy McDowell correctly, the conflict arises in that the Constitution guarantees the right to life of the mother where there is a substantial risk to her health as a result of pregnancy while the Bill disallows a doctor to make a referral.

There is a difference between a service and treatment. If I am diagnosed as having cancer when I am pregnant I would expect to be treated for cancer by the doctor. If a girl with an unwanted pregnancy goes to a doctor for information, the doctor will provide her with a service. The service provided for under this Bill is information and counselling, but the Bill draws a line in that the doctor cannot make a referral. Will the Minister say whether the lack of clarity as between treatment and service gives rise to the conflict that exists?

I welcome the fact that on Committee Stage issues are debated in great detail. Many of my colleagues have remarked on the certainty with which Deputy McDowell proposed this amendment, which is also in the name of Deputy O'Donnell. He referred to female backbenchers on this side of the House and what we think of the points made.

Mr. M. McDowell

I referred to the Minister's Fine Gael backbench colleagues; I never mentioned females.

Mrs. T. Ahearn

Why is the Deputy impatient with the Minister for not regarding his point with certainty? Why is it unbelievable that we might question it when he did not even succeed in convincing all the members of his party?

Mr. M. McDowell

It is Deputy O'Donnell's amendment.

Mrs. T. Ahearn

The Deputy's name has also been put to it. He spoke with such certainty and clarity that he gave the impression he would find it impossible for us not to accept his point of view. If the Deputy is so certain about this matter why did he not succeed in convincing the members of his party?

Ms O'Donnell

This is a Progressive Democrats amendment, not simply Deputy McDowell's amendment.

Mrs. T. Ahearn

I am speaking as a lay person, from a woman's point of view, and I hope the Minister will comment on the distinction between a service and treatment. I look forward to his response on all the points raised.

Mr. Noonan

(Limerick East): Lest anybody has doubts, and I do not think they have at this stage, I have no legal qualifications, and as Minister, I do not act as my own legal adviser. I rely on the advice available to me from the legal advisers to the Government. It is axiomatic that no Minister brings a Bill before the Dáil without having it constitutionally cleared by the legal officers of the State, particularly the Attorney General who confirms it is constitutional. It would be extraordinary for a Minister to bring in a Bill that the Attorney General had not said was constitutional. This Bill is put before the House on the basis that it is in accordance with the Constitution.

I have no problem teasing out particular sections of the Bill on Committee Stage — that is the purpose of Committee Stage — and I have no problem in asking the Attorney General for further advice on legal points raised. Some interesting legal points were raised this morning by Deputies on particular issues, such as whether they are consistent with the provisions of the X case or whether an amendment is necessary. I do not believe an amendment is necessary, but if I am advised it is, the one tabled here would certainly not be appropriate.

I bring my own expertise to these matters, as do other Deputies. I do not have legal expertise but I have a reasonable layman's knowledge of the judgment in the X case. In layman's terms that judgment stated that if there are real and substantial risks to the life of the mother termination should be provided in this jurisdiction. That is the net point, but the difficulty all of us face is: who decides what is a real and substantial risk to the life of the mother? This is where the supposed certainty which Deputy McDowell brings to the debate evaporates.

While we can be certain about the Supreme Court decision, we cannot be certain about what it means in an individual case. This amendment states: "Nothing in this Act shall render unlawful any words spoken or acts done in relation to the provision of `Act information' to any woman where the termination of her pregnancy would be lawful within the State", which means where there is a real and substantial risk to the life of the mother. It is then totally subjective to decide where is the real and substantial risk.

If we have identified a problem this morning, and I respect the legal opinions of Deputies McDowell and Shatter, both of whom bring a great deal of expertise to the area, this amendment does not solve it and if it is pressed I will oppose it. However, I will ask the Attorney General to consider the matter to see if there is any problem with the Bill arising from these arguments. If there is, I will report back on Report Stage.

A number of issues have been raised. This is where people of different professions, the butcher, the baker, the candlestick maker, the lawyer give very emphatic assurances of what people in other professions do. I do not think those in the medical profession who are involved in counselling a patient would behave as Deputies outlined this morning. If a woman's life is at risk as a result of a pregnancy, I do not believe a doctor would say, "This is it, you will die if you go to term and I would advise you very strongly to go and have a termination." I do not think that is the way it works. We must remember that we may not be talking about unwanted pregnancies. A woman whose life is at risk from a pregnancy is caught in a horrific dilemma. It may be a much wanted pregnancy but the physical risk to her life forces her to contemplate all options. In those circumstances it is a matter for the woman and her partner to decide and not for a medical practitioner, no matter how qualified, to force the decision on her by the strength of his advice. In my view all the medical profession can do is inform her of the options and the consequences, including, in the hypothetical case put forward, all the physical consequences of continuing with the pregnancy. The final decision must be made by the woman. For the medical profession to advise and push an option in the way a number of Deputies suggest is not what woman need or want from counselling. I believe counselling in that manner is fundamentally unsound. If the woman is pushed into a decision the consequences are immense. It may happen that the woman will decide to go ahead with the pregnancy in spite of her physical health. We all know of circumstances where women continued with a pregnancy in spite of the effect on their physical health because they wanted a baby. At the bottom line, it is the woman's decision but it has to be based on sound information. There is nothing in a Bill that prevents anyone from giving her sound information. Having made her choice, the medical profession must support her needs.

It is outrageous to suggest the role of the doctor is to tell the woman what she should do in those circumstances. His role is to give her the necessary information, down to telling her that if she continues with the pregnancy it is his expert opinion that she will probably die. It is still her choice. It must remain so.

I cannot accept the amendment but I appreciate that it has been put forward in good faith and that the legal argument it makes is being supported by different Deputies. I will have the legal point re-examined to see that it does not give rise to constitutional difficulties. I want a Bill as good as possible within the terms of the policy we outlined and the principle we agreed last night. I will consult the Attorney General on it but I will not ask him to accept this amendment because it is unacceptable. I would like the House to allow us accept that position and move forward.

Acting Chairman (Mr. McGrath)

I know it is an important point and everyone wants to speak but I ask Deputies to bear in mind that we are on amendment No. 1 and that the debate finishes at 10 p.m. tonight.

Mr. D. Ahern

I fully appreciate what the Minister has said on the amendment. Earlier I tried to make the point which he now accepts, in effect. Deputy Michael McDowell is to be complimented for tabling this amendment. It should not go unsaid that Deputy Shatter's comments on what I had said earlier are the sort of remarks that have brought the debate to where it is. I find this area particularly difficult as a parent of adopted children. I can fully appreciate the difficulties that pregnant women have and the difficulties they have with abortions but the way in which Deputy Shatter intervened saying that females can only speak on this issue and then literally walked out is not helpful. It was reprehensible of Deputy Shatter to ask what I would do in the case of a 12 year old pregnant girl. I do not know as I do not have the wisdom but whatever is done in circumstances of hard cases——

Miss Flaherty

Criminalise everybody?

Mr. D. Ahern

I never said to criminalise anybody, but at the end of the day it is up to the persons involved, with the advice of their doctor, to look at all the options. We should not necessarily be homing in on one aspect and deciding it is a fait accompli. My problem with this Bill is that it accepts that many leave our shores to have an abortion but I think we should be trying to intercept those people and offering them help and assistance. Rather than tying ourselves up in legal complexities, as we have tended to do on this issue, we should be trying to help these people and advising them of all the options. The way in which previous issues on this topic have been addressed has to a certain extent perpetuated a culture that is against the unborn. I say that with all due respect and as someone who has adopted children. There are hundreds and thousands of people who would dearly love to get children and yet they see this happening and the State doing nothing to prevent it.

My definition of information is different from that of a great many in this House. The giving of information as envisaged by some Members and as in this Bill in my opinion is not reducing the numbers of those who may seek an abortion or in any way assisting them in deciding on the options. I accept the Minister has responded in good faith and I think Deputy McDowell has put forward this amendment in good faith. I think it addresses the issue of the X case as regards this Bill. The flaw in this Bill is that we should be addressing the substantive issue rather than tinkering at the edges.

Mr. Hilliard

I acknowledge the sincerity of the Minister in bringing the Bill before the House. I accept his good faith and that his views may be no different from my own. We are speaking about the interpretation of the word "information" but may now be going into the broader area of interpreting Article 40.3.3º. The Minister said it would be foolish to bring forward those parts of the Bill without seeking the advice of the Attorney General. He sought his advice even though there is a court case pending. I assume the Attorney General is influencing any decision of the court which is wrong.

Acting Chairman

The Deputy should not allege that the Attorney General is influencing a decision of the court. I am sure he did not mean to do so.

Mr. Hilliard

That is correct. I would not wish to cast any aspersions on the courts. I am making the point the Minister made. The Bill is being rushed and a consensus has not been reached on it. Who decides that there is a danger to the mother? The Minister stated that it does not appear to him that doctors will make that decision. We are not speaking about abortion in any shape or form under Article 40.3.3º but about the right to life of the unborn and the equal right to life of the mother. That is now being diluted against the wishes of the majority of the people who voted for that.

Acting Chairman

The Deputy should address the amendment and not make a Second Stage speech.

Mr. Hilliard

I am trying to make a case as best I can. Three issues were decided in one referendum. On the first issue the people voted "no"; on the issue of travel they voted "yes" and on the issue of information they voted "yes". No wording was put before them and now the legislators must put a form of wording together which must be referred back to the people to decide on.

Acting Chairman

Does the Deputy support the amendment?

Mr. Hilliard

No.

Acting Chairman

Please speak to the amendment.

Mr. Hilliard

Deputy McDowell spoke for 25 minutes and nobody stopped him.

Acting Chairman

We are anxious to proceed.

Mr. Hilliard

The well-being of society can only be maintained if everyone works together for the common good. For Deputy Shatter to state that perhaps males do not have a right to speak on the issue is shocking. He has no right to make such a statement.

Miss Flaherty

I am satisfied with the Minister's response that he will ask the Attorney General to look at the issues raised again. I welcome that. We all remember the Bill dealing with matriomonial property which the Minister was assured was sound. It barely saw the light of day when it was promptly found unconstitutional. Clearly it is not a foolproof system and a second look at the issues raised would be welcome.

The amendment raises the substantive issue. There are other issues in it which try to respond to the substantive issue which probably are an appropriate way to do so. The substantive issue must be dealt with. The advice of a single doctor was taken in the X case. That area and the time at which to intervene to terminate the pregnancy are perhaps the only areas that require legislation. When people are ready for the substantive issue it will be legislated for, not without great turmoil, as a consequence of decisions taken twice by the people in the 1992 referendum where they decided that the right to life of the mother was to be protected to the extent that it had been interpreted in the courts.

There is no case for saying that the Bill is rushed. Day after day we were asked when the Bill would be before us. There cannot be much that the Opposition is happy about in having given up Government but perhaps this legislation——

Acting Chairman

The Deputy must please address the amendment.

Miss Flaherty

The Minister's response is adequate and I look forward to dealing with the matter on Report Stage when the Minister has had time to discuss the issues raised in this debate. Deputy Ahern was very upset and suggested that Deputy Shatter was not helping. Deputy Ahern wants to pass legislation but said he could not put his hand on his heart and say he intends to observe it. He needs to think a little more.

Ms O'Donnell

The Minister indicated that he will request the Attorney General to address the issue raised in the amendment. There is no evidence to date that he has addressed the X case and the implications of this Bill.

Mr. Noonan

(Limerick East): He has. I discussed it with him.

Ms O'Donnell

The Minister gave a commitment that he will return tomorrow on Report Stage with a review of the issues involved.

Mr. Noonan

(Limerick East): I am not committing myself to introducing an amendment on Report Stage. I am saying I will put the points raised, take the copies of the contributions from the Editor of Debates' office, and discuss them with the Attorney General to ascertain whether anything further is necessary in the Bill.

Ms O'Donnell

I thank Members who contributed on both sides of the argument, those who did or did not support our amendment, at least in principle, even if they cannot find their way to voting for it.

I have been very disappointed and mourn for the dearth of liberal voices on this issue today. As an Opposition Member, it is very strange to propose such an amendment without having the support of the main Opposition party, quite an unusual circumstance. Indeed, those from whom traditionally I would have expected to find support for this amendment, the Labour and Democratic Left Deputies, have not lived up to the expectations. I am very saddened that at least some of them could not have voiced some liberal commitment to and aspiration on women's rights on this amendment.

If the Bill is to be constitutionally sound, its provisions must integrate, be aligned with and complement existing law, as declared by the Supreme Court in the X case. It fails to do so. This Bill should not remove or diminish those rights, as declared by the Supreme Court. They cannot be postponed or transferred to a committee of this House; they are self-enacting and obtain since the decision in the X case.

What the Bill anticipates is that henceforth doctors can be expected to counsel a woman, in circumstances which pertained in the X case, or in any other life-threatening pregnancies, sit behind his or her desk but use objective language only and at no stage use subjective language in the most intimate of conversations. That is an unattainable direction to give any doctor, and it renders it a criminal act for any doctor to give advice that would in any way promote the termination of a pregnancy even if it meant that that termination would save the woman's life. All that it is anticipated a doctor can give such a patient under the Bill is a plethora of leaflets or a telephone card, even to a child who is pregnant. I consider that to be unsustainable, unjust, and we cannot endorse it.

The complexity of the issue is no excuse for running away from it. The raison d'être of the Legislature is to deal with such complex issues. The Attorney General must re-examine this section. The rights, as determined by the Supreme Court, are not postponable, they obtain, and this Bill will diminish those rights to any counselling a doctor may give a pregnant woman or any arrangements he may make on her behalf.

I call on Members to support this amendment. I had hoped to receive more support. It cannot be contended that an eventuality, such as I outlined, was not foreseeable. Indeed, this Bill is really like a leaking boat, has holes which will contribute to it sinking constitutionally. Along with Deputy Michael McDowell I have done my best to bring this matter to the attention of the House and the Minister. I look forward to there being a possible review of the advice of the Attorney General and the Government on this amendment.

Mr. L. Fitzgerald

Deputy O'Donnell said that the main Opposition party should be expected to support her amendment. That is not always the case. For example, is her party supporting it fully?

Acting Chairman

Can we adhere to the amendment before the House. please?

Amendment put and declared lost.

NEW SECTION.

Ms O'Donnell

I move amendment No. 2:

In page 4, before section 2, to insert the following new section:

"2.—Nothing in this Act shall render unlawful any counselling or advice tendered by a medical practitioner to any person where the medical practitioner in question believes in good faith that the giving of such advice is necessary in the best interests of his/her patient.".

This amendment seeks to deal with the special position of doctors. One of the most disturbing aspects of this Bill, in terms of beliefs from both sides of the spectrum, conservative and liberal, is the expressed concern at the insertion of criminality into the conversations, advices, meetings between a doctor and his or her patient, is the State seeking to interpose itself in the doctor-patient relationship. The doctor-patient relationship always has been one based on trust and confidence, a very intimate one, particularly within the context of a pregnancy, when it is of crucial importance that a patient should be able to speak freely to their doctor, secure in the knowledge that any information they impart would remain confidential. Doctors also should be able to advise their patients, in a manner they consider to be in the best interest of their patients.

For the first time in the history of the State this Bill seeks to introduce criminality into that most confidential or intimate relationship. The Government wants to instal the State into the doctor's surgery, to listen in on private conversations, to police and punish any advice or counselling given by a doctor in good faith that does not measure up to the required standard of "truth and objectivity" demanded in this Bill. For many years we have endeavoured to take the State out of our bedrooms but here the Minister proposes that the State should be installed in a doctor's surgery. What kind of a standard of truth and objectivity is that since, under the provisions of this Bill, doctors will be deemed to be criminals, liable to be struck off the medical register, if they fail to give the woman advice that is "truthful and objective" or in any way advocate or promote abortion?

If people could agree on what is "truth" about abortion, we would not be having this debate, it would no longer be controversial. "Truthful and objective" are words which defy interpretation. The Government has given doctors no guidance as to what kind of statements will convert them from being healers into criminals under the Bill.

On Second Stage I said my party was supporting this Bill, allowing us the freedom to table amendments. This and the first amendment, now lost, are crucial. We would like the Minister to give the integrity and inviolability of the doctor-patient relationship due consideration. We have a very good medical profession in this State, doctors and nurses of whom we are very proud and who have served us so very well over such a long period. However, it is unprecedented that the State should try to police words used between a doctor and his or her patient. The provisions actually state that the words used must be "truthful and objective"; it is a policing of words, of baffling proportions. In making this case for doctors I would have to say that it has been interesting that both liberal and conservative doctors have been singularly absent from this debate; bishops have had more to say in this debate than doctors.

The provisions of this Bill are absolutely crucial to the manner in which a doctor can counsel or deal with a pregnant woman, it is of enormous importance to their profession. I call on doctors to state their case and give some impression of what is going on in their minds. Quite apart from doctors, we are talking about womens' rights to the confidential relationship they enjoy with their doctors, that very intimate relationship which could not be more intimate when one is talking about a pregnancy, say, a conversation with a general practitioner or obstetrician.

I do not see how any Member can oppose this amendment, it is a minimalist measure simply seeking to ensure that words spoken — not even acts — between a doctor and patient are not rendered unlawful. This amendment is confined to discussions, advice, it does not say anything about picking up the telephone. The amendment does not deal with referral, it refers to conversations and seeks to ensure that words spoken by medical practitioners to their patients will not form the subject of criminal prosecution. The objective in the amendment is achievable. The amendment should be considered by all Deputies, particularly the Minister, and I remind him that it does not encroach into the area of referral. It merely seeks to remove criminality from discussions and advice given by a doctor to his or her patient.

Mr. O'Dea

I have some difficulty in supporting this amendment. I was rather surprised at Deputy O'Donnell chiding the main Opposition party for not supporting the previous amendment. We are not in the business of opposing amendments for the sake of opposing them because we are on this side of the House. We will support amendments if we believe in the logic of the thinking behind them and the case made for them. We did not see the logic in the previous amendment and I hope we do not support this amendment. I point out to Deputy O'Donnell that charity begins at home and in this case support for amendments should begin at home. If she cannot carry her party with her, she is badly placed to berate the Opposition on what it is doing. I agree with Deputy O'Donnell when she said that she could have expected support for the amendment from the Labour and Democratic Left benches when they were in Opposition and she would have got that support on the previous amendment in the past, but the position has changed as those parties are in Government and different considerations apply.

Deputy O'Donnell said that there was an insertion of criminality into the Bill by the Minister. A sanction has been included in the Bill. The Bill provides that information about services legally available abroad shall now be available in this country in certain circumstances and certain conditions have to be fulfilled. If we want to ensure that those conditions are implemented and people obey the law, some sanctions must apply. I apologise if I am ministerpreting the objective of her amendment. Section 5 imposes certain obligations on doctors when counselling. They can give advice on the option of availing of services legally available abroad provided it is accompanied by advice on other options and they do not advocate that a patient should avail of services abroad in preference to other options. If Deputy O'Donnell's amendment is accepted, it would appear that doctors could say they did not obey the conditions in the Bill, deliberately advocated a particular service and did not counsel on other options because they believed in good faith and subjectively that that option was in the patient's best interest. There may be a certain logic in that, but I believe the conditions in the Bill regulating how information is given will vanish and there will be no possibility of any sanction being imposed if this amendment is accepted. All the safeguards in the Bill, with which I agree, will collapse like a house of cards. The effect of the amendment will be to drive a coach and four through the safeguards in the Bill and I would not agree with that. Regarding the insertion of criminality into the Bill, if conditions are included which state that people must do certain things, a sanction must apply if they do not comply with those conditions.

Mr. Noonan

(Limerick East): I find I am in the unfortunate position of having to agree with the bulk of what Deputy O'Dea said.

Mr. O'Dea

That is a first.

Mr. Noonan

(Limerick East): In effect the amendment states that in a doctor-patient counselling relationship the doctor, if acting in good faith, may give any advice he or she believes is in the best interests of his or her patient. That goes way beyond what is allowed by the code of medical ethics and what we are required to do. It runs counter to the obligations imposed on us by the 1992 amendment in Article 40.3.3º. The information amendment in Article 40.3.3º provides that we shall not limit the freedom to obtain or make available in this State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state. The amendment suggests that we are not going to lay down the conditions by law, but apply the ancient Irish theory of doctors looking into their own heart and deciding what is good for the patient. That is what an eminent legal expert calls the “cardiovascular vision” which people with great insight have when they know what is good for other people. Effectively, the requirement written into the text of the constitutional amendment is that we lay down the conditions in law. The effect of this amendment means that there would no be conditions in law and the general practitioner could decide what is in the best interest of the patient.

There is a constitutional requirement that any legislation enacted on foot of the constitutional amendment would regulate the provision of information. The proposed amendment would have the opposite effect in so far as it would grant to each individual doctor the right to interpret the Constitution as he or she saw fit. That would go far beyond the code of medical ethics and would result in as many laws as there are doctors. Civil law cannot operate on that basis.

The same principle underlying the proposed amendment, if applied to other areas of medical practice, would mean, for example, that individual doctors would have the full protection of the law if they felt that, say euthanasia, was in the best interests of the patient. I am not trying to raise the temperature or suggest that anybody is advocating euthanasia or anything like that. If a law allowed doctors to decide when counselling patients to advise what they thought was in the patient's best interests, a doctor treating an elderly patient with a terminal illness suffering pain could advise that it was in his or her best interest to end his or her life by taking a bottle of tablets. That cannot be allowed. The patient-doctor relationship is not sacrosanct or ring fenced from law. It is not the case that we are trying to intrude criminal sanctions into the patient-doctor relationship. Doctors, like everybody else, must live by the law.

I will put another analogy to Deputies. Take the case of a woman with a broken arm and a black eye who tells her doctor that she is having difficulty with her husband, that he beat her again last night and she would like to be counselled on what she should do, whether she should stay with him for the sake of the children, leave home or consider another option. Her doctor, who is concerned about her position, looks into his heart and decides because her husband has beaten her so often that the only valid advice he can give her is to get rid of him and advises her to give him tablets in his cocoa. We cannot have that situation. People may consider that an offensive and ludicrous parallel but I make that point because a case has been made as if for some reason or another the provisions of law do not apply in cases where a doctor advises a patient and for the first time in history this awful Minister is intruding the sanctions of criminal law into that sacrosanct relationship. That is not the position. We cannot have as many laws as there are medical doctors. We cannot have as many laws and interpretations of them as medical doctors decide are in the best interests of individual patients. We cannot allow that in this case.

Sanctions are provided in the Bill. There is no point in introducing regulations if they are not backed up by sanctions and penalties. The sanctions and penalties in the Bill are mild but any legislation which seriously seeks to regulate the manner in which people behave must be prepared to enforce policy. Enforcement of policy requires procedures and sanctions. I cannot accept the amendment on these grounds because they run counter to the requirement in the Constitution.

Mr. L. Fitzgerald

Now that I have the opportunity to address the remarks by Deputy O'Donnell in relation to the attitude of the Opposition to any amendment that comes down, I feel, like Deputy O'Dea, that support for amendments should come first from the particular party.

Acting Chairman

Let us move on with the amendment, please.

Mr. L. Fitzgerald

I am entitled to say it since the remark was addressed to my party.

Acting Chairman

That has already been said on your behalf.

Mr. L. Fitzgerald

I listened to Deputy O'Donnell very carefully elaborating on her amendment but she understated its implications because there are very wide implications to the wording which is not tied up in legal or medical language that I might have difficulty in interpreting. The wording says that "nothing in this Act shall render unlawful any counselling or advice tendered by a medical practitioner". That is very straightforward English and my interpretation is that a doctor will be given a licence — if this amendment is accepted by the House — to, as Deputy O'Dea and the Minister said, look into his own heart and ask what is the best advice he can give. In other words he can give directive counselling and the licence is there to do so in the case of this amendment. Deputy O'Donnell did not spell that out, or if she did I did not hear her.

Ms O'Donnell

It is self-explanatory.

Mr. L. Fitzgerald

To me that is giving a licence for directive counselling and it is literally saying to throw the Bill out the window, give freedom to doctors and get rid of all safeguards and regulations. I agree wholeheartedly with the Minister when he says that the regulations in this Bill are quite mild. I would like to see much stronger regulations and safeguards but really in a simple literal interpretation we are asked to cast all regulations, rules and safeguards aside. I certainly would be very much opposed to that.

Every profession, when one legislates for it, needs to have built into that legislation safeguards for its own sake as well as for the consumers who are availing of its services. I have no apologies to make for supporting the provision of safeguards and rules and regulations. No profession should be exempt from rules and regulations as nobody has a monopoly of wisdom on all aspects of decision-making in relation to a professional service. This is an extreme and wide-ranging amendment, and I am strongly opposed to it.

Mr. M. McDowell

I agree with some things that have been said about not allowing the medical profession to write its own law. However, all Deputy O'Donnell's amendment is saying is that nothing in this Bill should render unlawful advice or counselling given by a doctor in good faith to a patient. It is only saying that the provisions of this Bill which deal in section 5 with those matters should not supervene and overtake a doctor's advice to his patient if the doctor in good faith believes that that advice is necessary in the interests of his patient's safety and welfare.

Mr. Noonan

(Limerick East): That is not what the amendment says.

Mr. M. McDowell

It does.

Mr. Noonan

(Limerick East): It does not confine it to the information under the Bill.

Ms O'Donnell

It says "in this Act".

Mr. M. McDowell

It says "nothing in this Act". Will the Minister read the first three lines?

Mr. Noonan

(Limerick East): Yes, go on.

Mr. M. McDowell

It says "nothing in this Act shall render unlawful...". If it is unlawful, apart from the Bill, it is still unlawful. It is just saying that this Bill does not render it unlawful. Deputy O'Donnell is not bringing in naïve, open-eyed amendments to say that doctors can do anything they like in their surgeries, or tell anybody to do anything they like with themselves. She is saying no such thing; she is making a more subtle point, that the obligation under section 5 should be overridden by a view that a doctor who is giving advice on the basis of the doctor's best opinion as to his or her patient's medical needs should not be criminalised. That is not the extreme proposition which Deputy Fitzgerald canvassed.

The Minister might now on reflection, take a look at the words "nothing in this Act shall render unlawful". It is merely to say that the provisions of section 5 — which tell a doctor that he must do this and that, and that he cannot advocate abortion in any circumstances — do not override a decision made in good faith by a doctor as to the medical needs of his patient.

The question of whether advice to a patient that she should have an abortion is legally tenderable has been debated before and I am not going back to it. However, it is a matter of fact: a doctor can advise a patient that she ought to have an abortion and there is nothing wrong with doing that in Irish law. He can advise a patient to have an abortion if it would be a lawful abortion. There is nothing in Irish law which says that he cannot advise a patient to exercise her constitutional rights to have an abortion. I do not believe that it is right for this House then to say to a doctor in a surgery "You cannot advise somebody to do something which they are lawfully entitled to do. You must be a neutral observer." Why do we suddenly say in relation to one particular thing that a doctor cannot exercise his or her judgment in favour of the patient's welfare and safety? What is it about this issue that we suddenly impose a new criminal responsibility on a doctor for giving advice when in every other respect a doctor is required to give advice?

That is what, to some extent, I find so repugnant about this Bill and why I voted against it on Second Stage. It is an effort by this House to tell doctors that they may not advise Irish women to avail of their constitutional rights. They may not in the patient's best interest and in accordance with their best judgment advise them specifically on what they should do. We are faced with real situations. It is all very well for the Minister to say that this is airy fairy stuff; it is not. This is real practical stuff. "What would you do if you were me, doctor?", "What do you think?", "What would you do?", are the kind of questions frequently put to doctors. Section 5 is saying "Well now, I had better get out the list and tell you all the available options." The patient asks "What would you do if you were in my situation?", and the doctor says, "I cannot help you. I have explained it all to you before." If she has a constitutional right to an abortion it seems to follow that she is entitled to have a medical practitioner advise her, in good faith, to the effect that she should or should not take one step or another. She is so entitled. This is the curious irony which exposes the shabby nature of the Bill. She is entitled to go to a barrister——

Ms O'Donnell

Or a TD.

Mr. M. McDowell

She can come to me, as a TD or a barrister, in either capacity, and ask what she should do, and I am entitled to tell her to have an abortion, that, in my view, she has a constitutional right to an abortion because her life is at risk. She is entitled to go to any Joe or Josephine Soap in the street and seek advice from that person. People are entitled to come up to her in pubs and proffer their advice in her situation having heard about it in local gossip but the one group of people criminalised for expressing an opinion on the matter are doctors and counsellors. How can that possibly be just? Why is it that everybody else — people to whom section 5 does not apply — can offer any old advice that comes into their head and urge this or that course on any woman they meet, but that a doctor from whom the woman has sought advice — going back to the oncologist case — cannot give positive advice to have an abortion without committing a criminal offence? Why is that the case? Why is it proposed by the Minister that we select from all the groups who might tender advice — from lawyers to political activists to members of "right to choose" campaigns — people who have expertise and a confidential relationship with their client, the doctor, on whom the family has come to rely and trust and in whose judgments they have faith? If that person tenders positive advice for an abortion he or she commits an offence. Curiously, as the Minister's explanatory leaflet points out, if the doctor tenders positive advice against an abortion that is perfectly all right.

The one thing a doctor cannot do is make a suggestion to the effect that the patient should have an abortion. I do not wish to go back over the earlier debate but if it is true, as a result of the X case — I believe it is undeniably true although people have said to me in the debate that I am dealing with far too much uncertainty — all I can do is look at the judgment and ascertain what the Supreme Court said it was deciding, not what I say it was deciding. It says it is lawful for an Irish woman, in certain circumstances, to have an abortion in Ireland or abroad. It is not right and cannot be correct that a doctor cannot advise a patient to avail of her constitutional rights. I cannot see how it can possibly be argued that a person can have a right to do something to preserve their own life but may not be advised by the one person who is most likely to tender sound advice to the patient on the issue and most likely to know, compared with any other person in the community, the patient's genuine requirements.

I am not worried whether Fianna Fáil, Democratic Left or Labour support the amendment. I agree with Deputy O'Donnell that most Members should have no difficulty with this amendment. It is clear from what has been said by the Minister and Deputy Fitzgerald that rejecting this amendment means consciously intending to criminalise any doctor who tells a woman to have an abortion, on his best opinion of her position, even though that is her constitutional right. That is what this Bill is doing and that is what this amendment is trying to prevent becoming a crime. I do not see how it can be objected to as something wrong or putting a coach and four through the Bill.

If the Bill is referred to the Supreme Court under Article 26 it is highly likely that this debate will be considered by the Supreme Court. It is interesting that some Deputies in the House are going on record as saying they do not follow the X case, do not want to be bothered by its contents now and that maybe somebody should examine it in two years' time.

Mr. O'Malley

It reminds one of the Duggan case.

Mr. M. McDowell

Even though some people may not be happy with the X case — I accept there were people who thought it was a controversial decision — it is the law of the land. Women are entitled to abortions in certain circumstances. How can it possibly be right to criminalise a doctor for advising a woman positively to avail of her constitutional rights if the doctor believes her own safety requires it? I cannot understand for the life of me how people think this is driving a coach and four through the Bill. It is not, it is standing up basically for women's rights. If a woman has a right to save her own life or take steps to terminate a pregnancy to avoid a real and substantial risk to her life, she has a right to be advised she should do that. There is no law in this land that has a right to say to a person advising her that that person must refrain from using his or her best judgment to assist a woman.

The Minister is making a fundamental error. He believes the woman can make a sound decision on the basis of a doctor reading out objective advice to her, that the doctor, who has a far better grasp of the threat to her life, should remain non-judgmental but that she should make the judgment by herself. It is all very well if one is talking about highly educated or sophisticated people who can think calmly about their position. In this case we are talking about a wholly different situation: people who are confused and frightened and who want to know their doctor's best opinion of what they should do.

I reject it as contemptible that anyone should say to a woman in those circumstances — even though she has a right to have an abortion to safeguard her own life from a real and substantial risk — that her doctor would commit a crime if he told her that was his advice to her. That is obnoxious. I really think it stinks. I cannot think of any words strong enough to convey my feeling that we are dealing with women here in a demeaning way. We do not say in any other area that any professional adviser may not advise his or her client to do something which the client is entitled to do. We do not say it of lawyers, engineers, architects etc., but we say it suddenly in the case of a doctor. We say that that doctor cannot advise a woman who is in difficulties, for one reason or another, of his positive view of that woman's best interest. I regard that as deeply offensive. The Minister seems to think this Bill is academic, that he is not dealing with real people. I am talking about real people who go to a doctor.

Mr. Noonan

(Limerick East): Does the Deputy ever meet real people?

Mr. M. McDowell

I can assure the Minister I meet an awful lot more real people than he appears to meet. I have dealt with people, the likes of whom the Minister will never meet.

An Leas-Cheann Comhairle

Let us address the amendment and try to make progress. This is more like a Second Stage speech.

Mr. M. McDowell

With the greatest respect, the reason we are in a hurry is that the Minister is in a hurry to get this off his desk.

Mr. Noonan

(Limerick East): I am not in any hurry.

Mr. M. McDowell

I am willing to be brief but I also intend to make the point because this House is averting its gaze from the real implications of what it is doing. It is saying to women: "you do not really matter and your rights, as declared by the Supreme Court, do not really matter and if any doctor advises you to exercise your constitutional rights he commits an offence because he did not also tell you to do other things at the same time". That is a massive and sad intrusion on people's entitlement to have the best advice from their general practitioner or medical adviser, in accordance with their safety as a patient. I cannot over-emphasise that this is not a matter of a dry debate one Thursday lunchtime in this House.

We are putting in place a law which is supposed to last for years. What we are dealing with here is women's rights and their right to life. The Minister is saying it is all right with him — and Deputy Fitzgerald seems to agree — that a woman who has a constitutional right to terminate her pregnancy may not be advised by a doctor, who knows all the circumstances, when she asks him for his opinion, that she should proceed to have an abortion. It is flabbergasting as a proposition and the Minister should think long and hard about putting in place any law which has that effect. It is completely wrong to require a doctor who believes a woman should have an abortion, who knows the woman has a legal and constitutional right to have an abortion, not to advise his client to avail of her constitutional rights but can give her any other advice. Any person on the street can give her advice but if the doctor advises her to avail of her constitutional rights he commits a criminal offence. That is wrong.

Mr. Noonan

(Limerick East): Deputy McDowell always raises the Richter scale of rhetoric and colour when his argument loses logic. Having suddenly discovered from my reply that there is no merit in the amendment and that there is a great big hole in the centre of it, he back-tracked to argue in favour of amendment No. 1. He forgot to mention one right in his fantastic piece of rhetoric, that is the constitutional right to life of the unborn child. If he factored this right into this argument he might realise why regulations are being introduced. It is not a case of a woman telling a dentist she has a toothache and him telling her she should have the tooth extracted. We are dealing with the serious issue——

Mr. M. McDowell

Of life.

Mr. Noonan

(Limerick East):——of competing rights to life. That is why we have to be very careful and introduce regulations.

In arguing against section 1, Deputy McDowell spoke as if the generality of pregnant women had a constitutional right to abortion.

Mr. M. McDowell

I never said anything of the sort.

Mr. Noonan

(Limerick East): They do not have this right.

Mr. M. McDowell

I read the decision in the X case and the Minister seemed to be a stranger to it.

Mr. Noonan

(Limerick East): I am not a stranger to it. The Deputy's argument seems to suggest that somehow or other the majority of pregnant women who visit their doctors have a constitutional right to abortion——

Mr. M. McDowell

I never said anything of the sort.

Mr. Noonan

(Limerick East):—— and that under the Bill we are preventing doctors from helping them to vindicate that constitutional right. That is not the position. The adjudication in the X case was that there is a constitutional right to an abortion in circumstances where there is a real and substantial risk to the life of the mother. That is a restricted right and no method was suggested by the Supreme Court on how that should be adjudicated on or who should adjudicate on it. It is not true to say that the Deputy, a senior counsel, could advise a woman who visits him that she had a right to an abortion on constitutional grounds. The Deputy does not have the medical competence to decide that there is a real and substantial risk to her life.

Mr. M. McDowell

Look at the medical reports.

Mr. Noonan

(Limerick East): The Deputy said that the local barman could give her advice, but that is not true.

Mr. M. McDowell

It is.

Mr. Noonan

(Limerick East): I want to get back to first principles. In the X case it was decided that a woman had a right to an abortion if there was a real and substantial risk to her life but it did not go on to say that this right could override other rights in the Constitution. In the context of first principles, under the Constitution the unborn and the mother have an equal right to life. Those rights can only be vindicated in a manner which does not transgress the freedom to information and the right to travel given in the 1992 referendum. That is a narrow path to follow and it is not true to give the impression in colourful oratory that pregnant women have a general right to get an abortion.

Mr. M. McDowell

I never said anything of the sort.

Mr. Noonan

(Limerick East): That is the impression the Deputy has given. Even if one takes it in its most restricted sense, the Deputy never referred to the constitutional right to life of the unborn, which we must seek to protect and vindicate in legislation. The Deputy has exaggerated the position. It is worth examining the points he made under amendment No. 1. However, having realised that amendment No. 2 is a non-runner he re-argued his case for amendment No. 1 in the most forceful language.

On the question of non-directive counselling, it is not proper for a doctor to advocate or promote a certain course of action to a woman who is trying to make up her mind on whether she will carry her child to full term.

Mr. M. McDowell

Why not?

Mr. Noonan

(Limerick East): It is the woman's decision and she must not be coerced into taking a certain course of action.

Mr. M. McDowell

We are talking about 12 year-old children. Does the Minister have any idea of what he is talking about? We are talking about 14 and 16 year-old girls, some of whom have no education.

An Leas-Cheann Comhairle

The Minister without interruption, please.

Mr. Noonan

(Limerick East): We might be talking about 12 and 14 year-old girls, but all citizens have constitutional rights which cannot be transgressed by any other citizen. I am not a lawyer and I am speaking in layman's terms, but one of the central principles of the Gillick case was that the authority of parents and guardians diminished as one got older and that as children approached maturity they were in a position to make these decisions for themselves. The girl in the Gillick case was underage — I forget whether she was 14 or 15 years — and it was decided that she had a sufficient level of maturity to make the decision for herself, and this was carried all the way to the House of Lords.

Mr. M. McDowell

It was not without advice.

Mr. Noonan

(Limerick East): There was counselling.

Mr. M. McDowell

Non-directive counselling.

Mr. Noonan

(Limerick East): I do not want the impression to go out from this House that under the Constitution a doctor can decide that there is a real and substantial risk to the life of a pregnant woman and advise her that she has a constitutional right to a termination without ever mentioning the right to life of the unborn which is guaranteed under the Constitution. These are competing rights to life. This is a very complex and complicated matter and the Deputy is not being fair in pretending that it is as simple as he is trying to call it. The Deputy is one of the most prominent senior counsels in the country — he is recognised as an expert in law — and he is using his skills to back up weak arguments while ignoring the right to life of the unborn which could be totally in conflict with the constitutional rights of a woman. Neither the butcher, the baker, the candlestick maker, a GP or a senior counsel is in a position to tell a woman that she has a constitutional right to terminate her pregnancy. That is why we need statute law arising from the X case.

Mr. M. McDowell

The Minister is not going to bring it in.

Mr. Noonan

(Limerick East): How can I? The Deputy has said it is impossible to do so. Unlike my predecessors, I am at least making some progress, I am facing these issues head on and setting out clearly what I can and cannot do. The Deputy should not use his skills as a senior counsel to argue that these very complex matters are child's play, that if there was good will in the House any of us could deal with them.

Mr. N. Ahern

The Minister has made the case against the amendment better than I could. The amendment is based on the X case and the Deputy's certainty that women have a constitutional right to have an abortion under the decision in that case. While he may have been referring to the one in a million case, he gave the impression that all women have this right. This legislation follows from the 1992 referendum and the provisions in the amendment would breach the undertakings given in regard to referral.

I agree that there has been very little feedback from the medical profession on the legislation. Some doctors also work in hospitals and if we had not taken Committee Stage immediately after Second Stage they might have had an opportunity to make known their views.

Ms F. Fitzgerald

Deputy McDowell referred to directive counselling given by doctors. It is important to refer to the value of non-directive counselling. From my experience as a social worker, if people are given full information they arrive at the best decisions themselves. I support the Bill because it will allow women to receive proper counselling on all the options. Many of the medical points to which the Deputy referred would be dealt with in the counselling a doctor would have to give to a patient under the terms of the Bill. There should be greater focus on developing the counselling aspects of the Bill and ensuring that counselling is as non-directive as possible. While there is still scope for directive counselling in some areas, in the doctor-patient relationship we have moved away from the position whereby doctors tell patients what they should do. There is now much more dialogue between patients and doctors and most people want to know the pros and cons of treatment. They want the doctor and patient, together, to arrive at a decision on the best possible treatment.

The services available to women under the Bill could be open to abuse. We must examine the ethos of the various counselling services and women must know what is on offer. Non-directive counselling is vital in this area. In the case of an 11, 14 or 16 year old, the girl and her parents must arrive at a decision rather than have it imposed on her by a doctor.

Ms O'Donnell

In this amendment I sought to protect the integrity of the counselling process, including the non-directive aspect, because there is an insertion of criminality in respect of conversations and advices which flow from a doctor and his or her patient. The provisions place doctors in an invidious position. The Bill attempts to police the counselling process and define conversations. There are dangers in trying to police what is truthful and objective. Truth and objectivity, no matter what we say here, in a subjective relationship between doctors and clients, is a movable feast. I am beginning to believe I was mad to raise this point. Notwithstanding that, I am still concerned about the insertion of criminality in respect of conversations and advices between doctors and patients. To penalise a doctor for words used in the context of a confidential doctor-patient relationship is wrong. In the past extreme groups who wanted to test the constitutionality of cases involving the right to life of the unborn — I acknowledge that the unborn has a right to life — sent spies into doctors' clinics and waited as agent provocateurs to hear the tone of their advice. In the same way as the doctor may advise a patient against abortion, he or she may not advise the patient to have an abortion. Even in terms of non-directive counselling, there is still a concern——

An Leas-Cheann Comhairle

We are dealing with information, not counselling. That will arise under section 5.

Ms O'Donnell

This section relates to section 5 which deals with counselling and the advocacy of abortion information.

While this amendment protects the integrity of the counselling process, it does not attempt to legalise making appointments. It is confined to advice and counselling. It does not deal with referral and that is why I raised the matter. There is a danger that we are inappropriately inserting criminality in respect of private relationships in terms of words spoken and this could be abused by people wishing to criminalise doctors. If this amendment is not accepted we are sowing the seeds of a doctor X case. The amendment provides us with an opportunity to address that possibility and it is regrettable there is not more support even for the principle I espouse.

Mr. O'Malley

I may not have been in the Chamber this morning, but I listened to the debate on the monitor and it strikes me that the logic of what Deputy McDowell stated on this amendment is absolutely correct. His argument was attacked but not because fault was found with its logic. It was attacked by attributing to Deputy McDowell statements and attitudes he neither made nor took. Unfortunately, there is always a degree of personalisation whenever Deputy McDowell makes a logical argument and Members find it difficult to respond.

Deputy McDowell's logic may chill many people both inside and outside this House, but that does not render it invalid or inaccurate. It is crazy that, if this amendment is not accepted, under the Bill a doctor can be prosecuted and convicted for telling a patient that she would be wise to exercise what, in certain circumstances, is her constitutional right. If this proposition is examined by the Supreme Court I fail to see how it could be upheld. I fail to see how a citizen could be convicted for telling another citizen that he or she might be well advised to exercise certain rights which have been found by the Supreme Court to exist under our Constitution. It may be difficult for the Minister and others to leave Deputy McDowell out of this, but that is what they should do.

Mr. L. Fitzgerald

We would prefer to.

Mr. O'Malley

Let us look at the logic of what he is saying. That is incontrovertible. There is no point in sweeping this under the carpet with all the things we have sought to sweep under the carpet over the years. I thought Deputy O'Donnell summed up an aspect of this Bill very well when she said that for years the law sought to intrude itself into the bedroom — it was slowly and painfully extracted over 15 years. One of the reasons I am here as a member of an independent party is that I said that the law had no place in the marital bedroom. That is why I and the two Deputies beside me are here making these arguments. I was upbraided and derided in those days, in the same way as Deputies McDowell and O'Donnell are today. Deputy O'Donnell said that for years the law intruded into the marital bedroom. We finally removed it, but we now have it in the medical surgery — it is not so much that it is there but that we are trying to put it there. That is not a reasonable step to take. It will cause huge angst and hold the country up to ridicule for years to come.

The Minister and others may be uncomfortable about Deputy McDowell's argument, but they cannot contradict it and, if they cannot contradict it, they had better take it into account and had better not legislate flying in the face of it. I read a big headline in the papers this morning that this Bill will be referred by the President to the Supreme Court. If the newspaper reports are correct, she proposes to call a meeting of the Council of State next week — she has to consult them before she makes a referral under Article 26 and she is not bound by their views. The President must have made that decision yesterday if it appears in today's papers. She would, therefore, have made the decision even before this House voted on Second Stage. I do not want to attribute any views to her because I do not know her precise views, but on the basis of the public record it would seem that she has the gravest doubts about the constitutionality of different aspects of the Bill, as I do.

Mr. Noonan

(Limerick East): It is outrageously out of order to attribute views to the President who has not said a word about this Bill.

Ms O'Donnell

He is at pains not to attribute views to her.

Mr. O'Malley

If I read a large headline across the front of today's papers to the effect that the Council of State is being called next week——

Mr. N. Ahern

Before the Bill is passed.

Mr. O'Malley

——for the purpose of discussing a referral of this Bill, I must assume that people who shall be nameless have certain doubts which are obvious. It is unreal for the Minister to suggest that such doubts do not exist.

An Leas-Cheann Comhairle

I reiterate that there is a long-standing tradition in this House of not mentioning the President.

Mr. Noonan

(Limerick East): He attributed views to her as well.

Mr. O'Malley

Leaving anybody who is resident in the Phoenix Park out of it, I could confidently assert that a great many people in this country have grave doubts about the constitutionality of different aspects of this Bill. If it is not referred, aspects of it will certainly be challenged. Because of its nature, the approach taken in it, the extraordinarily restrictive attitude of some of it, the anxiety to criminalise even the most innocent and most proper relationships, this Bill must be open to great challenge and must leave in its wake a legacy of litigation and difficulty. It may well leave a residue not very different from the unfortunate residue in the wake of the 1983 constitutional amendment.

Mr. Noonan

(Limerick East): We are dwelling on one point, but there are a couple of points that have not been mentioned. There is a constitutional right to life of the unborn child and an equal right to life of the mother, and these can be in conflict. This debate is unbalanced because it does not deal with the constitutional right to life of the unborn child. I do not advocate that people make Second Stage anti-abortion speeches but, in any legal argument about the regulatory sections of this Bill, it is only fair to take into account that there are circumstances in which there is a conflict of fundamental constitutional rights. The debate is also proceeding as if there is no statute law and as if, for the first time, I am introducing statute law on the issue of abortion. The 1861 Act has not been mentioned yet, and that applies to doctors as well as to everybody else. To talk about the Minister intruding criminality into the doctor-patient relationship for the first time without mentioning the 1861 Act is not the best practice in the debate. If we are to debate this issue, let us debate the competing constitutional rights to life enshrined in the Constitution, and let us also debate the existing statute law. Then the House will see the difficult task that faces me in bringing forward an information Bill, which does not purport to be anything other than a Bill in accordance with the Freedom of Information (Amendment) 1992 to regulate the manner in which that information would be provided. This is not some kind of magnum opus, although it has generated enough emotion to be so. It is not the only law around. That should be taken into account as well.

Question: "That the new section be there inserted" put and declared lost.

Amendment declared lost.

An Leas-Cheann Comhairle

Amendment No. 3 in the names of Deputies O'Donnell and McDowell has been ruled out of order as it involves a charge on the revenue.

Mr. M. McDowell

On a point of order, is it seriously suggested that that involves a charge on the revenue?

An Leas-Cheann Comhairle

Yes indeed, Deputy.

Mr. M. McDowell

That is a joke.

Amendment No. 3 not moved.

Section 2 agreed to.

SECTION 3.

An Leas-Cheann Comhairle

Amendment No. 4, in the name of Deputy Máire Geoghegan-Quinn and amendments Nos. 6 and 7 form a composite proposal. Amendment No. 5 is consequential on amendments Nos. 4 and 6. It is suggested, therefore, that amendments Nos. 4 to 7 be taken inclusively.

Mrs. Geoghegan-Quinn

I move amendment No. 4:

In page 4, subsection (1) (a), to delete lines 25 and 26.

I welcome the fact that the Minister has indicated that he will be prepared either to accept some of the amendments as drafted, to have them amended on the advice of the Attorney General or table his own amendments on Report Stage to meet our desires and wishes. On amendment No. 4, Members on all sides of the House made the point on Second Stage that the most important step we can take to reduce the number of women who decide when faced with a crisis pregnancy to go to the United Kingdom for an abortion is to ensure that as many as possible can avail of counselling services. It is important that information should be made available to a woman who finds herself in that situation on a one to one basis.

People on both sides of the argument, especially those who are pro-choice and, like Deputy McDowell, strongly disagree with this legislation on the basis that it does not go far enough, have stated clearly that it is vital the information and counselling should, so far as possible, be provided by professionals. The Minister's proposal whereby "Act information" may be provided orally at a meeting to which the public has access, whether on payment or free of charge, is much too wide. I wish to ask him a number of questions so that he can clarify the matter for me.

What constitutes "a meeting"? Are we talking about a public meeting attended by several hundred people or by a much smaller number? Are we talking about confining it to a specific place or area? Who will give the information at such a meeting? Will it be given by someone with counselling and professional experience or by someone who has no interest in the use to which the information is put?

People on both sides of the argument wish to ensure that information is given by qualified professionals only. I fail to see how we can control the giving of this kind of information if we allow it to be given orally at a public meeting. This undermines the argument advanced by Members on all sides of the House about the need for counselling.

I am not trying to limit the debate on this issue. We all accept it is difficult to have a reasoned debate. During the course of the debate on Second Stage yesterday tempers became frayed. People hold different views which may be polarised but we should not be apologetic. This happens in every country in the western world when this issue is debated. I do not want to limit the debate. It has to take place at public meetings, in the media and this House.

I fail to see how we can ensure that "Act information" will be given by qualified professionals only if it may be given orally at a public meeting. Perhaps the method proposed in the amendment is not the best way to address the issue but I ask the Minister to explain how the giving of information may be controlled if it may be provided in an uncontrolled way at a public meeting to which everyone will have access, including young children and adults. While I do not want to limit the debate we are undermining the argument advanced by Members on all sides of the House that information and counselling should be provided by professionals only.

Mr. Noonan

(Limerick East): Sections 3 to 5, inclusive, regulate the manner in which information may be given. Section 5 regulates the manner in which information may be provided on a one to one basis by a counsellor, adviser or doctor under certain conditions. Section 4 prohibits the provision of unsolicited information. In plain language, it bans the provision of information on billboards, in free hand-outs, newspapers and so on. Section 3 permits solicited information.

The provisions on counselling provided on a one to one basis are easy to understand. We are all familiar with the term "unsolicited" but the meaning of "solicited information" is not as blindingly obvious as the meaning of the other terms. The best way to describe it is that it is the opposite of unsolicited information. In other words, in any case where a choice is exercised the "Act information", under section 3, would be legal. If a woman selects a woman's magazine rather than another, she is exercising a choice. In that sense she is soliciting particular information. If the magazine contains an advertisement for an abortion clinic in the United Kingdom she has exercised the choice. When she sees that the magazine contains advertisements of this kind she can buy a different magazine the next time. The same applies to newspapers, periodicals and so on.

It is clear that a public meeting, regardless of size, falls into the category of solicited information because a person is free to attend and he or she makes a conscious choice to do so. The provisions would not allow group counselling about crisis pregnancies. If a woman indicates that she is pregnant to a person who sets himself up as an adviser or pregnancy counsellor the provisions of section 5 will be triggered. If a public meeting is held at which men and women are present and there is no indication that the specific purpose is to counsel pregnant women, it is a question of names, addresses and phone numbers being given, people are free to attend such a meeting. This is analogous to receiving information in a magazine or newspaper which a person is free to buy and should not be prohibited in the manner in which providing information on a billboard or in a free leaflet shoved through the letterbox is prohibited. That is the reason it is included in one category rather than the other and I would not be prepared to accept the amendment.

Mr. M. McDowell

I thought for a moment that I was in agreement with Deputy Geoghegan-Quinn. I thought she wanted to scrap the ban on statements made at public meetings. Her amendment would have that effect with the result that there would be a free for all at which anybody could do anything they wanted. I thought for a moment she was striking a liberal vein but I now realise that is not the case.

In relation to the Minister's reply to Deputy Geoghegan-Quinn, am I right in thinking that section 3 means that it is an offence to publish orally at a meeting Act information unless it is truthful and objective and not accompanied by any advocacy of abortion? That seems to me to be the case. If that is the correct reading of this section, does it mean that if an article in a magazine, whether published in Ireland or in England, which evaluates what happens in clinics is accompanied by any material which advocates abortion, the publication and sale of that magazine in this country is unlawful? If that is the case what will happen in relation to articles in The Guardian or in English magazines such as Cosmopolitan which might, in the course of an article which was pro-abortion, give details which would amount to Act information if they were given separately? If this Bill comes into effect, will it be an offence for an edition of Cosmopolitan which contains such an article to be sold in this country and can its sale be restrained by injunction? If that is the meaning of this section, I would be more inclined to go along with Deputy Geoghegan-Quinn's amendment and consider deleting the section in its entirety.

If we are now getting to the stage where we censor English newspapers because they advocate abortion——

Mr. Noonan

(Limerick East): We are not doing that at all.

Mr. M. McDowell

I think we are.

Mr. Noonan

(Limerick East): Deputy McDowell is approaching this as if we were writing law ab initio. The censorship Acts are in existence. There is a general prohibition on the advocacy and promotion of abortion in the censorship Acts. I am not doing anything in this section to prohibit advocacy and promotion which is not already forbidden.

Ms O'Donnell

Will it be enforced against British newspapers?

Mr. Noonan

(Limerick East): Deputy McDowell is talking about somebody who writes an article which is published that advocates and promotes abortion. That is illegal already under the censorship Acts.

Mr. M. McDowell

Am I to understand that if some way out pro-choice person — and I am not a pro-choice person — writes an article in The Guardian tomorrow it is an offence to sell that newspaper in Ireland? Is that the law the Minister is now proposing to re-enact? Whether it is the law at the moment is slightly irrelevant. Will it be a crime in future for an English newspaper to contain anything that advocates abortion and give any detail which might be of assistance to an Irish woman? If that happens it will result in cases being brought before the European Court of Human Rights.

It is sad that we cannot realise there are people in England who have different views on abortion from our own and that we do not have to criminalise somebody who sells a newspaper in Ireland, published in England, which contains views which the vast majority of people in this country find abhorrent. What kind of balance are we striking in regard to freedom of speech, freedom to read newspapers, freedom to buy magazines and to make one's own judgment on these issues?

Ms O'Donnell

Freedom to watch Channel 4.

Mr. M. McDowell

Will Cablelink be restrained from transmitting Channel 4 programmes which advocate abortion? I ask the Minister to enter the real world on this issue and say whether he is proposing to criminalise — whether or not it is criminal at present — English newspapers and television programmes circulating or being broadcast in Ireland on the basis that somebody in England has a radically different view of the abortion issue than somebody here. That is utterly impracticable.

Mr. Noonan

(Limerick East): The Deputy may think that but it is he, rather than I, who should go back to law school because if he reads section 13 he will see how we are dealing with the censorship Acts. I am amending the censorship Acts, in so far as it is necessary, to make the information provided under this Bill legal so that it does not run foul of the censorship Acts. I am also advised that the general prohibition on advocacy and promotion of abortion must be maintained in law, based on the constitutional position in Article 40.3.3º Irish law could not ignore the requirements of Article 40.3.3º in respect of the life of the unborn child. I am not doing any of the things suggested by the Deputy. In fact, I am ensuring that the information which can be made available under this Bill will not run foul of the general prohibition on advocacy and promotion in the censorship Acts.

The Deputy can ask if it will be enforced but that is a matter for the Director of Public Prosecutions, not for me. Lectures have been given time and again by eminent lawyers to the effect that we should leave these matters to the constitutional officers of the State, that they are matters for the Attorney General or the Director of Public Prosecutions and that it is not the responsibility of the Minister to prosecute people. If the Deputy has a problem he should raise it with the Director of Public Prosecutions.

Mr. O'Dea

That is a cop-out.

Ms O'Donnell

Will the Minister accept that it is not so much whether these sanctions are enforced but the defensive behaviour which the threat of such sanctions engenders in various people, including producers of television programmes, newspaper editors, distributors of magazines, etc? The Minister is being disingenuous when he says that the concerns being expressed here are not relevant or are unsustainable.

I considered tabling amendments to section 3 but it is so far-reaching, flawed and is such a threat to free speech in a free society that I came to the conclusion, in consultation with many other people, that the section is unamendable and, therefore, should be deleted in its entirety. As Deputy McDowell said, section 3 restricts the dissemination of "Act" information. Act information is any information that is likely to be required by a woman for the purposes of availing herself of abortion services outside the State and which relates to such services or persons who provide it. This Bill restricts the giving to the public of "Act" information in any form unless that information is truthful, objective and does not advocate or promote abortion.

In the passing of section 3 we are endorsing censorship which will be very broad-ranging. It applies to books, journals — even medical journals — films, television programmes and public meetings. It will affect journalists, writers, doctors, academics and artists.

Mr. Noonan

(Limerick East): That is the reverse of what is in the section. It is an enabling section.

Mr. M. McDowell

It is not an enabling section.

Mr. Noonan

(Limerick East): Did the Deputy read it?

Ms O'Donnell

If there is a pro-choice article in a British or French newspaper and if it is decided that it contains act information——

Mr. Noonan

(Limerick East): Turn it upside down and read it the other way.

Ms O'Donnell

——those newspapers will be criminalised by section 3. If a copy of The Guardian contains a letter in the Editor's page from the Marie Stopes Clinic advocating a new abortion service which gives the name, address and telephone number of the clinic, that is “Act” information and it is prohibited. Under section 3 The Guardian newspaper would have to be impounded because it is illegal information.

Mr. Noonan

(Limerick East): It is the opposite.

Ms O'Donnell

Let us consider the position of booksellers. Every bookseller in the country will have to examine their bookshelves to ensure there is no suspect literature there.

Mr. Noonan

(Limerick East): That is rubbish.

Ms O'Donnell

Eason's, Hodges Figgis and so on will have to embark on a search and destroy mission——

Mr. Noonan

(Limerick East): The Deputy will regret putting that on the record.

Ms O'Donnell

——to ensure that every book that does not comply with the law, books such as Our Bodies, Ourselves and Everywoman, which were removed from Dublin Corporation library shelves because they might be in breach of the Constitution——

An Ceann Comhairle

I hesitate to interrupt the Deputy but the time has come to proceed to other business.

Progress reported; Committee to sit again.