Tairgim: "Go léifear an Bille an Dara hUair anois."
I move: "That the Bill be now read a Second Time."
This Bill provides for constitutional and legislative reform in relation to the protection of human life in pregnancy. This proposal, which represents the first legislative response to the legal issues which remain unresolved since the X case in 1992, represents a fair, reasonable and compassionate approach.
Abortion is a sensitive issue for society and it is heartening that the response to the proposals to date has been of a measured, mature and thoughtful nature without, thankfully, the rancour that characterised the debates in 1983 and 1992.
It is very important to acknowledge that laws alone cannot deal adequately with the often tragic realities of crisis pregnancy in modern society. On more than 6,500 occasions in the past year alone, women giving an Irish address have had abortions in Britain. That is about 18 women every single day of the year and many Irish women have made this journey in previous years also. The difficult situations faced by these women and the often lonely decisions they have made demand a sensitive, understanding and compassionate response from us all.
We must, by every reasonable means at our disposal, strive to reduce the incidence of crisis pregnancy. Law is only part of the picture. Education, advice, care and compassion are in many ways much more important. That is why a comprehensive approach is being adopted on three different levels: constitutional, legislative and caring, practical, intervention.
I accept that the proposals to address the constitutional and legislative issues will have little, if any, impact on the situation of those Irish women who choose to travel abroad for abortions. I also acknowledge that a comprehensive range of compassionate, supportive and non-judgmental services is vital in order to provide women with the supports they need to deal with a crisis pregnancy and to make decisions about the options open to them. It is for these reasons that, having considered the recommendations of the All-Party Committee on the Constitution, I have established the Crisis Pregnancy Agency which will have the task, in consultation with Government and other statutory and non-statutory agencies, of drawing up a national strategy to address crisis pregnancy and oversee its implementation. I have appointed Ms Olive Braiden, who has a distinguished record in the fields of human rights and women's health issues, as chairperson of the agency and I am in the process of appointing the management board. Initial staff have already been seconded from my Department to enable the agency to become operational. The Government is providing funding of 6.5 million for the agency in 2002.
The prevention of crisis pregnancy in the first instance will be a primary task of the agency. Preventative issues concerning education of young people and adults, as well as services appropriate to their needs and lifestyles, will be addressed. Much concern has been expressed about the need to make women more aware of their options should they have a crisis pregnancy, and to enable them to consider these carefully and to assist them before they make decisions about the course of action they want to take. This is another major area to be addressed.
Women who have had an abortion, either recently or some time ago, have particular needs also and this is another area which the agency will be asked to address. We need to ensure that they are treated with compassion and understanding and that both their emotional and physical health needs are attended to.
The establishment of the Crisis Pregnancy Agency will play a major role in the development of co-ordinated, responsive and appropriate services. The Government hopes that over time it will be possible to reduce the incidence of unwanted pregnancies among Irish women and ensure that women who find themselves in this situation will have available to them the widest possible range of assistance to help them deal with their situation.
I will now set out briefly the constitutional and legal background to the proposals in the Bill. In 1983 the people decided by referendum to insert into the Constitution Article 40.3.3, which declares:
the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.
No laws were ever enacted on foot of this amendment and the provisions in the Offences Against the Person Act, 1861 remained the basic law in relation to abortion. This left open the possibility that Article 40.3.3 would have to be interpreted by the courts as apart from the 1861 Act there was no legislation which made clear what was and was not permissible under the law should there be a potential conflict between the right to life of the mother and that of the unborn.
As Members will be well aware, subsequent to the insertion of Article 40.3.3, cases have arisen in the course of which the substantive issue of abortion has been considered by the courts. The general circumstances of these cases will be well known to Members and do not require reiteration. In the X case of 1992, a majority of the members of the Supreme Court held that if it were established as a matter of probability that there was a real and substantial risk to the life as distinct from the health of the mother, and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful. The stated risk to the mother's life in this case arose because she had threatened to commit suicide if she had to continue with the pregnancy.
Some of the dicta of the majority in the Supreme Court also indicated that the constitutional right to travel could be restrained to prevent an abortion taking place in circumstances where there was no threat to the life of the mother. The right to travel did not take pre cedence over the right to life. In November 1992, constitutional amendments were proposed to deal with different aspects of the X case judgment. On the substantive issue, the wording put forward by the Government was intended to recognise that there could be circumstances where, in order to protect the life of a pregnant woman, medical intervention was necessary which could result in the death of the unborn child but that these circumstances did not include the risk of suicide. The people rejected this amendment.
In the C case of 1997, the High Court accepted that where evidence had been given to the effect that the pregnant young woman involved might commit suicide unless allowed to terminate her pregnancy, there was a real and substantial risk to her life and such termination was, therefore, a permissible medical treatment of her condition where this was the only means of avoiding such a risk.
Mr. Justice Geoghegan also made remarks obiter dicta about the issue of travel. He believed that a court, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must be confined to considering the grounds for termination which would be lawful under the Irish Constitution and could not make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution did not, he said, now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose.
There has been a view that, arising from the judgment in the X case and subsequently the C case, there is "unfinished business" requiring a response in terms of constitutional or legislative change, or both.
In the light of the difficulties which have surrounded previous efforts to address the issues to which I have referred, the Government has devoted considerable effort to facilitating and informing public debate about them. The Bill I am bringing before the House today represents the latest step in this process. We have engaged in a careful and logical process designed to explore the issues, to enable the many people and organisations who wish to express their views on the protection of pregnant women and of unborn human life in pregnancy to be heard and to consider ways of moving forward which will, we hope, command the support of the people. While it may never be possible to satisfy every point of view or to devise a solution acceptable to all, the Government has sought, by fostering a reasonable, calm and structured national debate, to develop a consensus on how the issues arising from the X and C case judgments might finally be resolved.
In the first instance the Government decided in 1997 that a Green Paper on abortion would be prepared. This document was published in September 1999 and was welcomed by many interests as a clear and balanced document, setting out as it did the history of the issues and the different arguments advanced and discussing the principal constitutional and legislative options. The Government referred the Green Paper to the All-Party Oireachtas Committee on the Constitution, chaired by Deputy Brian Lenihan, for consideration. The all-party committee embarked on a detailed process of consultation, first seeking submissions on the options discussed in the Green Paper. Over 100,000 submissions were received from individuals and organisations. Subsequently, the committee held hearings at which the issues were explored in detail with many of those who had made submissions, including representatives of the medical profession and of the churches, attending. The all-party committee's proceedings and report, published in November 2000, were generally agreed to be fair, balanced and of great value in educating and forming public and political opinion.
The Government has carefully examined the different proposals put forward by the all-party committee and the approach being adopted is based on one of the three possible approaches identified by the committee. Stated briefly, it will protect best medical practice while providing for a legislative prohibition on abortion and underpinning such legislation with an amendment to the Constitution. The Government is satisfied on the basis of all the expert medical evidence presented and discussed that there are life-threatening conditions or illnesses, either associated with pregnancy or exacerbated by pregnancy, in which in order to save the woman's life it may be necessary for doctors to consider taking action in the course of which or as a result of which unborn human life is ended. The Government does not believe that a risk of suicide is a valid basis on which to provide for medical intervention.
The experience in the 1992 referendum attests to the difficulty of providing in a relatively short constitutional provision for a clear prohibition on abortion, while ensuring that there is no obstacle to pregnant women receiving all the care and treatment they need. The Government has concluded that there is no simple sentence or paragraph that can be inserted into the Constitution which, by itself, would amount to a balanced, effective, legal response to the complex medical and legal issues which surround the protection of human life in pregnancy. Instead the Government has decided that the proper place to strike that complex balance is in legislation, not in the Constitution. The proposals contained in the Protection of Human Life in Pregnancy Act provide a practical legislative response to the issues raised by the 1983 amendment and by the "X" and "C" cases. They will not satisfy the wishes of those at different ends of the spectrum. The proposals are aimed at achieving a reasonable compromise which will enjoy the support of the middle ground of opinion and, I hope, be seen by the other groups as an honest and genuine attempt to pro vide an acceptable and workable solution to this complex issue.
It has been suggested that to do nothing in relation to abortion is still the best option. However, in the Government's view, the terms of Article 40.3.3 and the Courts' interpretation of that Article demand a legislative response from the Oireachtas. Indeed in 1992 one judge of the Supreme Court criticised the Oireachtas for its lack of action in this regard. At present the only real defence against widespread use of the X case as a basis for "social abortion" in Ireland is the ethical consensus in the medical profession. It must be remembered, however, that those outside the medical profession are not subject to that ethical code and with, for example, the development of drugs which can bring about an abortion without medical intervention, the current protections afforded to the unborn cannot be regarded as adequate.
Others have argued for legislation without further constitutional change or underpinning. However, the outcome of the X case does not afford a satisfactory starting point for future legislation. To legislate for the decision in the X case and, in particular, to make complex legal provision and control for the suicide risk as a ground for abortion, could open the way to freely available "social abortion" in Ireland.
The Government, having considered all the options, is opposed to permitting any intervention which could or would result in the death of the unborn child other than where the mother's life is at risk from a medical condition, excluding a risk of suicide. I believe a majority of Irish people are opposed to any lessening of the protection currently afforded to the unborn and I have no doubt that any proposal to remove Article 40.3.3 from the Constitution, which would be necessary if it were proposed to legalise abortion, would fail.
The purpose of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill is to provide a secure and effective constitutional basis for a legislative approach to the protection of human life in pregnancy. The proposals are designed to ensure that women can continue to receive all necessary medical treatment during pregnancy, while at the same time ensuring maximum protection of the unborn and maintaining a clear prohibition on abortion.
The mechanism proposed is that a referendum will be held to approve the insertion into Article 46 of the Constitution of the text of proposed amendments to Article 40.3 of the Constitution. These are (i) a new subsection 4º in Article 40.3 to provide that the life of the unborn in the womb will be protected in accordance with the Protection of Human Life in Pregnancy Act, 2002; and (ii) a new subsection 5º in Article 40.3 to provide that any future proposal to amend or repeal the Protection of Human Life in Pregnancy Act, 2002 will have to be approved by the people in a referendum.
If the people accept the proposal, the amendments to Article 40.3 will have effect only if a law containing the text of the envisaged Protection of Human Life in Pregnancy Act is enacted by the Oireachtas within a period of 180 days, otherwise the amendment in its entirety is nullified.
The mechanism of making a constitutional amendment conditional on a later legal development was successfully used in the referendum on the Good Friday Agreement in 1998. The proposed constitutional changes on this occasion are designed to ensure that the legislation has a sound constitutional basis, that the careful balance it strikes will not be subject to legal challenge from either side of the argument and to give people the reassurance that they will be consulted if change is proposed in the future.
It has been suggested that because Article 46.4 of the Constitution states that a proposal for a constitutional amendment shall not contain another proposal, the mechanism being used is not valid. Any such assertion is incorrect and is based on a misunderstanding of Article 46.4 of the Constitution. There is only one proposal in the Bill to amend the Constitution, namely, to insert into the Constitution the text set out in the First Schedule. The text of an envisaged criminal statute, as set out in the Second Schedule, is not a proposal within the meaning of Article 46.4 of the Constitution. The Bill to amend the Constitution does not propose that the Schedule containing the envisaged legislation should in itself have any legal effect. A "Yes" vote in the referendum on the Bill to amend the Constitution will give effect only to the constitutional amendments involved. The only way in which the terms of the legislation on the protection of human life in pregnancy can become law or have any effect is through a separate, subsequent decision by the Oireachtas to enact another Bill.
It is precisely because it is not possible to propose a criminal law and a constitutional law in the same Bill that the present amendment was drafted as it is. It was drafted deliberately to avoid containing two proposals, and it does not contain two proposals. The legislation, the text of which is set out in the Second Schedule, is not being enacted at this stage; all that people are voting for is to accommodate that legislation in the Constitution if the Oireachtas, at a later stage, passes it into law.
It has been claimed that the current proposal is in effect the same as that of 1992 and questions have been asked as to why it should be acceptable to the people now, when they rejected it in 1992. In 1992, the people voted on the proposed wording of the constitutional change itself, but not on the legislation which would have followed had the amendment been passed.
On this occasion the Government is committed to allowing the people to decide not only on the principle but also on the detail of what is proposed. They have a right to be consulted on the fundamental issues involved in the abortion issue, and the amendment process set out in this Bill recognises that fundamental right.
The legislation envisaged has been published and will have been debated before the referendum so that the electorate know exactly what is proposed. The legislative mechanism, as I explained earlier, allows for a balanced, effective, legal response to the complex medical and legal issues which surround protection of human life in pregnancy.
Such a complex balance can be struck in legislation in a way that is not possible if purely a constitutional approach were taken. At the same time, the constitutional "lock" which will be placed on the legislation guarantees that it cannot be altered by the Oireachtas without another referendum.
Furthermore, there has been a detailed process of examination of the issues and their complexities involving many submissions from interested parties and, in particular, the all-party committee's hearings during which many medical and other experts gave evidence. In many significant respects, therefore, what is proposed on this occasion represents a much more detailed approach following on from a careful process of consideration and debate.
I will now turn to the detail of the proposals. The Bill provides for the operation of a mechanism whereby proposed changes to Article 40.3 of the Constitution and the text of envisaged legislation on the protection of human life in pregnancy will be put to the people in a referendum.
Section 1 provides for the amendment of Article 46 of the Constitution so that the text of the First Schedule to the Act will be inserted after the existing section 5 of that Article. Section 2 is a straightforward citation provision dealing with the proposed amendment of the Constitution.
The First Schedule contains the proposed text of the amendment of Article 46 of the Constitution. The proposed text to be inserted as Article 46.6.1 in turn contains the proposed text of Articles 40.3.4 and 40.3.5 of the Constitution.
The text proposed as Article 40.3.4 provides that, in particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002. The use of the term "in particular" makes it clear that the statute envisaged by the amendment, if enacted, is not intended to be a restatement or redefinition of the term "unborn" as used in Article 40.3.3.
The effect of the text proposed as Article 40.3.5 is that any Bill containing provisions to amend the Protection of Human Life in Pregnancy Act, 2002, must be referred to the people in a further referendum. The existing Article 40.3.3, as amended in 1992, will remain also.
The effect of the text proposed as Article 46.6.2 is that if the Protection of Human Life in Pregnancy Act, 2002, is enacted and amendments are made to Article 40, the amendments to Article 46 will no longer appear in the official text of the Constitution and the amendments made to Article 40 will take effect, appearing in the appropriate place within that Article. This is because, once the amendments to Article 40.3 take place, it would be undesirable for the new Article 40.3 to appear in more than one place in the Constitution, that is, in Article 46 as was as in Article 40.
The text proposed as Article 46.6.3 contains a mechanism whereby, unless within 180 days a law is enacted in exactly the terms of the text seen and approved by the people when they vote on the proposed amendment, the whole of Article 46.6 will cease to have effect and the Constitution will revert to the form in which it existed before the referendum. The text on which the people will vote will be that agreed by the Oireachtas in the course of the passage of the present Bill.
The fact that the text of the envisaged Protection of Human Life in Pregnancy Act is contained in a Schedule to the Bill does not curtail the right of the Oireachtas to discuss it and to propose amendments during the passage of the present Bill, in the same way as happens with any other legislation. It must be understood, however, that when following the referendum, the Oireachtas comes to enact the Protection of Human Life in Pregnancy Act, it will not be able to amend the Bill for that legislation in any way.
The new law, when enacted by the Oireachtas, will not become a formal part of or be written into the Constitution. Its terms will simply have constitutional protection and recognition. It will be open to subsequent amendment like any law but only if the people approve the amending legislation.
The text proposed as Article 46.6.4 states that the Bill for the law on the protection of human life in pregnancy is excluded from the terms of Articles 26 and 27 of the Constitution because if the people in a referendum decide that the Protection of Human Life in Pregnancy Act, 2002, should be enacted, it would be inappropriate that this legislation should nonetheless later be subject to the provisions of these articles and the mechanisms they provide for reference of Bills to the Supreme Court and to the people respectively.
The Second Schedule to the Bill contains the text of the envisaged Protection of Human Life in Pregnancy Act. Irish maternity services have a deservedly high reputation when it comes to both the care of pregnant women and their unborn children. The Government wants to put in place for the first time a legislative framework which will ensure that there are no legal doubts surrounding the provision of medial care during pregnancy.
This Act will make clear what is and is not legally permissible by way of medical intervention during pregnancy. That is the first legislative approach in this area. The lives of women will be protected during pregnancy and the developing human life within the mother's womb will also be protected.
The Act will also remove any doubt there may be about the legality of treatment which doctors may consider necessary where some women during pregnancy are suffering from certain rare life-threatening medical conditions. It will provide certainty for doctors who may have feared that some interventions, although accepted medical practice in such situations, might nonetheless be unlawful.
Section 1 defines abortion for the purposes of the Act as "the intentional destruction by any means of unborn human life after implantation in the womb of a woman". It provides exemption from the definition of abortion of a medical procedure carried out by a medical practitioner at an approved place, in the course of which or as a result of which unborn human life is terminated where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent the real and substantial risk of loss of the woman's life other than by self-destruction.
In the course of the hearing of medical evidence by the All-Party Committee on the Constitution, it became clear that in a small number of cases of strict and undeniable medical necessity, intervention by doctors to safeguard the mother's life can entail or result in the ending of the life of the unborn.
On reading the testimony to the all-party committee, it becomes apparent that while there are differences of language and of interpretation among members of the medical profession, their approach to the care of pregnant women and their unborn children is essentially the same, that is, their objective in all cases is to ensure that women receive all the medical care they may need and that the health of their unborn children is afforded the maximum protection also.
There can be no doubt that in rare situations, in order to save a woman's life it may be necessary to intervene in a way that results in the death of the unborn child. These situations are very rare but they can and do occur. Dr. Peter McKenna, Master of the Rotunda Hospital, told the all-party committee that "possibly once a year a woman would be seen in this country who, if her pregnancy is not terminated within a matter of probably hours or days, will die from a complication".
It is also apparent from the evidence to the committee that many doctors would not consider that such a procedure constitutes abortion. Professor John Bonnar, Chairman of the Institute of Obstetricians and Gynaecologists, stated:
It would never cross an obstetrician's mind that intervening in a case of pre-eclampsia, cancer of the cervix or ectopic pregnancy is abortion. They are not abortion as far as the professional is concerned, these are medical treatments that are essential to protect the life of the mother.
The new law will, therefore, define "abortion" in a way that clearly excludes such ethically legitimate procedures from being termed an abortion for the purposes of our criminal law. Doctors may provide any medical treatment which, in their opinion, is necessary to safeguard the life of a pregnant woman. The doctor's opinion must be formed in good faith and there is an explicit requirement that regard be had to the need to preserve unborn human life, where practicable. It is important to emphasise that doctors, when treating a pregnant woman, make every effort to safeguard not only her life, but that of her baby. This will not change after the passage of the Act.
The question of threatened suicide in pregnancy is of concern to many people. Threatened suicide during pregnancy was a central issue in the X case and the C case, to which I have already referred. The effect of the proposed Act will be that a threat of suicide will no longer be a ground for legal abortion in the State. I know this is a difficult issue for many people and that there are those who believe it is appropriate and feasible to legislate to permit abortion where suicide is threatened. The suicide risk has only been advanced as a ground for abortion in cases where the State, in one way or another, directly or indirectly, was attempting to restrict the freedom of a woman to travel. The terms of the Protection of Human Life in Pregnancy Act will protect that freedom and will not compromise it in any way.
The Government believes the evidence considered in the preparation of the Green Paper, and the testimony and conclusions in the report of the all-party committee, do not support the maintenance of suicide risk as a ground for abortion in Ireland and would not justify the enactment of a legal basis for abortion to avoid such a risk.
Such studies as have been undertaken suggest that pregnancy has a "protective effect". In a large UK study the rate of suicide in pregnancy was found to be only one-twentieth that of a similar matched non-pregnant population. Similar results have been demonstrated in other studies. It is important to exercise caution when interpreting the epidemiological data from other jurisdictions with different cultures and where legal abortion is available on a range of grounds, and the Government's view is not based solely on these studies.
In contrast to the type of situation which will be covered by the Bill, it is very difficult to assess whether a risk of suicide is genuine. Evidence to the all-party committee suggests that it is very difficult to accurately predict suicide. Dr. John D. Sheehan, consultant in perinatal psychiatry at the Rotunda Hospital, indicated there is no test or fail-safe way of saying that a person will or will not commit suicide and that where suicide occurs it is due to the interaction of multiple factors, rather than just one. The evidence heard by the committee also indicates that the medical response to a pregnant woman considered to be at risk of committing suicide would be to help and support her and to treat her underlying mental condition. Providing for abortion where a woman's mental health may be at risk is one of the principal grounds on which abortion is permitted in other countries and experience elsewhere strongly suggests that a change in the law to deal, on compassionate grounds, with a small number of exceptional cases can be exploited to allow wide scale application.