Protection of Life During Pregnancy Bill 2013: Report Stage (Resumed)

Debate resumed on amendment No. 8:
In page 5, lines 26 and 27, to delete "section 9 certification".
-(Deputy Peadar Tóibín)

I want to address two of my amendments, Nos. 69 and 77. I, like others, have serious difficulties with section 9 of the Bill. To my mind, it threatens to defile the Statute Book with the absurd premise that the suicidality of one individual can in some way be abated by the killing or destruction of another human being. This principle was not conceived in any centre of medical excellence or research, but rather in the Supreme Court. To my mind, this court issued a flawed judgment in the X case, and not having heard any medical evidence at the time, it operated in an information vacuum.

We now have an abundance of up-to-date medical evidence and research from our nearest neighbour, the United Kingdom, which clearly states that abortion is not an appropriate treatment for suicidality. In fact, the provision of abortion in such circumstances has been shown to result in creating more mental health issues in women than it would seek to negate. We heard all of this evidence here in spades during the two sets of Oireachtas hearings, yet we are poised to ignore all of that medical evidence and pass legislation that has no basis in medical fact.

I have submitted a number of amendments with a view to making improvements to the Bill as opposed to making the Bill acceptable. I did not propose the deletion of section 9, as I know that to do so would render the Bill unconstitutional. What I would like to see is the question of suicide, and perhaps questions raised by other Deputies during the debate, to be put to the people again by way of a referendum, in light of the new evidence and research that is now available and in order to address the incompatibility of certain aspects of the X case judgment with up-to-date contemporary medical evidence regarding abortion and suicidality.

People will argue that we have had two referenda in the past, but medical evidence and research evolve and, most importantly, best medical practice evolves. I believe it is incumbent on us as legislators to make the decisions we make, having regard to the best possible information available to us at any given time. If, for example, we were to frame legislation concerning the health of women in pregnancy based on the best advice that has been available previously, we could be looking at providing for symphysiotomy in the legislation. If we went back further and were to frame legislation concerning the health of women in pregnancy based on the best medical advice available 40 to 50 years ago, we could be looking at the administration of thalidomide in legislation. We, however, are in the process of framing legislation for the protection of life during pregnancy in 2013 and we must be guided by the evidence available to us today, not bound by a decision manufactured in the courts back in 1992.

In formulating the proposed legislation, the Government has ignored everything the experts had to say during the two sets of Oireachtas hearings. It has come up with a Bill that is shaped by political considerations rather than medical evidence. In truth, abortion is no more a treatment for suicidal ideation than suicide is a treatment for it. Many Deputies have spoken about the low incidence of women who will avail of this, but let us refer again to our nearest neighbour, the United Kingdom. In England and Wales in 2011, almost 200,000 terminations were performed and over 95% of these were on the basis of mental health issues.

Section 9 of the Bill also threatens to normalise suicide.

Some psychologists and psychiatrists have suggested this, although it represents a departure from best practice as outlined in suicide prevention guidelines. We are proposing to codify in legislation the premise that suicide is a legitimate option, the contemplation of which has the potential to make legal something which is otherwise illegal. Suicide is not an option; it is a manifestation of false perception that there are no options. We have had numerous debates on this in the two and a half years I have sat in this House. All of our efforts on suicide prevention have centred on getting the message out that there are options for people, that people can seek help and that there is support out there. Our guidelines state that suicide must never be represented as a valid choice, but this Bill conflicts with that and it threatens to normalise it as a legitimate response to anxiety and distress.

I also have concerns, as have many others, in regard to the absence of a gestational time limit in the proposed legislation. One scenario which might arise is if a pregnancy is terminated under section 9 at, say, 24 or 25 weeks gestation, when the unborn child is on the cusp of viability. That child may well survive the termination, but being prematurely induced at that stage exposes it to a high risk of incurable conditions such as cerebral palsy, brain damage, blindness and other debilitating illnesses. It may consign the child to a hopeless future of institutionalisation and disability. As I said on Second Stage, it is not difficult to envisage how a child needlessly damaged like this, unwanted by its parents and destined to subsist in a desolate limbo, could ultimately have recourse to the courts arising from the State having failed in its duty of care.

I also believe this legislation may herald a fundamental shift in the culture of care in this country's hospitals. Our health care professionals, in making every effort to protect the life of the mother and that of the child, in accordance with their own guidelines, have made Ireland one of the safest countries in the world for women in pregnancy. What impact will this legislation have on the culture of care in Irish hospitals if, one day, a doctor is striving to save the life of a woman and her child, and the next is perhaps gowning up to perform a procedure that will result in the death of the unborn child?

One aspect of this debate which saddens me is the fact that some Members opposite have used the tragic death of Savita Halappanavar to advance one side of the argument. I believe it is shameful of those Members who have engaged in such dishonest and disrespectful politics. Savita's death has been wrongfully used to further one side of the argument. I believe everyone in this House welcomes the clarity this Bill brings for medical professionals operating in this sphere, as I welcome it. It is dishonest of Members opposite to suggest or imply otherwise.

I do not believe, and this is my honest assessment, that the lack of clarity in the Medical Council guidelines which are in place at present contributed to Savita's sad passing. I attended her inquest and I read the report into her death. To my mind, the problem in Galway was that her medical team did not recognise in time that there was a threat to her life. Had they done so, they would have acted, as they have done in Galway in the past, and as has been done in an average of 30 cases each year, as we were told at the Oireachtas hearings. They would have acted to terminate the pregnancy but, sadly, they did not recognise the threat to her life in time.

Let us be clear. This Bill does not change the law in so far as it applied to Savita's case. Had this legislation been in effect at the time of that tragedy, sadly, I believe the outcome would have been no different.

I am under no illusion that the stance I have adopted concerning this legislation is not a popular one, it is not prudent from a political perspective and it is a decision for which I am likely to pay a heavy price. However, if political isolation and future electoral defeat is the cost of doing what I believe to be right and in the best interests of the people I represent, then I will gladly pay that price. Too often in the past, our decisions have been guided by having an eye to the next general election and to what is popular. Political foresight has only extended to the next election. It is perhaps because of that mindset that we find ourselves in the economic crisis from which we are trying to recover.

It is time for us to not only look further but also in a different direction on this issue, not towards what is momentarily popular but towards what is clearly right. It remains my hope that those of us from within the Fine Gael family who will vote against this legislation tonight can continue to be accommodated within the party. I have spent 30 of my 40 years actively involved in Fine Gael. I have the very highest respect for the Minister and, indeed, for the Taoiseach. I believe the Minister is genuine and sincere in what he is trying to achieve here. I do not agree with that point of view but I would hope he would also show me the respect I believe my point of view deserves.

The Taoiseach has been magnanimous in the past in dealing with those who have been disloyal to him, and I think a far greater level of disloyalty has been displayed towards the Taoiseach and the party in the past. I do not believe that I have digressed from the party's values. I gave a commitment to the people based on my understanding of Fine Gael's position in advance of the last general election. I made a commitment on the doorsteps and that is a commitment I intend to keep. One senior Minister said recently on "The Week in Politics", when he spoke about broken election promises, "Isn't that what you do at election time?" It is not what I do at election time, and it is not what I intend to do here.

We have heard a lot in recent days and in particular tonight about conscience and the importance of voting with one's conscience. I salute each and every Member of this House tonight who will vote with their conscience on this important issue. However, it needs to be said that people on both sides of this House will vote with their conscience. People will vote with their conscience when they go through both of the lobbies tonight.

There is something hanging in the air that somehow only those who oppose either section 9 or the Bill in its entirety are voting with their conscience and the rest are somehow voting through political expedience. Nothing could be further from the truth. Was it conscience that led this Legislature for the nine years from 1983 to 1992 to legislate for when a pregnancy could be terminated in order to save the life of a pregnant woman? I accept that the legislation at that time would not have included suicide as a ground. Was it conscience that led this Legislature to ignore this issue or was it political expedience? Was it fear of powerful political forces in the land?

Was it conscience after 1992, when the Supreme Court clarified exactly the meaning of Article 40.3.3°, and the Chief Justice stated: "I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3° of the Constitution." Of course, we heard tonight that the Supreme Court cannot order this Legislature to legislate, which is correct. However, it is important to also bear in mind that it is for the Supreme Court to determine what the Constitution means - the Constitution, as chosen by the people, not by this Legislature.

After the rejection of the referendum in 1992 to remove suicide as a ground, was it conscience that for ten years led the Legislature to do nothing? In 2002, another referendum was put to the people to remove suicide as a ground, and it was again rejected by the people. Was it conscience that led the House to again ignore the people and their Constitution? I say it was not; I say it was political expedience, and that needs to be recognised.

Was it conscience that led some people to somehow suggest that the X case was invalid and was all some kind of an obiter dictum, when of course it was not? Yes, the circumstances of Miss X changed after the judgment, but an obiter dictum is defined in Murdoch's Dictionary of Irish Law as an observation by a judge in a case on a legal question based on facts which were not present or not material.

The reality, however, is that all of the facts were present and relevant when the Supreme Court made its decision in the X case. They might have changed later, but that does not in any way render that judgment obiter. It was and remains a valid judgment.

The Cosma case was also cited as being relevant to this matter. That case related to a conflict involving a woman who threatened to commit suicide because she was being deported, whereas the X case involved a very real dilemma and conflict as between vindicating the life of a girl and the right to life of the unborn, whose life was dependent upon that girl's life. It was an entirely different scenario from that encompassed in the Cosma case. In the X case judgment, Mr. Justice McCarthy noted that the right to life of the girl in question was a right to a life in being, while the right of the unborn was to a life contingent on its survival in the womb until successful delivery.

If there was any fault with the X case judgment, it was that it was conceded that there was indeed a threat to the life of the mother through suicide. That will not be the case in the real circumstances that will come before a panel of doctors for adjudication in accordance with section 9. Section 9(1) reads: "It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where ... three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that there is a real and substantial risk of loss of the woman's life by way of suicide, and in their reasonable opinion [being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable] that risk can only be averted by carrying out that medical procedure." The reference to a "real and substantial risk" of loss of life is exactly the same term that was used by the Supreme Court in its judgment in the X case. There is no prospect that the question of whether the risk to life meets that test will be conceded. Instead it will be for three suitably qualified practitioners to determine whether there is a risk to the life of the woman posed by suicide. It is not a matter of a legal concession or something as trivial as that. It is indeed a matter of life and death. That is why three suitably qualified medical doctors will determine the issue.

I commend the Bill, including section 9, to the House.

It is some ten and a half hours since I made a short contribution on these proposals. I preface my comments tonight by reminding everyone - in which I include myself - that life is an extraordinary gift and that mothers and babies are extraordinarily valuable human beings. The Constitution recognises that in Article 40.3.3°. The problem, if it is a problem, is to interpret that article in a way that is mindful of the enormously sacred or valuable lives in existence. Of course, medicine in all its disciplines should do everything possible to support and care for the life of a mother at risk. There is no question about that.

As we heard from Deputy Billy Timmins and others, we have come a long way in understanding what psychiatry has shown us. We know by the overwhelming evidence, and we cannot afford to avoid that evidence, that a threat or intent of suicide is not medically dealt with or treated by a termination of pregnancy that could end in the destruction of the life of a baby or damage to that baby. The evidence in that regard to the Oireachtas committee was overwhelming. We would be absolute fools to create some sort of legal labyrinth which says that the only way to avert that intent or risk to the life of the mother is to legislate or make it lawful to end that other life.

We should have listened to the voices of some of the women who have had abortions. They asked to present their testimony in a gentle and educational way, to offer a sharing of their experience before their abortion, at the time of the abortion and afterward, and how it has since affected their lives and their family's lives, including their husbands or partners and their other children. We declined to allow them to tell us their stories. That is quite weird, in my book.

The Minister said that this debate has been fulsome, that it has charged most of us and made us look into the corners of our conscience and knowledge, to find out more, listen more and read more. Yet I can see that my own colleagues are full of angst, anxiety and worry about this, because it is a very serious thing. It is the fabric of our country, our people and our culture. It is the fabric of our faith in humanity, even if there is not faith in Christianity or, for that matter, in Islam. After all, Islam does not like abortion or anything to do with this Bill. We can selectively choose which bits of social consciousness we will discuss, accommodate, trim, prune back or whatever, but it is clearly not good when so many people are angst ridden.

It hurt and saddened me - I felt empty, in fact - when one of my colleagues said earlier today that having spoken to the Taoiseach for an hour and a half yesterday - and that was not the first such meeting - and also to the Minister for Health for an hour, and despite being dissatisfied with the answers she received to her proposals and questions, she decided nevertheless to vote for the Bill so that she is not thrown out of her party. That is unbelievable. If any of my children did that, I would ask them, please, to look into what they are doing and how they do it. I hope everyone here would say the same to their own children. It is wrong to have this type of coercion. If a company treated senior, respected employees who have given a lot of professional input to their firms in a similar manner, employees who have informed themselves and read, studied, listened and looked into a particular matter at hand, it would be equally wrong. It is wrong, plain and simple.

If we feel that something is not right, we must acknowledge it. If it does not feel right then there is probably something wrong about it. As I said earlier, the hull of a ship is what gives that ship and all on it their safety. It does not matter what amendments one does in terms of lifeboats or lifejackets or beacon lights and all the things we have been discussing in recent days, including what happened to the poor Bolger brothers and all of that. Will the beacon lights work if someone falls into the water? This is about future children, little babies. Let us make this a better country so that women do not have to go to England, France or America, 4,500 of them every year. I hear people saying these women have to go to England; they do not have to go. We should gather them up and give them support, give them money, give them encouragement.

The Deputy does not understand.

I do understand. The Minister of State was not at all the committee hearings and did not hear what was said. None of the Cabinet Ministers was at those hearings. That is a very big gap and I am ashamed of it.

I have a point of order.

I cannot allow it, Deputy McGrath. Deputy Peter Mathews has the floor.

We heard about the law.

We are dealing with amendments to section 9.

This touches on all sections and all the amendments without exception. We must get this right. We are not obliged to legislate for the Constitution. That was well put. Deputy Timmins rightly said that we would be all fools to ignore the reality of what psychiatrists tell us and that they said they are being put into a naturally repugnant dilemma whereby if a woman is distressed, and my compassion goes out to her, to the point that she says she does not want any of the care pathways, and she is entitled to do so, the psychiatrists must conduct what was referred to as the gatekeeper exercise, whereby they certify jointly that there is a continuing real intent on committing suicide and a risk. The only way to avoid it for the mother is to allow legally a lawful termination that, if it occurs in week 15 or week 16, is certain death to the little baby and is damage if it occurs in week 16 through to week 23 and beyond. We are in bad territory. We should stop. We are looking over the edge of a very steep cliff and we, as a people, should stop.

It is a disgrace that the debate is trundling on until 5 a.m. The people of Ireland deserve better. We should be sleeping on what we have heard today, listening more, reading more and having open minds and fresher minds with clearer thinking tomorrow, the next day or the day after. Is it not tragic that in France women did not have the vote until after the Second World War? That was really bad. Only 30 years later, they legislated for abortion for the first time. Today, girls in France can go to their GPs and have lawful abortions without their parents' knowledge. Some 25% of all pregnancies in France end in abortion at the moment.

Is the Deputy suggesting it is because of women's right to vote?

I am saying that in a short space of time legislation moves on and socially countries can lose their path. Law gets meddled with and interfered with.

It is called legislating.

Some 30% of pregnancies in America and England end in abortion. Deputy Michael Healy-Rae referred to it as 1.2 million babies every year in America or 3,500 a day. This amounts to a 9/11 every day but we do not hear from them because they are little. They do not have relatives except the parents, who allow it to happen. People might think this is extreme but it is extreme.

Deputy Kirk made a very good suggestion, that the Parliament should ask the Taoiseach to reconsider this. That was an excellent and seriously sound suggestion. Deputy Tóibín made an excellent contribution and the Minister of State, Deputy Creighton, was spot on, with a clear focus on how we have travelled to where we are in the terms of the law.

I met Hugh O'Flaherty after the second Lions rugby match against Australia. I met him socially in a tennis club of which I am a member and I did not go there to mention anything to him but I was delighted to read what he wrote last weekend, six days later. We ought to sit up and pay attention to it. He was a Supreme Court judge for that case. Like the other five members of the Supreme Court, he used his professional skill and judgment, which was limited to the facts in front of him, as pointed out by Deputy Michael McNamara. The facts, which were very limited, were the experience of a psychologist with six years experience-----

Does the 14 year old girl who was raped have no say?

Can I speak please? The limited professional experience was given as best he could to judges who knew they were getting only limited professional opinion but it was a crisis and they had to move and think fast. The judges would have liked to have heard more and would have loved to hear what we now have the benefit of but they did not have it. The Minister of State, Deputy Creighton, said they made a judgment, which was a contained judgment for that case, as best they could. It does not travel as a precedent.

Deputy McNamara provided a definition of obiter dicta, which contained one word that does not make quite what it seems. I want to give an example of how framing of information can lead to a different understanding and a different result.

Was she not 14 and was she not raped?

This is an excerpt from the chapter about frames and reality in Thinking, Fast and Slow by Daniel Kahneman, a Nobel prize-winning behavioural psychologist, economist and philosopher who has written perhaps this year's bestselling book. His reputation in the area is world class and is a hallmark. He and his colleague, Amos, carried out an experiment with colleagues at Harvard Medical School. It is a classic example of emotional framing.

Physician participants [and remember these are qualified physicians at Harvard] were given statistics about the outcomes of two treatments for lung cancer: surgery and radiation. The five-year survival rates clearly favor surgery, but in the short term surgery is riskier than radiation. Half the participants read statistics about survival rates, the others received the same information in terms of mortality rates. The two descriptions of the short-term outcomes of surgery were:

The one-month survival rate is 90%.

There is 10% mortality in the first month.

[It is the same information framed differently.] You already know the results: surgery was much more popular in the former frame (84% of physicians chose it) than in the latter (where 50% favored radiation). The logical equivalence of the two descriptions is transparent, and a reality-bound decision maker would make the same choice regardless of which version she saw [note that he switches to she]. But System 1, as we have gotten to know it, is rarely indifferent to emotional words: mortality is bad, survival is good, and 90% survival sounds encouraging whereas 10% mortality is frightening. An important finding of the study is that physicians were just as susceptible to the framing effect as medically unsophisticated people (hospital patients and graduate students in a business school). Medical training is, evidently, no defense against the power of framing.

I use the example to make a point about the title of the Bill, which I would love to do what it says it does. However, it does not do so because section 9 does not do it. The psychiatrists and the obstetricians said, if any Ministers had chosen to attend the hearings, there was a repugnant dilemma and that it was the labyrinth of the law that said if the mother said she did not want any of the medical treatments, the only way to avert the real and substantial risk of suicide was to terminate the pregnancy, which meant losing the life of the baby. They said it was a repugnant dilemma and they did not like it and it was all against their medical training, their medical objectives and their code of caring philosophy and everything.

We must be very careful about this. The legislation is supposed to provide clarity. As I said to the Minister earlier, iatrogenic medicine represents 25% of all medicine in the United States of America. It is probably the same here. It relates to doctors doing follow-up or tidy-up work on earlier medical interventions or diagnoses. We are human beings and we make mistakes, as happened in the unfortunate case of Savita Halappanavar in Galway. It is human error. How do we think that we can legislate to instruct doctors, who we hope have the objective of doing no harm and, in fact, doing good? We hope they will look after everybody, including mothers, fathers, children and older people. Within the frame of reference and principles of the Constitution, we should let them get on with it. Wisely, we do not legislate for how bridges should be built or brain, open-heart or eye surgery performed. We do not even tell solicitors how to do things or accountants how to measure profit or loss. They have developed ways of dealing with accruals and of observing prudential assessment. When professionals let their standards slip, as bankers and accountants did, the ratios and balance sheets, which should have been kept in check, fell by the wayside. Then, we saw the collapse. The difference in this case is that we have been told by the professionals what the realities are. Psychiatrists tell us that abortion is not a cure for suicidal intent. We are choosing to ignore that in framing the legislation. In the banking collapse, we were told lies, which led to a financial collapse. Do we want a social collapse?

Is this on section 9 of the Bill?

This is about protecting women.

I told you at the outset that we have asked the medics to do everything.

Deputy Mathews, please speak through the Chair.

He is entitled to have his say.

Medicine has been doing that in the interim 21 years.

We cannot have these conversations.

He is being interrupted.

We have wonderful standards. They are the best. Doctors, nurses, midwives and medical attendants do their very best. Let us not make them overly neurotic about law and what lawyers would like them to do in lawyers' language instead of caring for people and taking necessary, courageous risks. As I said to the Fine Gael Parliamentary Party meeting, my father would not have wanted clarity for Freddie Woods to do his open-heart surgery. He trusted Freddie to do it. There has been a highly politicised and disingenuous attempt to do something here that we should stand back from and take stock of. We must be honest. It is shocking that 4,500 women and girls go to England and France every year and my heart goes out to them. We should prevent it.

Whatever society needs to do to prevent it.

We had a referendum on that.

I know orphans who were the product of a conception through rape. They certainly do not want to think that their lives might have been snuffed out. I know a couple of them. It is shocking that women have had the experience and consequential emotional effects travelling through their lives and to their husbands, partners and children. We cannot repeat this enough. We must understand it. It is not a quadratic equation or legal treatise that we have to undertake. We must look after women and babies from the moment of conception and the whole human family on the island until natural death. Otherwise, we may begin to look at people who have lost their minds and memories as being at the other end of the spectrum from what some people call a foetus rather than a baby - an old bag of bones or whatever remote medical term might be used. No. Everybody is worthy and life is a gift. I did not decide to be born in August 1951 and my children did not decide to come into the world. I will leave it at that as some thoughts on which to reflect.

Good man, Peter.

People have asked me where they are on the list. Deputy Durkan is after Deputy Ó Caoláin. Deputies Shortall, Shatter, Bannon, White, John Paul Phelan, Seamus Healy, Kathleen Lynch and Pringle are the names that follow.

I should be added to the list. I was locked out when I was in possession.

The Ceann Comhairle will deal with that.

Sinn Féin opposed the proposal to sit until 5 a.m., not because we did not want additional time to discuss the Bill but because the time arrangement is unreasonable. The Bill should not be debated by ever-tiring heads. The Government should have rescheduled for tomorrow and Friday, if necessary, whatever time was required. Fresher, clearer contributions were what we hoped for.

The greater number of Irish people realise and accept that this is not a black and white issue nor indeed is it a them-and-us issue. Accordingly, it should not be a question of a them-and-us debate between one body of opinion strongly held and another body of opinion equally strongly held, with no prospect of a meeting of minds. Those who argue for the greater number of amendments in the grouping, most of which seek the deletion of section 9, do not have a monopoly on care and conscience. It is because I care and exercise my conscience that I have concluded that I must act as legislator and face up to the fact that certain circumstances can and do present.

I noted in an earlier contribution a Member's concluding remarks. The question was posed as to why the Bill provided for the termination of pregnancy as the only treatment for those unfortunate women confronted with suicidal thoughts or ideation while pregnant or as a result of the pregnancy. There is a simple answer. It does not so provide. That is not what the Bill says. Section 9(1)(a)(ii) refers to the reasonable opinion of three medical practitioners, two of whom will be highly qualified psychiatrists, that a risk can only be averted by carrying out the medical procedure. What does the word "only" tell us? The practitioners have a responsibility to reach a conclusion using their professional judgment as fully trained and registered psychiatrists who have assessed, explored and employed every other reasonable, realistic approach in their address of those cases that will present.

This is not the only action provided for. It is the last action provided for when all of the other avenues of exploration and address have been properly explored, employed and exhausted.

In the case of the risk of loss of life from suicide, it is worth reminding the House again that this is already the law. This is what is already acknowledged practice in the guidelines to all medical practitioners. If one has any doubt, he or she should check section 21.1 of the Irish Medical Council guidelines. How many such terminations due to the risk of loss of life from suicide have taken place over the number of years since that has been the legal case? Such is the legal position and it is what the guidelines of the obstetricians' collective professional body, the Irish Medical Council - which is the amalgam of all medical practitioners - clearly indicate. One of the obstetricians who appeared before the committee hearings in January and May indicated there could be no doubt about this aspect, not as is provided for here in terms of further opinion to ensure certainty. It is interesting to note that despite this, not one of the obstetricians who appeared before those committee hearings had a personal experience as an obstetrician of ending a pregnancy following on such an assessment. They acknowledged in the course of their contribution that there were - there was some little difference of opinion - perhaps two or three cases that they knew of going back over many years, and each of those are very sad in their own situation.

No doubt the medical practitioners involved in determining those interventions are the self-same medical practitioners who will continue to operate by the terms of this legislation on its passage and who will employ the highest professional standards within their respective disciplines in medicine, by which I mean across the board without distinction in terms of physical illness address or mental illness address. I have confidence in them and in their ability to do so. We must recognise that first and foremost in the minds of all practitioners is their obligation to address the need of the pregnant woman and the need to preserve the life of the unborn child. There should be no doubt that such would be their approach and that such is their professional commitment.

The Bill provides for review and for reporting so that the Minister of the day is fully aware of the incidence in any of the sections, be it section 7 certification, section 8 certification or section 9 certification. On the matter of any irregular incidents, I will accept when the Minister states - he and I are not noted to be in regular agreement - that he would act appropriately if any concerns presented in terms of incidents.

My conclusion on section 9 is that it is an integral and necessary part of the Bill. I would appeal to Members because, make no mistake about it, it is not an easy path, either for me and for many of my colleagues and friends across all political opinion in this Chamber, to come to these sets of judgments. We do so, not on the basis of any of the personal concerns and views we have held but as legislators recognising that we have a bounden responsibility to judge each piece of legislation as to it being fit for purpose. I believe that the Bill is exactly that - fit for purposes and worthy of our support. This is a time for all legislators to step up to the plate and lift their heads from the sands.

I fully endorse and agree with the points raised by Deputy Ó Caoláin. I am sure that does not come as a shock because we both, like the Leas-Cheann Comhairle and others, have been around this House for quite a while.

In issues of this nature, we should remember one or two points. First, this is a question of conscience. Many have conscientious concerns and there is provision made in the legislation in respect of conscientious objectors. Conscientious objection is recognised nationally and internationally as a reason for adopting a particular position.

However, legislators also have another problem, that is, the point raised by Deputy Ó Caoláin. We have a responsibility to do what is deemed to be right, having regard to all of the citizens, having regard to all of the opinions and having regard to circumstances that emerge at a particular time. Those circumstances may not be the ones that were in the public arena one year ago, ten years ago or 30 years ago, but we must do the best we can and presume that we are doing right. We must do right, by ourselves and by the Constitution.

I do not propose to lecture anybody else in this House as to what one should do in these circumstances. I do not want to be told by anybody that I face the threat of excommunication unless I proceed in a particular fashion. Like everybody else, I am as good as I can be and probably not as good as I should be. For those who want to sit in judgment, they should judge everybody - there are many judgments hanging in the balance in this country over the past 50 years.

This also gives us an opportunity to come out of the valley of the squinting windows and come into the light and recognise some of the debate which has been targeted at some of us over the past six months for what it is, and the undercurrents displayed therein. In particular, I would posit to the House tonight that there is an undercurrent of disrespect for women, suspicion of women, and suspicion that women are liable to do wrong and opt for, in this particular case, abortion virtually in every circumstance. That is an injustice we should not do. The male population of this country should recognise the significant contribution women have made to our society in difficult times, economically, socially and of every kind, when many of them were condemned to oblivion and were restrained and restricted in where they could go and what they could do if they did what was seen as wrong by society at the time. Let society stand up now and be counted, individually and collectively. Let us, as Members of the House of Parliament, recognise that we also have a duty to the women of this country as well as to those who would seek to divert our attention in a different direction. This is important at this time.

In particular, I want to address the issue, suggested in some posters, to the effect that this Bill was a deliberate attempt to kill babies up to the time of birth. That is incorrect. There is no such proposal in the Bill. Anybody who can within reason read the English language should recognise that. It is wrong to suggest that. It is disingenuous and misleading the people, and those who say that know full well that is wrong.

As we know, the only provision in the legislation is for situations where the life of the mother, as opposed to her health, is in danger and then only after careful consideration and reference to professionals in the field at the time and cross-checking and double-checking.

I have heard it suggested that the Supreme Court is wrong in its decisions. This is a common complaint against court decisions from people who have a decision made against them. The Supreme Court decided on the case as presented to it at the time. The judges of the Supreme Court had to make a decision. They could not shilly-shally. It was a convincing majority decision rather than a split decision. They made their decision based on the evidence presented to the court. There is not much sense in suggesting now that if they had more evidence they might have made a different decision. That is pure hypothesis and it does not stand up. They made the decision in good faith. It may be that this does not set a precedent but if a similar case is presented again tomorrow or next week the judges of the Supreme Court will have to make a decision again. They cannot opt out. They will make a decision on the basis of the legislation and the evidence before them.

It is alleged the present Government is legislating for abortion, to create a situation that did not exist before. This is not true. It has been suggested to me and to other Members in recent correspondence that there was no need to legislate. That is not true because if there is no clarity in the legislation and no legislation other than the decision of the people as interpreted by the Supreme Court, then it will be a defence in some cases, at some time in the future that there was no clarity, no statute law to support what was done or not done. The result would be disaster.

I am totally opposed to abortion, as I am sure is virtually every other person in this House. I do not regard it as a remedy for anything. However, there are tragic circumstances arising from time to time where an intervention might have to be made in order to save the life of the mother. I did not hear a great deal of emphasis on the need to ensure that the lives of mothers must be protected in many of the submissions we received and listened to over the past six months. The lives of mothers are important as well. The mother is an adult and in full control of her circumstances and surroundings but this may not always be the case. She may have a condition that has gone past the point at which she is able to contribute. Then it rests with those professionals around her to make a decision. It had better be the right decision in the case of both the mother and the unborn child because if the decision is not made or if the condition is ignored and tragedy ensues, there is no good saying that these things happen. We are in the business of ensuring that there is clarity for those professionals on one side or the other who may decide to prescribe a particular procedure.

I fully realise that people with conscientious objections may say - rightly so - depending on their own preference, that they do not wish to be involved in such procedures. This applies in the UK and in most other jurisdictions. However, the patient or patients - mother and the unborn child - have a right to clarity and to know that justice is being done and that some particular course is applicable and will be followed. Otherwise, it will be at the behest of whoever has the particular preference, depending on the side of the argument. I attended the hearings in their entirety. It is not true to say that there was unanimity in respect of psychiatric or even medical evidence. There was a difference of opinion. Nobody suggested for one moment that abortion would be a cure for suicide but it was not suggested that a situation would never arise where this did not become a possibility. In a society that has been beset by suicide as much as our society, it would be very remiss of any professionals to avoid or overlook the issue. To be fair to them, they did not do so. They were not as judgmental as people predicted. There is a tendency for people to quote those whose opinion coincides with their own. There is a certain pattern running through the system and I can predict the likely response in the event of a particular question. Legislators understand this to be the case. However, in the case of a woman who has a crisis in the pregnancy such as an issue of physical or mental health, if nothing is done the woman will die. The Constitution protects the life of the unborn and it also protects the life of the mother. It is a question of what is the right thing to do. In my view, we need to legislate for this situation in order to ensure some uniform response in hospitals and among professionals and some uniformity in the way the patients are treated. Otherwise it will depend on which hospital a woman elects to attend when pregnant or whether she decides to go to the UK where she will receive a different type of treatment. We have a duty to legislate which is not intended to liberalise the availability of abortion. It is a legislative procedure to inhibit and to proof the basis and the grounds under which a termination could occur. That is for the benefit of both the mother and the unborn child and I strongly support it.

I have to be somewhere else in a couple of moments. Reference has been made in the debate to other jurisdictions. I do not understand why such references are made. We have our own Constitution, independent of other jurisdictions. We can decide ourselves and the people have decided. I remind any of those who have any doubts that the people decided twice about the suicide clause. If once was not enough they decided twice. The argument will be that they did it for different reasons. The reasons are not important. The people made their decision and they did so in good faith and knowingly, in the full and clear knowledge of the effect of that decision.

Those of us who have been in this House for a number of years should be aware, as should newer Members, that it is an issue of who governs. Do the legislators govern or someone else? Are we controlled from inside the country or outside the country? Are we influenced by people from other jurisdictions who have their own views? Do we make up our minds based on our own knowledge and on the Constitution? As legislators we must legislate for all of the people, fairly and without fear.

What is the Government playing at tonight? This nonsense of continuing until 5 a.m. is demeaning of everyone here in the House.

It brings the House into complete disrepute and there is absolutely no need for it. I do not know what the Government's game is. I do not know what it is doing if it believes it is somehow smart or clever to allow people to tease out the legislation until the early hours of the morning. It is completely wrong and there is no reason we could not go home, have a night's sleep and return here at 10.30 a.m. to resume the debate and, if necessary, continue on Friday. The Government is really bringing the entire House into disrepute with its carry-on tonight. It reflects very badly on everybody, but particularly the Government.

Unfortunately, the debate on abortion has traditionally been very much dominated by the two extremes of the argument. Most people are very much turned off by the two extremes, namely, the pro-life side and the pro-choice side. The reality is that the vast majority of people occupy the middle ground. We do not hear from the middle ground often enough. This legislation does not reflect the views of the middle ground. In many ways, it does not go far enough and, in others, it goes too far. It would be much more honest if the Government decided to address the issue of abortion in a way that reflected the reality of the issue and in a way that the public would support.

The vast majority want a regime that does not result in abortion on demand or a very liberal abortion regime. Equally, most recognise the very real and difficult circumstances that arise for people when very difficult calls have to be made in respect of balancing the two sets of rights. For most people, the starting point is a belief that we are talking about two sets of rights, the rights of the woman and the rights of the unborn. It is important that we keep this to the fore all the time. There is, however, a limited number of circumstances in which those rights must be balanced. These are the difficult circumstances. I refer in particular to inevitable miscarriage. Speakers tonight on both sides invoked the name of Savita Halappanavar to support their argument. This legislation has very little to do with that tragic case. However, there are inevitable miscarriages and this legislation does nothing for people who find themselves in such circumstances. It would be serving the memory of that unfortunate woman well if we dealt with this matter and the very close to dangerous circumstances that currently obtain in many of our general and maternity hospitals through under-resourcing of the services. This issue was referred to by a number of speakers who appeared before the health committee. I refer also to the tragic circumstances in which several hundred Irish women find themselves every year when they discover they are carrying a foetus with fatal abnormalities such that it is not compatible with life outside the womb.

There is fairly broad public support for addressing circumstances in which women find themselves pregnant as a result of rape and incest. It would have been much more honest for the Government to have set out to address those real-life issues that force people into circumstances in which they feel the right thing to do is terminate a pregnancy. Legislating for those circumstances would have public support. Unfortunately, that is not the approach taken in dealing with this issue in the round. The principal concern for the two parties in government has been the politics of the matter rather than the reality. We have a political proposal that is not a solution by any means. It is quite disingenuous of the Government to suggest it is addressing this issue. It is failing to address the very difficult circumstances to which I referred and the legislation is quite seriously flawed.

I very much welcome sections 7 and 8 of the legislation, which provide the clarification and certainty that women deserve and which the medical profession has been looking for. However, there are serious flaws in the provisions in section 9 with regard to circumstances where a woman presents as suicidal. There was much talk earlier tonight about the issue of suicide, which is a very pressing issue in our society. It is a major problem, particularly among young people. It should be dealt with and services should be resourced. Services are desperately under-resourced in spite of many promises over recent years.

It is important to bear in mind that what is referred to in section 9 is a very particular set of circumstances. The Bill does not provide for the circumstances of a woman with an underlying psychiatric condition. In such cases, other treatments are provided. This legislation provides specifically for cases where women present as suicidal as a result of their pregnancy. A very peculiar regime is being proposed that would provide for termination of pregnancy but make a distinction between termination of pregnancy and ending the life of the unborn. I am not aware of a regime like that in any other country. That, in itself, raises many issues. Most notably, Dr. Sam Coulter Smith spoke about this at some length at the hearings. The kinds of issues he raised are very serious and he raised them at some length, both in his written submission and oral presentation. He was raising the issues on behalf of a large number of his colleagues. He said on a number of occasions that this legislation raises the most serious ethical issues for the medical profession. Many in the medical profession regard the provisions as unworkable and believe they place doctors in virtually impossible ethical and medical positions. Despite the concerns having been raised, they were not addressed in any form at the hearings, on Second Stage or on Committee Stage. The questions remain hanging in the air and have not been responded to, unfortunately, by any of the Ministers involved with this legislation.

Dr. Coulter Smith made the point very clearly that it is very rare for women to find themselves suicidal as a result of their pregnancy. It was suggested that the rate is one in 500,000. It was also suggested that the medical profession is legally and ethically obliged to practice evidence-based medicine and that there is no evidence to suggest the termination of pregnancy is any kind of treatment for suicidal ideation or intent.

Dr. Coulter Smith raised the scenario of a pregnancy of between 22 and 24 weeks where a doctor is put in an impossible position when a request is made for a termination. The doctor knows carrying out a termination will not be a treatment because there is no evidence to suggest termination is a treatment for the suicidal intent. Doctors have a responsibility to the unborn child and they are expected to carry out a treatment that will likely result in a child being delivered who has serious disabilities. How is a doctor expected to balance the responsibility to the woman with the responsibility to the child to do no harm? As Dr. Coulter Smith said, that places medical practitioners in an impossible position. The legal difficulty and ethical dilemma has not been addressed in the debate on this legislation.

Where doctors have no legal protection for taking action that will result in a baby being delivered prematurely and all that may go with that, and where there is no protection for doctors in the case of them refusing a termination on the grounds that they conclude that the woman is not suicidal, there is a fear among many people about the implications for doctors in those circumstances. What if the woman goes on for whatever reason to commit suicide at a later point? Is the doctor liable to be sued? In the case of the doctor taking action to prematurely deliver a child of early gestation and him or her being seriously disabled, what is the legal position of the doctor? Can he be sued? Can the State be sued? Can the hospital that the procedure takes place in be sued? All these serious questions were raised on Committee Stage and answers were not provided for them.

They were answered.

I would like to elaborate on the issue of the lack of gestational limits. An extraordinary regime is proposed under which termination of pregnancy can take place right up to 39 weeks. At 39 weeks, there is a good chance the baby will be fine. Perhaps at 32 weeks that would also be the case but, as was pointed out earlier, the further one goes back to, say, 22 or 23 weeks, the greater the risk of permanent disability. Deputy Ó Cuív went into the risks involved at different stages of pregnancy. I suggested on Committee Stage that we should provide for a gestational limit in those circumstances but the Minister of State, Deputy White, and others stated we could not introduce them because it is a constitutional right and such rights cannot be limited.

That is one view but there are many other views. Mrs. Justice Catherine McGuinness suggested during the joint committee hearings that it would be wise for the Dáil to put a gestational limit on terminations. Professor Gerard Whyte of Trinity College Dublin law school stated: "The decision in X can have no application to cases in which the pregnancy is at such an advanced stage that it may be practicable to save both lives." To that extent, he considers the right to an abortion established in the X case to be a time limited one that expires once it is practicable to save the lives of both the mother and the foetus. If he is correct, then it would seem entirely appropriate for the Oireachtas, if it saw fit, to legislate for time limits, indicating at what point in the pregnancy it could be deemed practicable to save both lives. I do not know if this has been considered at all. The curt replies we got to this issue suggest that it has not been seriously considered.

On Committee Stage, I suggested that if it is the watertight legal advice - I do not accept it is because Professor Whyte's point is at least strongly arguable and is supported to a certain extent by Mrs. Justice Catherine McGuinness - then, at a minimum, an undertaking should be given before this legislation is commenced to hold a referendum along with the other referenda in October to provide for this. The public does not support a termination regime without gestational limits and which provides for termination of pregnancy right up to the 39th week. That is a serious flaw in this legislation.

With regard to what is proposed in section 9, the proponents of the Bill and even people who have serious difficulties with it say it will not make a difference and that the numbers will be tiny. However, the truth is we do not know because there is no clinical way of assessing a person's suicidal intent in cases where there is no underlying psychiatric illness. If a woman presents as suicidal by virtue of her pregnancy, there is no clinical way of establishing whether that is the case. I referred to my concerns that the default position may well be because of the lack of legal protection for doctors in those circumstances that the safer action for doctors may be to agree if the woman says she is suicidal. When we consider this in all honesty, we cannot ignore the experience in other jurisdictions where termination of pregnancy has been introduced on these grounds and what has happened in most cases in that regard.

I do not believe the Government is setting out to introduce a liberal abortion regime but because of the difficulty in a diagnosis of suicidal intent and because of the likely unintended consequences, there is a concern that under this legislation the rate of termination will increase significantly over time. The public does not want that to happen generally in these circumstances. It is important for that reason that the operation of this legislation is monitored clearly and that we have reports on how it is operating. The legislation, as drafted, provided for the Minister for Health to report on the notification he receives.

I did not believe the headings under which those notifications were to be reported were sufficient. If we are honest about this, if we want to be open about it and see what its impact is, we should be entitled to information about the grounds on which terminations have been granted. That is a breakdown between sections 7, 8 and 9. We should be entitled to know what was the outcome of those terminations for the woman concerned and for the unborn. I had suggested amendments along those lines. When I was going through the legislation and the amendments I was very concerned to see the Minister's amendment which very much weakens the reporting arrangements on the notifications he has received. Rather than giving a breakdown of where procedures have been carried on, under what sections, who carried them out, whether there were significant clusters and that kind of thing, the Minister is proposing to amend the legislation so as to weaken those reports. Again one would have to ask why this is happening. If the Minister believes what he says the impact of this legislation will be why would he not be open about such reporting? That is another flaw.

Overall, we should have a review of this legislation, giving people the benefit of the doubt. There are those on the Government side who say this legislation will not result in a significant increase in the number of terminations. If that is the case let us have full reports every year and a review of the legislation after, for example, three years. That is reasonable. Given that nobody can say for certain what will be the impact of this legislation, why not have a review after three years? Let us discuss it here openly and look at the impact it has had.

That the Government will not agree to that and is being much more circumspect in respect of reporting arrangements lead me to have serious concerns about this Bill. Overall, the principal flaw I see in the legislation is in respect of the lack of gestational limits. That provides for a regime which most people would find unacceptable. For that reason I cannot support the provisions of the legislation in that regard.

I have been listening with great interest all day to this debate. When I was not in the Chamber I had it on in my room. A number of things strike me about it in the context of the amendments we are dealing with and going back to first principles might help. The first principle is that the X case involved a 14 year old rape victim who was suicidal. Many of those who oppose section 9 in the Bill have found it very difficult to refer to those facts. Concerning the rape victim who was 14 years of age, a psychologist gave evidence to the court, which was uncontroverted to the High Court, that she was suicidal and that if the pregnancy was not terminated she would take her own life. Disparaging remarks were made about the psychologist by my colleague, Deputy Peter Mathews. "Was he not qualified for only six years?" he asked. He may have been qualified for only six years but he was a qualified psychologist. In the case of some speakers, though in fairness to everybody who spoke, not all, the humanity this legislation is trying to address has got lost in legal jargon. Some of this jargon has gone beyond anything accurate. I will put it this way if I may - rhetoric does not make something that is inaccurate correct. It is important that is understood.

The X case was a seminal case to interpret Article 40.3. 3° of the Constitution and was a judgment I have written about academically and extensively. It was not a particularly complex judgment - it has been made to sound more complex than it is by some. Simply said, where there is a real and substantial risk to the life of the mother posed by pregnancy, the pregnancy can be terminated. Many people who are opposing this provision have focused on the life of the unborn and have said very little about the lives of women. I come from a perspective I know many people in this House share, where I regard the life of an unborn child as of extraordinary value. However, I regard the life of the mother as of equal value and I recognise that if the mother takes her life the unborn child will not survive. The unborn child's life is dependent on the life of the mother.

We have been subject to a lot of legal casuistry, what I describe as à la carte interpretations of High Court and Supreme Court judgments. Again I emphasise that rhetoric does not make what is said right when it is clearly and blatantly incorrect. What is incorrect about what has been said about the X case? We have been told a number of things about it, first that it is not a binding decision. As a lawyer who has practised for more than 30 years I can say the X case is a clearly set out decision of our Supreme Court that binds the lower courts in this State, and the Supreme Court, until such time as it might formulate a different view. I do not know on what basis anybody can say the X case is not binding.

The next issue is that we were told by former judge, Hugh O'Flaherty it was a rather exotic statement. I do not know whether he thought this through fully or whether he was accurately reported. We were told that because subsequent to the Supreme Court judgment in the X case the poor unfortunate 14 year old victim of rape suffered a miscarriage, in some way that made the five judgments, delivered in a 4:1 majority, what is described in legal parlance as obiter dicta, or a judgment which is not directly on the issue before the court. To fall into other legal jargon, the principle a court utters on the central issue before it is called the ratio decidendi. Obiter dicta is all about side issues the court has not been asked to determine, where judges make some comment about issues of indirect relevance which are not before the court. There was only one issue before the Supreme Court - where there is a suicidal pregnant victim of rape is it permissible to terminate the pregnancy if one accepts there is a real and substantial risk to her life? A majority, 4:1, of the Supreme Court answered that very simply with a "Yes". That particular rape victim suffered a miscarriage shortly before the termination was to take place but this does not, on any basis of legal interpretation, turn a decision of the Supreme Court, the central decision on the main issue before it, into something that is either irrelevant or a side issue that does not bind the courts in later cases. For any lawyer to say otherwise is grossly and serious inaccurate. For a former Supreme Court judge to suggest it is truly bizarre and inexplicable.

It is important to say this. We are told by some that the Supreme Court judgment was mistaken and that we can ignore it. Is that a principle we are going to adopt in this House to decisions we do not like delivered by the courts?

What about the whistleblower legislation?

The courts deliver decisions on a regular basis.

As Deputy Mattie McGrath has already spoken, will he, please, allow the Minister to speak, without interruption?

Some of the decisions the courts deliver make Governments uncomfortable. Litigants litigate. Citizens litigate against the State and win. Are we to say in this Parliament or in government, "Oh well, they got it wrong, we will ignore it"? That is not the way the separation of powers works. The separation of powers works on the basis that we respect the decisions delivered by the courts. It works on the basis that this Legislature, when enacting legislation, does so within the parameters prescribed by the Constitution and as interpreted by the courts, particularly the Supreme Court. The Government, when bringing forward legislation, has a constitutional obligation to bring before this House legislation that is constitutional. If there is any doubt about the constitutionality of legislation, it is open to the President to refer it to the Supreme Court. This legislation is circumscribed by the constraints of Article 40.3.3o and the manner in which the Supreme Court has interpreted it. It is no more, no less.

Some Deputies who initially welcomed this legislation went out on the plinth this evening to oppose it because it does not do a variety of things that cannot be done within the current constitutional parameters. I find this surprising. This legislation cannot address some of the issues Deputy Róisín Shortall mentioned, or that Deputies Mick Wallace, Clare Daly, Richard Boyd Barrett and others have announced it should address and they are now, apparently, not voting for it. If this legislation attempted to address the issues these Deputies are calling for it to address, it would be unconstitutional. First, the Government could not constitutionally have published legislation which covered these issues. Second, if it covered them, it would certainly be referred to the Supreme Court by the President under Article 26 and third, for certain, based on the precedent of the Supreme Court in the X case and having regard to Article 40.3.3o, it would be struck down as being unconstitutional. The effect of this would be that instead of finally putting in place a legal architecture to provide clarity for the medical profession and women whose lives are at risk as to what are the procedures to bring about a termination to save one's life, we would be back where we started, in a big black hole with no legislation, simply with court principles. These court principles do not provide and prescribe adequate procedures, which is another reason to have this legislation.

I was interested in listening to those opposing the Bill. I cannot recall hearing during the day - I am sure I am open to correction, but perhaps I missed it at some point - a reference by those opposing this legislation and dealing with this issue that the amendments address to the European Court of Human Rights in the A, B and C case which has stated we have violated the rights of citizens of the State as delineated in Article 40.3.3o of the Constitution because there is supposed to be a legal architecture that ensures that where a woman's life is at risk, she knows how to go about dealing with the medical profession and seeking the help that she requires. That is about protecting citizens. Article 40.3.3o was given birth to or conceived in group-think. I was in the House during its gestation period. It was proposed by individuals who, inspired by some from America, said the Supreme Court was one day going to legislate for abortion on demand and that, therefore, we needed Article 40.3.3o which would ensure there would never ever be a termination anywhere in the State. They saw it as genuflecting in the direction of the safety of woman, but it did not have much in reality to do with women. The disappointment for its originators has been that it has provided some protection for the rights of women, but they do not like this and say the Supreme Court is mistaken. The description of the Supreme Court being mistaken is not new to this debate. It has floated through the ether with much repetition since 1992. I have very strong views on this issue and they are not new. They are on the record of the Dáil, over decades, but they are of no relevance to this legislation. This legislation provides an architecture that no Government has previously had the courage to provide to ensure we will know how this issue should be dealt with.

Various Deputies have made various comments. Deputy Róisín Shortall refers to the gestation issue and full-term terminations. I have seen the posters which suggest this legislation concerns terminations in the 39th week of pregnancy. If a woman's life is at risk in an advanced pregnancy and some medical intervention is required, that is early delivery. It is not murdering the unborn child. It is about doing what one can to save the child and the mother. All of us in this House have friends, relatives or neighbours who had an early delivery because of substantial medical complications and in the vast majority of cases mother and child came through.

There was a great deal of excitement outside the House and I noticed in some of the reporting from this House the suggestion there was some very important decision delivered by the High Court that the Government had ignored, of which my colleagues, the Minister for Health, Deputy James Reilly and the Minister of State at the Department of Health, Deputy Alex White, had no knowledge and that perhaps the Attorney General did not know anything at all about it. Reference was made to a judgment delivered in the High Court on 15 February 2006 in the case of Lidia Cosma v. the Minister for Justice, Equality and Law Reform, a case taken nominally against one of my predecessors. The suggestion is there is something terribly profound in this judgment which indicates that the Government has got it entirely wrong and that we should not be addressing the issue of the suicidal mother who is pregnant. I am afraid it is a little like the interpretation of the X case, it is an à la carte interpretation of what the High Court stated. What is curious is that this judgment confirms that the Government has got it right and effectively confirms that there are circumstances in which suicide can pose a real and substantial risk to the life of a woman or a mother. In the judgment Mr. Justice Hanna quotes expressly an extract from the X case as a guiding principle in the decision he had to make. A Romanian national who had arrived in the State on 5 September 1999 applied to be allowed to stay here. She applied for asylum alleging she was suffering religious oppression. She went through the various applications that could be made through the Refugee Applications Commissioner, the Refugee Appeals Tribunal and the conclusion was that there was no basis on which she should be granted asylum. She then changed her lawyer and it was alleged that if she was deported - a deportation order had been made - she would commit suicide.

The submission of Mr. Justice George Birmingham, then a senior counsel acting on behalf of the Minister at the time, was effectively accepted by the court. In it he said:

In reality there was no evidence of any real and substantial risk of suicide upon which the Minister could or should act. The threat of self-harm and the circumstances giving rise to it were not raised until well into the year 2003. [This was after all the decisions had been made.] The applicant had originally sought refugee status on the grounds of religious persecution and no reference was made by her to the circumstances which allegedly gave rise to a suicide threat, namely the tragic death of her sister’s child in her original application. Thirdly, it was argued that the documents compiled by Dr. McCaffrey, who is a psychiatrist, and submitted by the applicant’s solicitors did not amount to psychiatric reports to which any great weight should be attached. They were inadequate and offered no sufficient diagnosis or prognosis. They comprise no more than a handwritten record of a narrative account given by the applicant to the doctor as a result of one meeting with her and subsequent observations of an unsatisfactory and inconclusive nature.

The issue in this case was to determine if this individual was truly at risk of committing suicide. Was there evidence before the court that could be relied upon? Was there evidence that she was suicidal before the then Minister made the final decision on the individual’s deportation? The conclusion of the court was:

I am not satisfied that the applicant has established that there was a real and substantial risk that she would kill herself. There was undoubtedly a threat to do so. The background circumstances of this threat were investigated and analysed in detail. During the course of this confirmation in my view more weight was attached to the medical reports by Ms Keane [an official in the Department] than I would consider appropriate ... In the first instance they do not evidence whether or not the doctor ever treated or had intention of treating the applicant. By any yardstick, the reports fall well short of what one would expect in terms of actual analysis of the applicant’s condition, an objective diagnosis. There was no attempt to address the issue of treatment even in the event going ahead.

This was not a case about saying an individual was suicidal and that we should provide treatment. This was a case about saying there was no real basis for determining she was suicidal at all. What was particularly interesting was the judge referred to a matter which is directly relevant to what we are discussing tonight, namely, the X case. He stated:

This case dealt with the issue of whether the right to life of the mother prevailed over that of the unborn where there was a real risk of suicide. The Chief Justice in that case stated:

In my view it is common sense that a threat of self-destruction such as is outlined in the evidence in the case which the psychologist clearly believes to be a very real threat cannot be monitored in that sense and that it is almost impossible to prevent self-destruction in a young girl in the situation which this defendant is if she were to decide to carry out a threat of suicide.

I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and the findings which he has made that the defendant has satisfied the test I have laid down as being appropriate and established as a matter of probability that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by the termination of her pregnancy.

The difference between the X case and the Cosma case is that in the X case there was direct evidence given by a psychologist which was not contradicted. There was no counterevidence claiming the woman was not suicidal. There was evidence of a professional psychologist that she was and the evidence was accepted by the Supreme Court and the High Court and laid the foundation for the decision. In the Cosma case it was determined that there was a single meeting between a psychiatrist and the woman who simply wrote out the narrative. There was no analysis, diagnosis or confirmation that the woman was truly suicidal. The judge went on to say:

A crucial issue when the Minister made the decision was the Minister’s knowledge of whether there was a real and substantial threat to the applicant’s life by suicide as a direct consequence of his decision.

Any suggestion the Cosma case undermines the legal analysis on which this Bill is based is entirely, completely and utterly inaccurate, no matter how beguiling that argument may be in its presentation. What is interesting is that the emphasis in the X case was that there was uncontroverted evidence that someone was suicidal. Since the enactment of the article in 1983, there has been no legal architecture for those decisions being made. Section 9 is an architecture which will involve an assessment undertaken by two psychiatrists.

I have heard it said the obstetrician should have no role. Obviously, the psychiatrists will be the primary individuals determining whether someone is truly suicidal. The obstetrician is important in the context of the safety of the mother, as he or she will undertake whatever medical procedure is required, as well as in the context of the safety of the unborn child, if it is a circumstance in which the life of that child can also be saved. To suggest the obstetrician has no role is not accurate.

This legislation has been produced by the Government on the basis of the best advice of the Attorney General, the State’s law officer who advises the Government. She has an onerous and particular duty which she carries out in good faith. She is an independent constitutional officer. We in this House are entitled to be guided by the advice she gives and show respect for it. This legislation is not simply a product of the Minister for Health or his Department. It is a comprehensive Bill, designed to address an issue that every Government in the past 30 years has failed to address and is based on the best legal advice available to us.

I am disappointed that some who have called for this legislation will now vote against it. I am disappointed that some who want other issues to be addressed refuse to recognise or for political position will not recognise the limitations of where we are. It will be no surprise to any Member for me to repeat for the 30th time in the past 20 years that I believe it is a great cruelty that a woman, where there is a fatal foetal abnormality, cannot have her pregnancy terminated, as it cannot be done without a referendum.

The people would have to agree in a referendum. I do not know what the outcome of that referendum would be, should it ever happen in the future. In the context of the Government-----

Will they be given an opportunity to agree in a referendum?

-----our commitment was to examine what needed to be done following the A, B and C case and the X case and we are delivering on that commitment. We need to get on with enacting this legislation and let it settle down. There are people outside this House, even some inside it, who are suggesting this will lead to abortion on demand or is the thin end of the wedge, or that this is a single-sided conscience issue. First, this is as restrictive as legislation could be, which I know is something to which some Members object, but the restrictions are required by the Supreme Court, no more, no less.

It is supposed to be protective, not restrictive.

Second, the legislation recognises the rights of the unborn and the rights of the mother and seeks to have the balancing of rights that Article 40.3.3o prescribes, but, ultimately, it seeks to ensure that where the life of a mother is at real and substantial risk, a required intervention can take place.

Some new Deputies have only come to this issue in recent weeks and have been at the receiving end of very substantial lobbying by individuals outside the House who are always, categorically, infallibly certain about everything they have to say. The only thing I will say to those Deputies is, "Beware." The same people suffered from the same sense of infallibility 30 years ago and there is not a single legal prediction that they have made on which they have ever been proved right in those 30 years. Let us not get carried away with all of that.

Reference was made to the Bill as being a failure of our culture. Do we want to be proud of not protecting the lives of women? Is it part of our culture that we just bury our heads in the sand and ignore the fact that 4,000 to 5,000 women effect terminations in England every year? I was here in 1983 discussing this issue when I said the constitutional amendment would have no impact on that figure and that the trail to England would continue. I heard similar comments about embracing all of the women going to England to have an abortion. We even had an Attorney General who tried to get an injunction to stop them travelling under the guise of a different Government. The people resoundingly put a stop to this in a referendum. For those who think the majority do not believe a raped, suicidal 14 year old should be denied the possibility of a termination, I can tell them that despite the atmosphere in this House and all of the pressure being put on Members, ordinary, sensible people outside the House who come to this issue from a common-sense view and are beating no drum, most of whom do not spend their time writing to any of us, will take the view that if their daughter was raped and suicidal, they know exactly what they would do and they would not need to debate it at the length we debate the issue in this House. Many sensible people take the view that if their daughter was raped, she should not have to be suicidal for her pregnancy to be terminated. That is the view of an overwhelming majority outside the House. I believe most Members, if they had a 14 or 15 year old daughter who was a victim of rape, would take the same view. We cannot address that issue within the current constitutional parameters, but we can ensure that if a victim in these circumstances is suicidal, we will provide her with the protection she deserves. That is what we are doing and why the amendments tabled to stop us doing from so fail completely to reflect the views of the overwhelming majority who are watching this debate; those who remain awake.

I am not going to delay the House too long because I have spoken several times on this issue, back in December when it was first mooted and again on Second Stage. I am happy that I live in a country that has so far not allowed abortion. I understand we have been in a very difficult position for the past 21 years since the Supreme Court's decision in the X case. That judgment found that abortion was legal under the Constitution if there was a real and substantial risk to the life of the mother. The court held that this also included the threat of suicide. While I had many serious concerns about the danger that any legislation or regulations in this area could be broadened in the future, I have received commitments that this will not be the case.

I am not a legal person, unlike the Minister who spoke before me. I would disagree with him on many issues, but we are in the one party. From reading up on the X case, there is an opinion that some of the opinions at the time were flawed. The evidence of the threat of suicide came from a Garda report, not from the medical profession. I seek clarity on this issue and I am sure the Minister for Health will provide it for me when he speaks tonight. It was Mr. Rogers who stated this at the time. No expert witnesses were called and there were no cross-examinations of the evidence presented. Criticisms were made of the evidence in the X case by a senior judge at the time, Mr. Justice Hederman. What concerned me greatly was that a number of people around the X case were actively campaigning for the introduction of abortion in Ireland, which would be very much against my conscience.

This provides us with an opportunity to begin discussing solutions to problems women face, especially the root causes of abortion for the 5,000 women whom we are led to believe go abroad each year for an abortion. This is because there is a huge lack of practical resources and emotional supports for women with crisis pregnancies. The services are not available and this leads to many women being traumatised in the State. It is an issue that forces many of them to travel abroad for an abortion. It is an issue that cannot be ignored. I sympathise with all of those who face this crisis, but better supports for women need to be put in place and would go a long way towards dissuading many women from travelling abroad for an abortion.

What evidence is there to suggest a woman who is suicidal and has an abortion enjoys better mental health afterwards? Perhaps the Ministers might cite studies and the facts in this respect. What markers are used to help to identify that a woman is going to commit suicide?

Can we be sure those markers are accurate?

The Minister of State says the Bill is about saving lives. Does the Title of the Bill reflect everything contained in it? We need clarity on that issue. My voting intentions tonight are based on the best available medical and legal advice that it will protect women and babies during pregnancy.

I consider this an ethical, moral and medical issue rather than a political one. We must admit that in the run-up to the last election all of us sent out letters stating that Fine Gael would not legislate for abortion. I want to make it clear this legislation is not for abortion. In March 2002, when the Minister for Finance, Deputy Noonan, was leader of Fine Gael, he stated that the party would bring forward legislation in line with the Supreme Court's decision in the X case. That is what we are now doing. I was assured by the Taoiseach that the Bill will fully protect the lives of pregnant women and their unborn children despite scaremongering to the contrary. It is a restrictive Bill and there has been a lot of scaremongering. There are no restrictions at present and this Bill will set the bar considerably higher. That is important to all of us. We are addressing sections 7, 8 and 9 of the Bill. I have already spoken at length on the Bill and on every occasion I stated that I never want to see a situation in this country in which a Government introduces abortion on demand.

The amendments we are now discussing deal with what are clearly the most contentious aspects of the Bill, namely, the provisions under section 9. I listened closely to Deputy Walsh's contribution. He made a point with which I fully agree. In addressing his own amendments, he said that had we omitted suicide from the Bill we would not be acting in accordance with the Constitution. That is true and, in fairness to the Deputy, his amendments attempt to do other things without attempting to fully remove section 9. As he rightly acknowledges, we cannot do that. If we are to be true to the Constitution as interpreted by the Supreme Court in the X case, we cannot omit the threat of loss of life arising from suicide. We cannot pick and choose parts of the Supreme Court's interpretation of the Constitution. The opinion has been expressed that the judgment on the X case was flawed and somebody - I cannot remember whom - made the gratuitous suggestion that the judgment was manufactured by the Supreme Court. People may hold such a view but that is the law. The judgment has not been disturbed, varied or reversed by the Supreme Court in the 20 years since it was made.

A considerable number of questions have been raised in the course of the debate and some of them have been answered, although others were asked rhetorically. I have an opportunity now to ask one or two questions of my own. Are people seriously suggesting that we ignore the parts of the judgment they do not like? They say they have no problem with sections 7 and 8 but have a problem with section 9. That requires them to pick the parts of the judgment with which they are happy and ignore or exclude those with which they disagree, despite the uncertainty associated with such a course of action. At the minimum, a legal vacuum would obtain for doctors. Most important, women would be deprived of a right they unquestionably possess under the Constitution. Even if we were to leave this right out of the legislation they would still have it. It simply would not be legislated for. A procedure would not be established to determine the circumstances in which the right would be exercised but the right would still exist. Although the Oireachtas has many powers, it does not have the right to set aside or jettison a decision of the Supreme Court on the meaning of an article of the Constitution. That is not our job. We cannot rewrite the X case according to how we would like it to have been decided. We cannot decide the case again. We are not an appeal mechanism from the Supreme Court. We can go to the people to invite them to reconsider a matter if there is some doubt as to their true intentions. We did that twice and on neither occasion did they decide to change the relevant clause in their Constitution.

If we omit suicide we will not be acting in according with the Constitution as interpreted by the Supreme Court. That is why, for example, amendment No. 57 is unstatable. All of the amendments that propose to extract suicide from the provisions of the Bill are manifestly unstatable as a matter of law and would render what we are doing unconstitutional. There is no doubt about that.

There has been considerable debate about the nature of our role. It was suggested that we are in danger of cowering behind the Supreme Court and that it is wrong to say we are obliged to legislate. We have debated whether we are under some sort of cosh. Of course we are not subject to some sort of edict such that we are ordered to do something by the Supreme Court. That cannot occur and it is not what we are doing. The position is very clear. The people enacted the Constitution and they amend it as they see fit, as they did in 1983. Where doubts arise about the meaning of a provision of the Constitution, the Supreme Court decides the point in question. That is clearly set out in Article 34 of the Constitution. The problem in this and many other areas is that we cannot require the courts to adjudicate on issues of policy. Arguably, we ought never to look to the courts to address such issues but we have done so too often in this and many other cases. The other organs of the State, namely, the Government and, most particularly, the Oireachtas, have the responsibility for policy.

Deputy Creighton quoted Article 15.2.1o of the Constitution, which provides that the Oireachtas has the sole and exclusive power of making laws for the State. That is true and there is no doubt about it. The problem occurs when we fail to do. That is the difficulty here; we have failed to do it. If the Oireachtas declines or fails to legislate, as it has, there is no question or suggestion that it will be sanctioned or punished in some way. We are not saying that. That is nonsensical. There is no question of there being a punishment or sanction against the Oireachtas or its Members for not legislating.

The question should not be whether we can get away with not legislating. We know we can get away with not legislating, because we have got away with not legislating for 20 years. The question should be whether it is right to allow the legal position to be and remain so uncertain as to lead to a state of affairs, as is the case here, where a woman has a constitutional right but cannot avail of it. There is, at the least, a serious doubt as to how she can avail of it and in what circumstances.

When we legislate, as we are doing here, we are prohibited by Article 15.4 from enacting any law which is any respect repugnant to the Constitution or any provision thereof. We are subject to the Constitution in that important sense. However, we have responsibilities and duties. It is not that somebody is standing somewhere ready to sanction us in the absurd way that has been suggested. That is not the position. When we think about our role here as legislators, we have responsibilities and duties. We are sent here and are given important duties to carry out. The courts have their duties, which are different. The people have their duties also, which they exercise in the enactment of a Constitution and in decisions to amend it or not.

We must understand our duties in this situation. The suggestion that when we say we are obliged to legislation this connotes some sort of compulsion misrepresents the point being made here. We are talking about duties and responsibilities and about the Parliament living up to its responsibilities, which it has failed to do to date. I find it hard to understand how this Parliament doing its duty to legislate within the context of the Constitution, as interpreted by the Supreme Court, undermines or risks undermining the separation of powers. The opposite is the case. Far from undermining the separation of powers, acting and legislating now upholds the principle of the separation of powers and makes it very clear where the duty lies to legislate, which is here.

An additional dimension is the broader question of the decision of the European Court of Human Rights. This brings us back to whether we have been pressured or told we must do something we do not need to do. I accept the decision in A, B and C v. Ireland does not enjoin the Oireachtas to legislate in a particular way. Nobody ever said it did. What we are required to do as a consequence of the European Court of Human Rights decision is to ensure there is legal clarity, whatever the law is. We decide on what the law is, not Europe or the European Court of Human Rights. Nobody ever said we were bringing forward legislation under some sort of diktat from the European Court of Human Rights. That is not the case.

What we did say was that the European Court of Human Rights decision in A, B and C v. Ireland, particularly with regard to Miss C, was that there should be legal clarity. It was up to us to decide what the law should be, but there should be a law. In deciding what that law should be, we must have regard to our Constitution and the interpretation of it by the Supreme Court. It is not a question of compulsion or of being ordered to do things. It is a question of clear, delineated roles, duties and responsibilities. We must face up to them and carry them out.

The Minister for Justice and Equality, Deputy Shatter, has addressed a number of the issues. It is late now and with all the discussion about extending the debate to 5 a.m. it hopefully will not come as a surprise to the public that we are capable of exercising our brains after midnight and can continue to debate this issue as we are required to do. I would like to touch on the reference to the point made by retired Mr. Justice O'Flaherty. Like the Minister, I found it somewhat bizarre and quite inexplicable that it could be suggested that because Miss X did not ultimately have a termination, this somehow cast doubt on whether she had engaged the right she had been found in the Supreme Court to have. I found it very difficult to understand as a matter of law that her failure to have a termination somehow cast doubt on whether she had engaged the right she had been found to have. I find it very difficult to understand as a matter of law that if a court determines somebody has a right, but the person does not avail of that right, this means the person did not have the right. This needs to be explained. It is not clear to me how that could be so.

The Minister, Deputy Shatter, has also dealt with the question of what constitutes the ratio of a case and what constitutes the core of the X case. With genuine respect, the suggestion that the finding of an entitlement to a termination in the X case was obiter is an unstateable and unsustainable argument. Mention was made of first year law students, but anybody who takes even a cursory look, let alone goes into the sort of detail one would expect, will see this. Chief Justice Finlay went through all the argument on that occasion, cited the decision of the High Court and other decisions relevant to the finding and then came to the conclusion:

I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no contested, and on the findings which he has made, that the defendants/appellants have satisfied the test which I have laid down as being appropriate and have established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy.

I cannot see how this could conceivably be regarded as obiter. Nobody could suggest credibly that this was beside the point or was not relevant to the decision. Manifestly, it is the decision.

There has been significant reference to Miss X and to the case and its circumstances. Therefore, I would like to read into the record of this debate what Chief Justice Finlay went on to say in this case, because it relates to the facts. He sets down the test that must be passed, applied and satisfied and then asks this question:

Has the appellant by evidence satisfied this test?

With regard to this issue, the findings of fact made by the learned trial judge in the High Court are as follows:

When the defendant learned that she was pregnant she naturally was greatly distraught and upset. Later she confided in her mother that when she learned she was pregnant she had wanted to kill herself by throwing herself downstairs. On the journey back from London she told her mother that she had wanted to throw herself under a train when she was in London, that as she had put her parents through so much trouble she would rather be dead than continue as she was. On 31 January, in the course of a long discussion with a member of the Garda Síochána, she said: "I wish it were all over; sometimes I feel like throwing myself downstairs." And in the presence of another member of the Garda Síochána, when her father commented that the "situation was worse than a death in the family" she commented: "Not if it was me".

On the day of her return from London the defendant's parents brought her to a very experienced clinical psychologist. He explained in his report that he had been asked to assess her emotional state; that whilst she was co-operative she was emotionally withdrawn, that he had concluded that she was in a state of shock and that she had lost touch with her feelings. She told him that she had been crying on her own but had hidden her feelings from her parents to protect them. His opinion was that her vacant expressionless manner indicated that she was coping with the appalling crisis she faced by a denial of her emotions. She did not seem depressed but he said that she "coldly expressed a desire to solve matters by ending her life." In his opinion, in her withdrawn state "she was capable of such an act, not so much because she is depressed but because she could calculatingly reach the conclusion that death is the best solution." He considered that the psychological damage to her of carrying a child would be considerable and that the damage to her mental health would be devastating. His report was supplemented by oral testimony. He explained that in the course of his consultation with the defendant she had said to him: "It is hard at fourteen to go through the nine months," and that she said: "It's better to end it now than in nine months' time." The psychologist understood this to mean that by ending her life she would end the problems through which she was putting her parents, with whom she has a very strong and loving relationship.

The psychologist who gave oral evidence as well as submitting a report, (which was admitted by agreement in evidence before the learned trial judge) stated that when he had interviewed this young girl and was anxious to have a continuing discussion with her parents who accompanied her and not having anyone available to remain with the young girl in the waiting room, his view of the risk of her committing suicide was so real, on his past experience in this field of medicine, that notwithstanding its obvious inappropriateness, he requested her to remain in the room while he discussed the problem with her parents.

It then goes back to the judge:

I am satisfied that the only risk put forward in this case to the life of the mother is the risk of self-destruction. I agree with the conclusion reached by the learned trial judge in the High Court that that was a risk which, as would be appropriate in any other form of risk to the life of the mother, must be taken into account in reconciling the right of the unborn to life and the rights of the mother to life. Such a risk to the life of a young mother, in particular, has it seems to me, a particular characteristic which is relevant to the question of whether the evidence in this case justifies a conclusion that it constitutes a real and substantial risk to life.

If a physical condition emanating from a pregnancy occurs in a mother, it may be that a decision to terminate the pregnancy in order to save her life can be postponed for a significant period in order to monitor the progress of the physical condition, and that there are diagnostic warning signs which can readily be relied upon during such postponement [in a physical case].

In my view, it is common sense that a threat of self-destruction such as is outlined in the evidence in this case, which the psychologist clearly believes to be a very real threat, cannot be monitored in that sense and that it is almost impossible to prevent self-destruction in a young girl in the situation in which this defendant is if she were to decide to carry out her threat of suicide.

I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy.

That is why the defendants were entitled to succeed in the appeal from the High Court to the Supreme Court.

Whatever anybody may think about the X case judgment, no one can suggest that it was decided without regard both to the humanity of the circumstances that were presented to the court or to the terms of the Constitution and the requirement to have in mind the right to life of the unborn as well as due regard to the equal right to life of the mother. That is not a passage from a decision of a court that would appear to any reasonable person to have been lightly decided or lightly arrived at. That is why I object to the suggestion made in this Chamber that the judgment was in some way manufactured. That is an unfair way of characterising this judgment, and I put that at its mildest. It is far from being a judgment where either the legal issues or the factual issues were taken lightly.

The Cosma case was dealt with by my colleague. With regard to the Attorney General v. Ryan's Car Hire Limited, I touch on this because I want to refer to a point made by Dr. Maria Cahill during the health committee hearings and which was quoted by the Minister of State, Deputy Creighton, earlier. Since it occurs to me, I want to make the small point that the constant suggestion that because the Minister for Health and the Ministers of State were not sitting through all of the hearings of the committee, therefore, we did not know what occurred there and we did not take the time to look at what happened there or to read the transcripts, or at least when we were available to observe it on the screen, is unacceptable. I know, from having discussed this issue with both my colleague Ministers in the Department of Health, that there was a full awareness of what was said at the committee. I myself went through the transcripts as best I could and informed myself as to what was said at the committee. I know Dr. Cahill raised these issues about Cosma v. the Minister for Justice, Equality and Law Reform and the Attorney General v. Ryan's Car Hire Limited because I looked at the transcript. I am not looking for any particular congratulations on that. It is just the job that we do. However, Members should not suggest we are not informed because we were not there. There are a good few Members present but we know there are colleagues who are able to watch and observe this debate without necessarily being in the Chamber, and the same is true of the committee.

The point about the Attorney General v. Ryan's Car Hire Limited is that it was suggested to the committee by Dr. Cahill that, because of the well-known decision of Mr. Justice Kingsmill Moore in that case, given no legal submissions were heard on whether suicidal ideation could validly satisfy the test in the X case, we could not rely on the judgment. The point was of course conceded by the Attorney General in the X case that suicidal ideation could validly satisfy the test in the X case or, in other words, suicidal ideation could constitute a risk of loss of life. That is all it is. It is not that it did in that case, but that it could. How could it not be conceded by the Attorney General and can anyone explain to me how it could not be the case that a risk of suicide is a risk of loss of life? Is a risk of suicide a risk of loss of life? It manifestly is, so of course it was conceded by the Attorney General. Why would arguments need to be made to any court-----

To examine the risk of suicide.

-----that the risk of loss of life includes a risk of suicide? That is just a plain, incontrovertible, undeniable fact that could not possibly not be conceded by the Attorney General, unless anyone here is seriously arguing that a person at risk of death from suicide is not at risk of death. This argument sometimes gets extended to a really absurd level because, quite clearly, a risk of death from suicide is a risk of death. That is what was conceded. It is not an absurd premise at all; it is an absolutely undeniable one. That is why it does not seem to me to be remotely stateable that the X case is to be set aside in some way because of anything that was found in the Attorney General v. Ryan's Car Hire Limited.

I am struck by the number of times honesty has been raised in the debate. Deputies Shortall and Keaveney did it. The motivation of people is questioned, as is whether people have a conscience. Conscience seems, in some people's minds, to exist only on one side of the argument. All Members, on both sides of the argument, agree that people approach this debate honestly. We owe it to one another not to attribute dishonesty to one another in the manner in which we approach this difficult issue. Deputy Shortall said it would have been more honest for the Government to legislate for termination in the case of fatal foetal abnormality - and she mentioned rape and incest - than to do what we are doing. It is not possible under the Constitution to do so, for the reasons clearly set out by the Minister for Justice and Equality, Deputy Shatter, which we have heard over and over. Deputy Clare Daly's Bill did not do so.

Returning to the honesty issue, we are attacked for not doing something that everyone knows we cannot do. I welcomed Deputy Clare Daly's intervention in this matter. Colleagues on this side looked at me askance when I said that Deputy Daly's introduction of a Bill was a very honest intervention at the time. We did not accept the Bill, as we did not think it was adequate; we thought there were problems with it and we said we would do it ourselves, which is what we have done. People come back a few months later and throw at us the question of why we have not done things that she did not do in her Bill. She did not include these additional circumstances in her Bill because she could not do so for the same reason we cannot. She looked at the Constitution when drafting her Bill, which is what we did. It is no different on either side.

I hesitate to make this point, but I reject out of hand the notion that we are dishonest or disingenuous. The Minister for Justice and Equality said towards the end of his contribution that we were carefully and expertly advised by the Attorney General and that we understand the implications of the Constitution and the importance of upholding the terms of the Constitution in anything we do. We have different views and I share the view that there are circumstances in which the Irish people may well consider revisiting Article 40.3.3° of the Constitution in a referendum. Members should not try to persuade the people that it can be done simply by putting it down on a piece of paper and telling the Government it is dishonest by not doing so. That is disingenuous. Let us all be honest with one another and not ascribe dishonesty to others when the position is quite clear.

It was suggested that on Committee Stage we did not deal with the implications for doctors for doctors' legal liability. We dealt with it carefully on Committee Stage and we said that, as best we could describe the law, if doctors and medical practitioners act within the law and the scope of the Bill, no liability is attached to them. There is a general legal context in respect of the requirements on doctors and the standards of their profession. These are well-known principles of medical negligence that doctors understand and must uphold.

With regard to gestational limits, the test is whether there is a real and substantial risk to the life of the mother that can only be averted by a termination. If people who want to set a gestational limit pick a certain limit, such as 22 weeks, the clear implication is that the test of a real and substantial risk to the life of the mother that can only be averted by termination disappears beyond that limit. The test must give way. That is not the law; it is not what the Supreme Court said or what the Constitution means. The test is whether there can be a real and substantial risk that can only be averted by termination, and the test applies at all stages. There must be a question of honesty and people must understand the position. Some people do understand that but may want to argue otherwise.

It seems like hours since I signalled my intention to speak in this debate, but I am glad to have the opportunity to make a few comments. Many of the amendments addressed in this group revolve around section 9 of the legislation. I refer to my comments on Second Stage, which I premised on a belief that everyone shares, which is that doctors ultimately need the freedom to act in emergency situations. Everyone on each side of the debate has emphasised that point over a number of months. I certainly believe it. The Bill is a realistic solution considering the three parameters facing the Government, which I outlined in my speech on Second Stage. The three parameters are Article 40.3.3° of the Constitution, the Supreme Court decision of 1992 and the A, B and C v. Ireland judgment.

During my speech on Second Stage, I raised three principal issues I wanted the Minister to address. That is why I supported the Bill on Second Stage. I asked him to examine section 15 and the review mechanism. I did not believe that what was proposed was strong enough, and changes have been made in that area. On several occasions, particularly at party meetings, I asked him about the need to amend sections 7, 8 and 9 to reflect the best available clinical practice. Those amendments are included in what we are discussing tonight. The third principal point I raised with him was the issue of gestational limits. I have listened to the discussion on both sides of the House about the matter. Over the course of the past few months, I have met a number of women who came forward, having been in emergency situations and having received the treatment they needed. Putting a limit on what is a constitutional right as outlined by the Minister of State, Deputy Alex White, and the advice provided by the Attorney General is probably repugnant to the Constitution. I understand that explanation. While I have misgivings, I will support the legislation.

My remaining misgiving has not been referred to in most of the debate this evening. It was raised on Second Stage and concerns vindicating the legal right under Article 40.3.3° to legal representation for the unborn. I have not heard many speakers, if any, refer to it. The Minister might outline his thinking on that issue before the discussion finishes tonight.

Like many colleagues, I consulted widely among my circle of friends and in my constituency on the Bill. I have been particularly struck by the number of people who have come forward with their own stories and views. They came forward unsolicited and were not part of any group. The overwhelming consensus has been that I should support the Bill. It is a classic situation for a politician to face. He or she might have personal misgivings but be asked by the vast majority of the people, who he or she knows and who are identifiable, to follow a certain course of action. I know that my decision will not please everybody. A very dear friend with whom I discussed the matter last night was particularly upset when I indicated how my views on the matter were moving. I am particularly disappointed with the way our political system works and that many Members, for whom I have the greatest regard and who find themselves on a different side to me, will face expulsion from political parties for expressing their views. The whip system that is employed in this country, which is more severe than anywhere else, has not served the country well. One need not look too far back into our past to see that. People should not be cast aside for giving a true reflection of what they believe.

I have thought very deeply about section 9 over the last number of months and made up my mind. The decision I am making tonight reflects a position I adopted two months ago. I have changed my mind on a number of occasions since. Psychiatrists are more appropriate persons than lawyers, judges or politicians to make judgments on matters of mental health. I am conscious of people thinking in legal terms of the proportionality test and of those who consider that where an abortion is carried out for someone expressing serious suicidal thoughts, it is the ultimate end of a life before it has really begun. I have been trying to weigh over the last few months that test and the fact that mental health issues and suicide are a real cause of death and threat to people's lives in this country. No more than anyone else, I have been affected. We in the House have been affected. It is real. The difficulty is that it is almost intangible and very difficult to measure. I attended the six days of committee hearings at which psychiatrists expressed views to that effect. Can we decide in legislation that suicide does not represent a real threat? We cannot.

The debate in the House this evening has been measured and people have expressed their views freely and openly. Despite what might be written and said elsewhere, I, for one, have not felt myself under any undue influence on the matter. I have sought clarification at every point and managed to get it on most issues. I resent deeply some of the views expressed from members of my own Government over the past few months, though not in the debate tonight. They have twisted the provisions of the Fine Gael platform at the last election and the terms of the programme for Government. The programme for Government committed the Government to establish an expert group. I have heard several Cabinet Ministers say that it committed to legislation. The expert group outlined a number of options, one of which was legislation followed by regulation, which is the option the Government chose. The idea that it was the only option is simply not true. It has been said on several occasions. People should not twist what is written to suit their own agenda.

I have thought for a long time about what I would ultimately do and did not announce my decision until now as I wanted to see if the Minister would adopt some of the amendments I suggested. He has. I have a significant misgiving about the issue of legal representation and vindicating the rights of the unborn. Many lawyers with whom I have consulted and who support much more liberal legislation in this area believe that when that is challenged, it may be found to be unconstitutional. It is my most significant outstanding issue with the legislation. The legislation is a realistic solution to the position the Government was in once the decision to introduce legislation was made and it meets the need to balance the Constitution with the Supreme Court and European Court of Human Rights judgments. For that reason, I support it.

The ordering of the debate by the Government is bizarre. It brings the Oireachtas into disrepute and is an insult to Members and the public generally. Any reasonable person would have adjourned the debate to tomorrow. I have supported the legislation on Second and Committee Stages and will support it later this morning when a division is called. However, it is limited and restrictive legislation which should and could, within the terms of the Constitution, provide for terminations in the case of inevitable miscarriage and fatal foetal abnormalities. I will address those issues later in the debate when I move amendments on those issues.

Opponents of section 9 wish to give the impression that it involves the introduction of abortion on demand and that women who are suicidal will be able to get a certificate and termination with ease. Nothing could be further from the truth. Those suggestions are at best disingenuous and at worst dishonest. It is important to remind ourselves that the conditions attached to the section and legislation generally are onerous and restrictive. They require a real and substantial risk to the life of the mother as distinct from her health and that such substantial risk can only be averted by a termination. It also provides that three medical practitioners must certify jointly under the section. These are onerous and restrictive conditions. It is a near certainty that those who wish to access a termination on those grounds will continue to do so in other jurisdictions, mainly Britain, rather than subject themselves to the onerous and restrictive conditions provided for in the Bill.

Opponents of this section and the Bill in general constantly argue that the majority of the people are opposed to the condition now known as the suicide condition. Nothing could be further from the truth. This argument is, at best, disingenuous and, at worst, dishonest. We know that there is incontrovertible evidence that the majority of the people support the X case judgment in the case of suicide. The evidence is there for all to see. It is the result of two referendums in 1992 and 2002 which clearly supported the inclusion of suicide under this general heading. I support the Bill, limited though it is. I have supported it in the past and will support it tonight, or rather this morning.

I attended the hearings held in the Seanad Chamber and all of the debates on this legislation. One would be forgiven for believing this was a debate about some kind of legal concept that did not affect any individual but rather concerned the Supreme Court, the High Court, Europe and every lawyer and barrister in the country, that it had nothing to do with women, human life and how we live our lives. We have had sermons from the mount on several occasions and I am sure we will have another one because I saw the Deputy indicating again. Women have been lectured to. I do not take the view that men do not have a role to play in this issue. There are as many men as women who are feminists; there are men who are compassionate and realise women may find themselves in circumstances, not only as a result of rape or incest, where they simply cannot continue with a pregnancy. Compassion for their circumstances is fundamental.

The argument seems to have settled on the issue of suicide. The people who now think they know more about me than I know about myself have decided that women who are pregnant cannot be suicidal. That is a fallacy. They are of the view that of the 500 who die by suicide in this country every year - an unacceptable figure which is of concern to everyone in the House - none of them can be a pregnant woman because, if so, she is telling lies and faking it. That is deeply insulting. If the same people are saying that when a woman presents as being suicidal, psychiatrists cannot deal with the issue, on what are we spending our money? They deal with people who are suicidal every day of the week across a range of individuals and age groups, not just young men. They deal with middle-aged men, older men, young women and older women. Psychiatrists can say whether a person is in danger of dying by suicide. They do so every day of the week because that is their job and profession. However, it seems they cannot do so if the patient is a woman and she is pregnant. Frankly, I find the argument that they cannot do so amazing. In the case of those who trot out this line, it is not about pregnancy, it is about control. They look into their hearts and tell me what is best for me. I thought that kind of Ireland was gone, but it seems it is not.

It is on the way out.

I hope it is on the way out. If one is a woman and pregnant, one cannot be suicidal. If a woman presents as being suicidal in these circumstances, there is not a psychiatrist in the country who can tell her that she has a possibility of dying by suicide because of that pregnancy. It is our job, as legislators, to ensure that in the rare case where someone is pregnant and feels suicidal as a result of that pregnancy - whatever its cause - we legislate to ensure that person is protected. If we do not do this, we are derelict in our duty. One can stand up and talk about angels dancing on the head of a pin all one likes, but the central issue concerns women, pregnancy and their lives and their families.

I have heard several speakers tonight say this has nothing to do with Savita. I very seldom mention that woman's name because what happened to her was a tragedy, not just for her but also for her entire family. That tragedy made this country far more sensitive to pregnancy than it had ever been. However, perhaps we were that sensitive when Miss X came before the courts - I think we were - and when Ann Lovett died. There have been periods when we have been that sensitive, but we have not acted. It is a certainty that if this legislation were in place when Savita was in hospital, the process that kicks in as soon as a woman says, "I want a termination," would have kicked in. I am not saying the circumstances or the end result would have been any different, but, at least, there would have been a process.

A legal process.

When Deputies start to talk here about legal definitions and about whether the evidence was available at the time, they should remember that they are talking about a woman who is pregnant and that pregnancy could be a threat to her life. I have said to Deputy Clare Daly on another occasion that we should start to look seriously at the issue of fatal foetal abnormality and the threat to the health of the mother because some pregnancies can have an enduring effect on the health of a mother, as well as being a danger to her life. I advise Deputies that they should forgo talk of legal concepts in the abstract. They should think very carefully about whom they are talking because it is not some distant ethereal being; they are talking about mothers, sisters, aunts and daughters. Women, in the main, do not want to end their pregnancies, whether that happens by way of a miscarriage or it having to happen through a medical procedure.

This is not something stepped into lightly, and I have never heard any of them say it is something they chose willingly. We must be very careful about that, and it is deeply insulting to women to think we have people telling us that somehow or other, we are not to be trusted. If that were true, none of us would be sitting here tonight. Women are to be trusted and have always had the best interest of their children at heart down through generations. The notion that control must continue because, somehow or other, we are not to be trusted, is ridiculous. We have heard about legal concepts and angels on the head of the pin, with people wondering if a judge said this or that, but in between all of this, the woman and her baby are getting lost. This is about the protection of life in pregnancy.

I will contribute briefly to the discussion on the amendments relating to the so-called suicide clauses, or section 9 of the Bill. After the contributions of the Ministers of State, Deputies White and Kathleen Lynch, there is little that I need to say. Anybody listening to either of those contributions should be in favour of maintaining section 9 as proposed in the Bill. It is not often in this Dáil that I agree fully with either of those Ministers of State.

A factor may have been lost in much of the debate about the so-called suicide clauses. The Supreme Court is part of a body which makes law in this country by adjudicating on legislation and cases that come before it. It is already part of the law that suicide is considered and a termination can be granted in the case of suicidal ideation. We need to regulate such a process. Deputy Mathews spoke earlier about emotional framing being used in these arguments to pull at people's heart strings and force them into decisions. I have seen nothing but emotional framing from the pro-life side in this argument.

I did not say it. The author said it.

People have told me that 95% of abortions in England take place on the basis of suicide, which is clearly wrong. The legislation in England refers to a risk to the physical or mental health of a pregnant woman, and there is no mention of suicide. Irish people are being told such things by the pro-life side every day of the week, which is an example of emotional framing in this argument. We have also heard that this legislation will open the floodgates to abortion on demand, with every woman at risk of abortion across the country because of abortion factories opening. That is the type of emotional framing that the pro-life side has put into the campaign and we must stand up against it in resistance. We must legislate for what is already the law of the land.

The Irish people have rejected the change of the suicide clause on two occasions, with the last in 2002. The Irish people are way ahead of the pro-life campaign in the argument, and they are way ahead of the Members in the House who argue against this legislation. We must support section 9 of the Bill and I wish we could move to the vote and get it out of the way, as many other important arguments must be debated tonight as well.

The nub of this legislation rests in sections 7 to 9, inclusive, which detail the physical threat to health, emergency situations and suicidal intent. The debate, particularly in recent weeks, has focused on section 9, which deals with suicidal intent. The suggestion from some is that hordes of suicidal pregnant women will suddenly come forward and these will run rings around professional psychiatrists. There is also a suggestion that these women may only "think" they are suicidal and that they should be locked up for their own protection. The reality is that women in crisis pregnancies, whether suicidal or not, will continue to do what they have always done when this legislation is passed, as I hope it will be. They will go to England. To stay in Ireland and subject themselves to the process we are putting in place means they would be suicidal when finished with it if they are not when they begin.

What application will section 9 have in that regard? The evidence suggests it will apply to one in 500,000 cases, meaning the issue is very rare but it exists. How many of those cases are likely to happen after 20 weeks gestation? I suggest there would be none. The main concern, which I understand, has been that there is no gestational limit. Everybody understands it and nobody would be happy with terminations of almost viable foetuses. If suicidal intent occurs with a pregnant woman, it may come about due to her pregnancy and particularly in the early weeks after the discovery. A woman would not suddenly become suicidal five months after learning she is pregnant; that is a very unlikely scenario. If the overall instance of such cases is one in 500,000, the likelihood of an instance occurring after 20 weeks gestation is virtually zero, and it would come about only when there is no other treatment available.

The only application of section 9 will be for women or girls already in care and where assessments for determination are sought by the HSE. The irony is that the HSE is already obtaining terminations in England with no restrictions such as the assessment of three doctors, certifications or reports to the Minister or these Houses. The only effect of section 9 will be to circumscribe the circumstances in which terminations can be obtained. Nevertheless, we seem to be pointlessly convulsing about the matter, as it will have little application in reality. Section 9 exists because it forms part of the Supreme Court judgment, and omitting it would be unconstitutional. We cannot, as some would have us think, pick and choose decisions of the Supreme Court and neither can we be so arrogant as to argue that it is wrong. By definition, the Supreme Court cannot be wrong and its decisions are the law.

Terminations required in emergency cases are also quite rare but we know, tragically, that they exist. Section 7 deals with the physical threat as grounds for a termination and it will have a greater application; these cases will not be as rare as the other two examples. We do not have precise figures for affected women but the anecdotal evidence is that the section may apply to a considerable number of sick women, where as a pregnancy progresses the threat to life would increase. Such women are travelling to Leeds, Liverpool and London and they may have cancer, high blood pressure, kidney diseases or other chronic conditions. After discussions with doctors, these women have no alternative in trying to save their lives but to travel to England.

This is really very minimal legislation and my only hope for it is that these sick women will no longer have to travel. I know that is the intent in the legislation and the Minister has reiterated the point. I am concerned that the legislation does not articulate it nonetheless, and specifically that doctors are covered by this legislation even where the threat to life is not imminent or inevitable. I hope the legislation works and I know its purpose is to provide clarity, so we should take the opportunity to give such clarity by writing it into the legislation. Doctors must be absolutely clear they are covered.

It became quite clear that some doctors thought it only applied in emergencies or where the threat was imminent. It is important for GPs to have clarity around this situation because, in most cases, when women first become pregnant, they see their GP first and they do not see an obstetrician until much later. If a decision such as that has to be made, it is better made earlier than later. The Minister is not minded to accept amendments to insert this in the legislation but I ask him to consider this for guidelines later. What is often lost in this debate is that these sick women desperately want to have babies but they cannot if their lives are to be saved. It is only this cohort of women to whom this legislation has any relevance or application.

Many people think the legislation does not go far enough while others think it goes too far. The truth is it is neither; it merely reiterates existing law and clarifies it. I commend the Bill to the House.

This is a substantive part of the Bill, about which many people have concerns. I acknowledge it is particularly difficult for some Members.

The Minister of State, Deputy Creighton, talked about the lack of a treatment plan or a pathway of care, yet one psychiatrist I can quote described the Bill as creating this pathway of care. She mentioned the issue of retired Supreme Court judge, Mr. Justice Hugh O'Flaherty, but both the Minister for Justice and Equality and the Minister of State at the Department of Health, Deputy White, dealt with that. As a non-legal person, it strikes me that following his logic, if one were found to be right in a case and awarded, for example, a sum of money but subsequently won the Euromillions and did not bother collecting it that somehow one was not vindicated. That is a nonsense to be quite frank. The Cosma v. Minister for Justice, Equality and Law Reform case has been dealt comprehensively by both Ministers.

As legislators, our duty is to enact laws in accordance with the Constitution. I utterly reject any suggestion that we cower behind the Supreme Court.

The Supreme Court interprets the Constitution; we make laws. When the court makes a clear and definitive statement as to the basic law, as legislators, we must listen. The test in Attorney General v. X is not obiter dictum, as others have said. It is one of the clearest statements of the basic law the court has given. It has been understood as such since the judgment was delivered in 1992 and it has been the basis for two referenda. It has been accepted by the superior courts in numerous cases since 1992. There is a desperate attempt to suggest that the Supreme Court's interpretation of Article 40.3.3o can be qualified or discounted or somehow ignored. That simply is not the case.

The most cursory perusal of the authorities recognises that the X case is, and has been, since 1992 the basic law of the land. We have, as Mr. Justice McCarthy said and as the Minister of State, Deputy Creighton, acknowledged, been in default as legislators in providing a framework for the rights which the Constitution grants and which the Supreme Court declared.

When the Statute Book is silent on matters of life and death, great mischief can occur. We remedy that through this Bill. Twice the Supreme Court confirmed that the X case decision is the state of our law in the baby O case in 2002 and in Roche v. Roche in 2010. If the court wanted to alter or vary the decision in any way, it could have done so but it did not. The Minister for Justice and Equality referred to how the X case was referred to in Cosma v. Minister for Justice, Equality and Law Reform. The decision of the Supreme Court in the X case has never been added to, varied or contradicted by any subsequent decision of the court. It is the law and we are bound by it.

Other issues were raised. I was implored to listen to the psychiatrists. I will quote Dr. Anthony McCarthy, president of the College of Psychiatrists of Ireland:

I will specifically discuss a phrase that is being quoted frequently at the moment that "abortion is never a treatment for suicide". This is true, and abortion is never a treatment for suicide, but neither is counselling, psychotherapy, antidepressants or anything else. There is no treatment for suicide. What society needs to address in general, and what we as psychiatrists have to do specifically, is try to prevent suicide, and this requires looking at the causes of suicide and what can be done to address those causes. The question is not whether abortion treats suicide but is there ever a case where a woman will kill herself because of an unwanted pregnancy, and if so, what can we do to save her life, and would that ever be a termination of pregnancy? This Bill is about legislating for that very small but real possibility.

He further stated:

Suicide in pregnancy is real; it is a real risk and it does happen... Much has been made and will be made about the so-called lack of evidence with regard to abortion and whether it will ever prevent a suicide. I believe there will never be statistical evidence to prove this point one way or other because trying to prove anything statistically for such a rare event is extremely difficult, if not impossible. Only a study involving thousands of women who were expressing suicidal ideation in pregnancy and wanted an abortion, and where half of them had that abortion and the other half did not... could answer this question about statistical evidence. This study will almost certainly never be done, I hope.

I am listening to the psychiatrists. The same psychiatrist on the radio two mornings ago stated that dialectical behaviour therapy is for emotionally disturbed women with a personality disorder. To suggest that should be the treatment for every woman who finds herself in this situation is not logical.

A great deal of work has been done by the crisis pregnancy agency and the number of women travelling from this country to the UK has fallen by one third from 6,000 to 4,000 annually. Much more work needs to be done and I acknowledge that, as does the Government.

I would like to address the issues raised by Deputy Terence Flanagan who contended that the Bill was a change. It is not a change in the law; it is a clarification of existing law. He stated that psychiatrists are not judges and I agree but every day, they must make clinical judgments as part of their work. As somebody else said, they are better positioned to make those clinical judgments than anybody else, including the Judiciary. It was contended that I said on television this law would lead to increased numbers of babies being born with a disability. I did not say that but I acknowledged that it could happen.

Deputy Kirk said the arguments made, particularly by the Minister of State, Deputy Creighton, were compelling but we have seen clearly that not alone are they not compelling, they are deeply flawed.

The Minister of State, Deputy Alex White, the Minister for Justice and Equality, Deputy Alan Shatter, I and others have detailed the reason. He also suggested that taking section 9 from the Bill would be the easy thing to do. However, the right thing is often not the easy thing. As others have pointed out in respect of gestational age, there can be no limit to a right. Are we to say to a pregnant woman in this situation that we can save her life up to 20 weeks of pregnancy but cannot do so after that date, and she has no right?

I refer to issues raised by Deputy Timmins. Would he prefer to leave the right to termination on grounds of suicide unregulated? It is legal now, as the X case has shown. The Deputy might say no such terminations have taken place. I already pointed out I cannot confirm that but I know that as the law stands without this Bill, a doctor anywhere who forms the opinion that the risk of suicide is real and substantial and the only way to avert it is to terminate the pregnancy, is entitled under the law to perform that termination in any institution, with no certification and without referring to any other doctor. It is not unreasonable to go further and state that had this law been put in place in 1992 some lives might have been saved.

A number of speakers have asked how we came to this point, as a Government, and noted it is said that one party in particular wrote a letter, giving certain commitments. In the letter it was stated we would not legislate for abortion. We are not doing so - it is already legal. In our manifesto we stated we would have an all-party committee on the A, B and C case. The programme for Government went further, stating we would form an expert group. That group's report made it very clear to the Government, giving three options, that the safest and best way forward was by legislation and regulation. We know there is no available evidence as a treatment for suicidal intent; I have covered that.

I admire the courage of all, professionals and non-professionals, who have joined the debate. In response to Deputy Daly, I acknowledge that risk of suicide is real. We must trust the mothers of the next generation and must trust our doctors. That should be our starting point. The Deputy spoke of the GP. The expert group had input from GPs and although it did not believe GPs should be involved in certification it believed they should be consulted. That is covered in the Bill.

Deputy Wallace asked why two psychiatrists and one obstetrician would be required. That was one of the options given by the expert group and has nothing to do with any contention on the Deputy's part that certain people on this side of the House believe that women would lie or be manipulative. It has to do with the more subjective nature of assessment of the threat of suicide and the risk it represents. We do not have biochemical markers, imaging X-rays, etc. as we have in physical cases and have to depend on clinical opinion and assessment. We must acknowledge that the outcome of that assessment could be the end of the life of the unborn.

Deputy Naughten contended we are doing this merely because of the Supreme Court. We have covered the importance of the Supreme Court and do not need to return to that. It is not true to say that in the case of a review a woman cannot have somebody with her.

I thank Deputy Kelleher for his contribution. Along with others, I agree that suicide risk is rare but is real, as the Deputy noted. We cannot be prescriptive to doctors doing their work. The Deputy's amendment is already contained in the Bill in that it is stated repeatedly that termination must be deemed the only treatment that can avert this risk. This means that all other treatments must have been explored and considered.

Deputy Conway made her points very clearly and I share her concerns around mental health and some of the comments that have been made.

Deputy Boyd Barrett claimed the Bill does not go far enough. I believe we understand that we are bound by the Constitution, the Supreme Court and the A,B,C judgment of the European Court of Human Rights. As others observed, we cannot selectively choose from any of those. We cannot select bits of the Constitution we like and ignore the bits we do not like. We cannot select decisions of the Supreme Court we like and ignore others. Nor, as some have suggested, can we, having signed up to the ECHR take an à la carte view of that institution.

I accept that some people have a serious problem with this but I reject the contention made by Deputy Walsh that this Bill will in any way normalise suicide. I have addressed the issues the Deputy raised about gestational time.

Deputy McNamara made a point on legal interpretation which is absolutely correct. Deputy Ó Caoláin was supportive, for which I thank him. He stated that I had told the committee I would amend the Bill in regard to treatments available. What I stated, as seen in the blacks in front of me, was that I would return to this and mention it in my speech on Report Stage, which I am happy to do. However, given the lateness of the hour I do not know whether Deputies will want me to go through all of that. If it is their wish, I will do so.

I would be more concerned about what the Minister will do after the Bill is passed. It is in the context of aftercare.

Deputy Durkan was supportive. Deputy Shortall made points that were well dealt with by the Minister for Justice and Equality, Deputy Shatter and the Minister of State, Deputy White.

Deputy Bannon asked about markers. There are no biochemical markers in respect of the mental health issue of suicide and risk thereof. There are no control trials per se.

Does the name reflect the reality of the Bill? I believe it does and have already discussed this. This is the Protection of Life during Pregnancy Bill - the life of the mother and the life of the unborn.

Deputy Phelan raised gestational limits, which we have covered.

It must be stated, as was done by the Minister of State, Deputy White, that the Attorney General is the legal officer of the Government. She is a person for whom I have the height of respect, who does unstinting, Trojan work on behalf of the Government and gives an astonishing service. She is always available whenever a legal opinion is required and has done extraordinary work in answering questions from many Deputies.

Deputy Healy has some reservations about the decision to continue the session tonight. I put it to him that the House has voted so to continue.

For a doctor it is not unusual to be up late at night and not unusual to be considering serious matters. I do not think the people in this House are any less able than we are in that. I cannot accept these amendments. Those who proposed amendments will have a chance to come back to them for two minutes each, according to the Chair's rules.

I would prefer if we did not lose the focus on this, so I will paraphrase my good colleague the Minister of State, Deputy Kathleen Lynch. This Bill aims to provide clarity for the women of this country about the services that are available to them and how to access those services, because that was at the core of the A, B and C judgment - there was no clear access and no clarity about how women were to exercise their right. It clarifies for the medical and nursing professions what they are legally obliged to provide and what is legal. Without a shadow of a doubt this does not change the law, but I do hope it changes practice in so far as it improves it by giving all concerned much more certainty about the needs of women and what is legal and should be provided.

It is time for the second contribution from Members who have already spoken. I remind them that they have only two minutes' speaking time. There are several speakers whose names I will call out. Those entitled to speak for up to two minutes are Deputies Healy-Rae, Mattie McGrath, Timmins, Mathews, Boyd Barrett, Halligan, Daly, Wallace and Tóibín. If a Deputy's name does not appear on this list but he or she has spoken in the first round of contributions and wishes to make a two-minute contribution he or she should please come forward to the Chair while the others are speaking. I will remind speakers when they have 30 seconds left in those two minutes and I ask that Deputies adhere to the two minutes.

Before we adjourned I was addressing amendment No. 58 and I was complimenting the Minister of State, Deputy Lynch, on the amendment she had proposed.

I wish to condemn in the strongest possible way the decision taken by the Chief Whip and the people who voted for this ridiculous decision to take the vote at 5 a.m. It is not that anybody on this side of the House is flinching at the idea of staying up. If it made sense for us to do this we would support it, but it is nonsense. It is a nonsensical decision because this matter is of grave concern to everybody on both sides of the House and it would have been right and proper to have continued the debate in a proper and orderly fashion tomorrow and on Friday if necessary. We are hearing that the Dáil will not sit tomorrow until 12.30 p.m. Does it make sense to be rushing this debate tonight to try to get through the amendments and have a forced vote at 5 a.m. and then delay proceedings tomorrow until 12.30 p.m.? It makes absolutely no sense. It is ridiculous.

I am sorry I have only a couple of minutes to continue speaking. I was given abortion statistics from around the world. One that jumped out at me was that there have been 330 million abortions in China in the past 40 years. I just think it is wrong. There are 13 abortions for every 10 live births in Russia. It is wrong. There are 125,000 abortions per day in the world. It is wrong.

I wish to place on the record of the House a matter of the utmost importance in respect of the constitutional validity of the proposed Protection of Life During Pregnancy Bill 2013. It has been brought to my attention that the Oireachtas has no right to vote on a Bill that contains provisions that have been put to the Irish people in referendums and which they in a sovereign exercise rejected. The Protection of Life During Pregnancy Bill 2013 contains two provisions that were put to the Irish people in a referendum in 2002 and that the people rejected.

The Deputy should stick to the proposed amendments.

These provisions must be removed from the Bill currently before the Oireachtas before it is subjected to a final vote. The decision also puts these provisions out of the reach of the Government. If the Government wants to include them, it must first get the Irish people to reverse its previous decision. The Irish electorate voted "No"-----

We are speaking on the legislation that is in front of us tonight.

-----in the 2002 referendum to repeal sections 58 and 59 of the Offences Against the Person Act 1861. The proposal to delete sections 58 and 59 of that Act, which this Bill seeks, would require a new referendum. Similarly, the Irish electorate voted "No" in the 2002 referendum, specifying that the life would be protected from implantation-----

I remind the Deputy for the third time that he must speak on the amendments.

-----yet this Bill presumes to legislate for protecting a stage of human life.

In light of these facts which I have placed on the record of the House I am calling for a suspension of the vote on the Bill until the matter is resolved in a manner that respects-----

The Deputy must speak on the amendments on which he has spoken already.

I am speaking on the legislation. I am asking for it to be delayed to respect the sovereign decision of the people.

The Deputy has no respect for the House.

The Taoiseach said this morning that he wanted to get rid of this tonight. Those are the words he used. We are getting lectures all night about unsuitable descriptions. He wanted to get rid of it. It is a farce that we are sitting here. The Minister for Health could not come to the hearings of the Oireachtas Joint Committee on Health and Children for more than 12 minutes but he says he can stay here all night and all day.

The Deputy is making a Second Stage speech.

He never replies to us. He spent 12 minutes at the committee hearing, which was an insult to all those who came forward.

I appreciate the difficulty the Minister has in trying to create legislation in this area to end up ultimately with a medical practice that can be followed. I agree with the Minister of State, Deputy Kathleen Lynch, that much of the talk here has been legalese, but one of the foundations of the Government's policy is legalese. I regret that the Minister for Justice and Equality, Deputy Shatter, is not here, but he is probably watching the monitor. He came in here to deconstruct an argument by the Minister of State with responsibility for European Affairs, Deputy Creighton, but I briefly remind him – and I could quote ad nauseam from material here – that in the past he has asked the Taoiseach if he would not agree that there have been a substantial number of constitutional cases in which the advices of the Office of the Attorney General have been proved wrong. I appreciate the work done by the Attorney General, but the Minister is aware that his own Department lost a naturalisation case in Sligo last year with respect to the Iranians. I could go on about upward-only rent reviews, etc. There was also the case of McCrystal v. the Minister for Children and Youth Affairs. That is not the point of this issue.

The Minister spoke about quoting psychiatrists. He can quote a few psychiatrists, but the majority of them disagree. I will not quote the words of Professor Kevin Malone, one of the most qualified people on the issue of suicide. His contributions are in the report of the committee hearings and people can check them there if they want.

I want to deal with one very important issue that the Minister for State, Deputy Kathleen Lynch, raised. I may be misquoting her, but I think she said there were claims that pregnant women could not be suicidal. I do not think anybody here made that claim. I may have misinterpreted her. Everyone acknowledges that that can be the case. Of course the Minister for Justice and Equality was right when he talked about the X case and the 14-year-old girl who was raped. That is absolutely horrific. It is one of the things that has caused a difficulty for me. I can only quote Jacqueline Montwill, who said when it was put to her that one violation on top of another does not solve the problem, horrific and all as it is. When one hears the emotive language one is of course shocked. Bernadette Goulding of Women Hurt said exactly the same thing. This Government would not allow a referendum.

The Deputy is out of time. I have to stop him there.

If this legislation is struck down, will the Government also be of the view that it will not hold a referendum on the issue?

The next speaker is Deputy Mathews. He has two minutes. I remind speakers that they must stick to the two minutes, in fairness to every other person who has an opportunity to speak for two minutes.

I remind the Ministers that the dilemma for the doctors, the psychiatrists and the obstetricians was the repugnant one posed by the fact that if a mother refuses treatments, the law says that a medical procedure is lawful. Jim Sheehan, who founded the Blackrock Clinic, the Hermitage and Galway Clinic, said, "Peter, you are to use the words 'kill the baby' ". We have heard an awful lot about women and I agree that women's health is paramount, but babies are people too.

As Deputy Michael Healy-Rae said, 3,500 babies are aborted every day in America. That is one 9/11 every day. These are babies who someone fathered and to whom someone would have been a mother, only that they lost their lives.

People on both sides have a conscience in this matter. Having informed their conscience of the facts, including the repugnant dilemma presented to us by psychiatrists, those Members who disagree with the Bill have to pay a cost. That is the difference between the two sides. We are chucked out of our parties. Two Members have said they have misgivings about the Bill, but they will still vote for it. Something is not right for them about the Bill. If something is not right, then something is wrong. Come on. Wake up everybody.

I commend the Minister for Justice and Equality, Deputy Alan Shatter, and the Minister of State, Deputy Alex White, on recalling the terrible tragic circumstances surrounding the X case and reminding us that suicide in pregnancy is a real threat which must be dealt with. That is what the X case judgment requires us to do, morally, politically and legally. Given the powerful accounts that they both gave, I do not understand how they can propose a Bill that effectively rows back on that right and gives us less than was agreed to by the judges in the X case judgment. One consultant psychologist made the assessment that X was suicidal and that she had the right to an abortion. The Government, however, is now proposing that similar cases will be examined by an obstetrician, two psychiatrists in consultation with a doctor and then a review panel. Potentially, a 14 year old girl, a victim of rape and feeling suicidal, could have to be put through a review by eight doctors and potentially denied her right to have an abortion in these appalling circumstances. The X case judgment does not require the Government to do this. That is the point we are making. The number should be reduced to two doctors instead of putting obstacles in the way.

The Minister asked for honesty. Will the Government be honest? As it stands, is Deputy Olivia Mitchell correct in saying most woman who will feel suicidal during pregnancy will not avail of the rights this Bill purports to give them? They will not put themselves through this. Then the Minister asks us what is the point of the Bill and what does it do for women.

I concur with the Minister of State, Deputy Kathleen Lynch, that some Members hold the suspicion that women may falsely claim to be suicidal. Psychiatrists and psychoanalysts have not been able to determine why someone is suicidal and why they take their own lives. The Bill is deeply restrictive and offensive to women in this sense, although I am obliged to vote for it. For instance, certification under the Mental Health Act requires two doctors, but this legislation will force pregnant women to see three. Deputy Richard Boyd Barrett is correct that all this will do is force women, faced with the prospect of proving their state of mental health, to leave the country. We will continue to export the problem out of Ireland.

There are women who are brutalised and raped, even in their own homes, or in cases of fatal foetal abnormalities who may feel suicidal. Those opposed to this section are telling them they are not suicidal. What a cheek for any Member to consider saying this to a woman. To put it simplistically, if a woman, as a result of rape, says she is suicidal, that should be it for all of us, as legislators, to believe and trust her. I have met women who have been brutalised and raped who have had to go through giving birth, as well as others whose child had a fatal foetal abnormality. Every one of them would say they would not have chosen to have had an abortion because of the love of their husband or partner. This was not their choice, but there was an inevitability about it in that their own lives would have been destroyed which might have led to suicide. That is why we have to think about what is in a woman’s head if she has been raped, brutalised or is carrying a foetus incompatible with life. Compassionately we must accept that there is a prospect in the woman’s mind that she may be suicidal. That is why we should support the Bill.

When we introduced our Bill, I was asked if the Minister would bring forward legislation and I said I believed he would. I am glad that is so. I recognise that this is important symbolically and that for the first time we are legislating for abortion in Ireland. After today, however, it is not the symbolism at which we must look but the details of the Bill and what is contained in it. In that sense, if the Minister for Justice and Equality, Deputy Alan Shatter, is disappointed that we are not supporting it, I can tell him we, too, are disappointed, but not for the reasons he stated. We are not voting against it because we want measures included in it which are unconstitutional. Our history in this case will prove that to be demonstrably false. We know that some of these issues are outside the scope of the Constitution. However, we have brought forward provisions based on the X case judgment and we would have been willing to support them.

What the Bill does is put obstacles in the way which are not there now, making it more difficult for women and which will result in us not protecting their lives. As the Minister stated, as it stands, legally, one medical practitioner can adjudicate on the issue of suicide. Under this legislation, we are proposing three practitioners. The Minister claims the psychiatrists will make the primary decision, but that is not clear. That is not what the legislation states. It actually states it needs to be a unanimous decision of all three practitioners, including an obstetrician, with an appeals mechanism. It does not provide clarity; critically, it provides a definition of the unborn which is unprecedented in Europe and makes it more difficult to deal with other issues such as fatal foetal abnormalities and so on. It is for these reasons that we reluctantly do not support the legislation.

This legislation is a significant step, but so much more has to be done. The Minister for Justice and Equality, Deputy Alan Shatter, has made the point that it is not possible to do more because of the Constitution, a claim we do not accept. The criminalisation of abortion has not been removed. The notion that a person can receive 14 years in prison for importing an abortion pill is draconian and not positive. Criminal laws have a negative impact on the right to health. This could have been dealt with without any reference to any problem in the Constitution. I am still not convinced that the Bill brings clarity to the issue. I am not sure all of the confusion around it has disappeared.

It appears there is still much confusion, but we have not opposed the Bill for the reasons the Minister stated and it was disingenuous of him to suggest it in that way.

I genuinely believe every single Deputy in this Chamber has come to his or her view on the basis of compassion and justice, no matter what their perspective is. I also believe we enter dangerous waters when we decouple health policy from peer reviewed medical evidence. In a matter of life and death, if it is a choice between the strident voices in this Chamber and the medical expertise of 130 psychologists, I know where my trust is going to lie. I would like to quote briefly from the peer reviewed meta-analysis from Dr. David Ferguson who is philosophically pro-choice:

There is no available evidence to suggest that abortion has therapeutic effects in reducing the mental health risks of unwanted or unintended pregnancy. There is suggestive evidence that abortion may be associated with small to moderate increases in risks of some mental health problems. [He includes suicidal behaviour in these health problems.] These conclusions have important if uncomfortable implications for clinical practice and the interpretation of the law in those jurisdictions which require abortion to be authorised on medical grounds. In these jurisdictions, the great majority of abortions are authorized on mental health grounds. The present re-analysis suggests that, currently, there is no evidence that would support this practice.

In his comments at the health committee hearings Professor Kevin Malone said:

By foregrounding a theoretical risk of suicide in women, and enshrining "suicidality" in Irish law, the proposed legislation runs the risk of further invisibilising, normalising, and at worst exacerbating the much more real and volatile threat of increased suicide risk in Irish men, and potentially accelerating suicide risk in young women also.

The Minister for Justice and Equality correctly says there was no evidence to challenge the psychologists' evidence in the X case, but we have dozens of hours of such evidence now. To come to the same decision as the Supreme Court, despite the fact that we have this evidence, would be grossly negligent.

I have three quick questions for the Minister. What would be the acceptable number of direct abortions under section 9? If one accepts the premise of the X case, on which the Bill is based, that a threat of suicide is no less a real and substantial threat to the mother's life, whether it arises in the first trimester or at eight months, and if the mother says she is suicidal because of the very existence of the baby, rather than simply because of the fact that the baby is inside her, the only way the cause of her suicidality can be removed is by killing the baby. As we know that both the X case and the Bill speak explicitly about ending the life of the unborn, I would like the Minister to comment further on that issue.

Dr. Sam Coulter Smith, the Master of the Rotunda Hospital, expressed serious concern about the idea that under section 9 an obstetrician might be required to induce delivery of a viable but extremely premature baby. He stated:

The fact that there is no gestational limit in respect of suicidality is a major ethical issue for obstetricians. Delivering a baby at 25 weeks gestation could lead to death due to extreme prematurity, or it could lead to a child with cerebral palsy or with other significant development issues for the future.

The Minister has acknowledged previously that the Bill will result in more babies suffering damage because of their premature delivery. Who will be liable for those babies who end up with a disability? Who will take care of them?

It is extraordinary that we are in this House tonight owing to inactivity and a failure to act. As a consequence, we have done the typical Irish thing - kick the can further down the road. The cowardice has stopped; perhaps this is not enough for some, but perhaps it has gone too far for others. It is time for some people to listen to those of us who vote with our conscience, who have informed our conscience, who have gone away quietly and spoken to obstetricians and psychiatrists and met medical ethics experts, who have done our own analysis and research and made our decision on the basis of what is right, not for any political gain, but only on the basis of what is right for women and unborn children. That is why I am supporting the Bill, because I am pro-life. I weighed 2 lbs when I born and I was 13 weeks premature. Nobody believed my mother when she said she was in trouble, except for a friend of hers who was a doctor, on St. Patrick's Day in 1967.

Medical technology has moved on. The country has moved on. We deserve to be honest with each other. I respect the views of many of my colleagues who disagree with the Government on this issue. They are good, decent people. However, the Bill is about bringing certainty. I would like to provide a quote. We can be selective in our quotations from the committee hearings, but I sat through six days of them and never gave an opinion or did anything other than chair the meetings. A number of quotes struck me. One is from Dr. Rhona O'Mahony who has said that if a woman commits suicide, she dies and her baby dies, too. That is an extraordinary statement because that puts the onus and responsibility on all of us to preserve life. Life is precious, no matter what our view is, and none of us has a right to question this.

I was struck by what the Minister of State, Deputy Kathleen Lynch, said and she is right: we must trust women. I was absolutely stunned last Sunday in Killarney by the number of women walking down Dalton's Avenue after the match who spoke to me about this issue. They were Cork and Kerry people telling me to do the right thing. For many of us in politics, it is about making decisions every single day of the week and we bring our conscience to our work every single day of the week. We get it wrong sometimes and sometimes we get it right. None of us is perfect and none of us has every single answer.

Dr. Anthony McCarthy told the health committee in January and May that "Suicide in pregnancy is real; it is a real risk and it does happen." He is a perinatal psychiatrist. We all agree that termination of a pregnancy is not the answer, but Dr. McCarthy said we must address the underlying cause of that issue in a woman who feels suicidal.

I was very struck by the presentation made by Dr. Sam Coulter Smith in May. He made a cogent and clear argument. Why are we here tonight legislating? We are legislating because Article 40.3.3o of Bunreacht na hÉireann has been held out as the bulwark by many of those who are against this legislation. The pro-life campaign website states the following.

The amendment protects the right to life of the unborn and ensures that women receive all necessary medical treatments when pregnant. It is regarded internationally as one of the key pro-life victories of the past 40 years.

I am no Einstein, but on reading Article 40.3.3o it gives equal and due rights to both the unborn child and the mother.

The Government can only act within the parameters of that article. We had two referendums which were rejected. How can the floodgates open? They can only be opened by a vote of the people. Any other change can only come as a consequence. Under the Constitution, a woman already has a right to a termination of pregnancy. The Bill makes it more restrictive and places a further burden on the woman. We would be wrong to deny a woman that right, irrespective of how rare it might be that she would claim it.

We must trust the women of Ireland. We must trust mothers. My mother who was a midwife was right in 1967. Some of her colleagues thought she was suffering from mental health issues, but she was not. Let us take a leap of faith on behalf of women. I accept that this is difficult legislation for many of my colleagues and understand their concerns because I, too, have struggled with it. I would not have supported it if I thought it was not the right thing to do. We have a duty, as legislators, to pass laws. If it is bad law, it will be deemed to be unconstitutional, but this legislation upholds a Supreme Court decision, no matter what people may think of it.

Many Government Members believe enacting this Bill allows them to conclude the issue because the legislation is restrictive and will not significantly change the practice of medicine and maternity care in this country. However, a group of people in the Government see this as a first step in making it progressively easier to obtain an abortion in this jurisdiction. As the Minister for Education and Skills, Deputy Ruairí Quinn, has confirmed, the Members who will be voting for the Bill on the benches opposite hold diametrically opposed views. The truth will only be known as the issue is worked out in the next five to ten years. It is likely that the wishes expressed by those who want this to be a first step on a long road will come to pass, much to the disappointment of those who believe they can finish the matter by legislating in good faith for a very restrictive provision.

The Minister quoted a psychiatrist. I will quote the following from a statement by 120 psychiatrists:

We believe that legislation that includes a proposal that an abortion should form part of the treatment for suicidal ideation has no basis in the medical evidence available. We as psychiatrists are being called upon to participate in a process that is not evidence-based and we do not believe that this should be asked of the profession.

It is not possible to respond to all of the points made, but the issues arising are important in the framing of this legislation. The idea that we cannot question or find shortcomings in a Supreme Court judgment is clearly wrong. I respect the legal brain of my good friend, the Minister for Justice and Equality, Deputy Alan Shatter. He has extensive experience of analysing judgments, but others also have experience in this area and their opinions vary. That is the nature of the law. It is a question of interpretations. Judges and courts interpret decisions of the Legislature. The late Supreme Court judge Brian Walsh who was one of Ireland's most eminent constitutional jurists stated shortly after the judgment in the X case that the eighth amendment:

confers no immunity for taking life and its stated objective is the preservation of and respect for life. It is perfectly consonant with the idea of safeguarding of the mother's life without intentional and direct intervention to terminate the life of the foetus. The claim that it admits of direct termination has never been fully argued. In the X case it was conceded. There was no legitimus contradictor to argue against such a construction and therefore the court's decision can only bind the particular case as it was based on a conceded and unargued construction. It is well established that neither a constitutional provision nor even a statutory provision can be construed on the basis of a concession if it were to be binding in rem.

I would have liked to have had the opportunity to speak to the substance of some of the amendments. I have tried to propose a clinical care path as an alternative. Nobody in this Chamber denies that a pregnant woman can be suicidal. I have deduced from some Members' contributions that what others and I have said has been misinterpreted. I tabled my amendments to reflect the medical reality, to which psychiatrists have repeatedly attested, that abortion is not a treatment for suicidal ideation. The Minister can scoff at certain treatments such as dialectical behaviour therapy, but these are recognised forms of therapy. If he has other suggestions, I urge him to propose an alternative amendment to set out a legitimate clinical care path that could provide meaningful and evidence based care for women who are suicidal in order to protect them and their babies.

A range of views have been expressed and I have responded to all of them. I have made it clear that we cannot be prescriptive in medicine and that a psychiatrist has described the Bill as a pathway to care. It would not be useful to repeat our discussion. This is the Protection of Life During Pregnancy Bill. The phrase "protection of life" refers to the mother and the unborn.

I respect all of the views expressed here this evening and during the course of this Bill. Equally, I accept they are held in good conscience and good faith. However, I also respect the women of this country, the mothers of the next generation and the professionals who look after them. As I said earlier, that should be our starting point here. I believe this Bill brings the clarity required to the women of this country so that they can know what services they are entitled to and, most importantly, how to access them. It also brings the clarity and certainty the medical and nursing professions need in order to deliver the services they are obliged to deliver and to know what is legal to deliver.

I cannot accept the amendments proposed and will oppose them. I ask the House to do so.

I will make a few brief points. The 1992 and 2002 referenda were defeated by both the pro-choice and pro-life campaigns and it is a brave person who will interpret the message of Ivana Bacik and Dana when they speak with one voice on an abortion campaign.

This legislation allows for the State to disable a child without any basis in medical evidence. It is difficult to say this, but a possible outcome is that a child could be damaged and forced to live with a severe disability for the rest of his or her life. This shocking vista would be a shocking legacy of this Dáil. We are told this is an extreme case that is unlikely ever to happen. We were told a number of years ago that we would have the cheapest bailout in history and that it would not cost the taxpayer tens of billions of euro. However, what we have learned is that if it can happen, it will happen and that human behaviour fills the spaces created by legislation.

It has been mentioned that thousands of women travel abroad for abortions every year. I see this as a double tragedy. It is a disaster for the women in crisis, but it is also a disaster for the lives lost. Ireland has an abortion rate of one in 20. In Britain, the abortion rate is one out of every five pregnancies. Clearly, our culture and legislation have created materially different outcomes for both women and children. Tonight, we are faced with the choice of whether to vote "Yes" or "No" on this issue. This is not the only binary issue with which we must deal. We either believe in medical evidence based treatment for women or we do not. We either believe a person is a human being or not and that child lives or dies. These are the stark and grave choices we are faced with tonight. The only yardstick we should use is what is the best available evidence based clinical practice in this regard.

Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 135; Níl, 24.

  • Adams, Gerry.
  • Bannon, James.
  • Barry, Tom.
  • Boyd Barrett, Richard.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burton, Joan.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Creighton, Lucinda.
  • Crowe, Seán.
  • Daly, Clare.
  • Daly, Jim.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Pearse.
  • Doherty, Regina.
  • Donnelly, Stephen S.
  • Donohoe, Paschal.
  • Dooley, Timmy.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • Ellis, Dessie.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Ferris, Martin.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Flanagan, Luke 'Ming'.
  • Griffin, Brendan.
  • Halligan, John.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Brian.
  • Hayes, Tom.
  • Healy, Seamus.
  • Heydon, Martin.
  • Higgins, Joe.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kelly, Alan.
  • Kenny, Enda.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • Lyons, John.
  • Mac Lochlainn, Pádraig.
  • McCarthy, Michael.
  • McDonald, Mary Lou.
  • McEntee, Helen.
  • McGinley, Dinny.
  • McGrath, Finian.
  • McHugh, Joe.
  • McLellan, Sandra.
  • McLoughlin, Tony.
  • McNamara, Michael.
  • Maloney, Eamonn.
  • Martin, Micheál.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Mulherin, Michelle.
  • Murphy, Catherine.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Nolan, Derek.
  • Noonan, Michael.
  • Nulty, Patrick.
  • Ó Caoláin, Caoimhghín.
  • Ó Ríordáin, Aodhán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Pringle, Thomas.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ross, Shane.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Sherlock, Sean.
  • Shortall, Róisín.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanley, Brian.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Varadkar, Leo.
  • Wall, Jack.
  • Wallace, Mick.
  • White, Alex.

Níl

  • Browne, John.
  • Calleary, Dara.
  • Flanagan, Terence.
  • Healy-Rae, Michael.
  • Keaveney, Colm.
  • Kirk, Seamus.
  • Kitt, Michael P.
  • Lowry, Michael.
  • McConalogue, Charlie.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McGuinness, John.
  • Mathews, Peter.
  • Moynihan, Michael.
  • Naughten, Denis.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O'Dea, Willie.
  • O'Sullivan, Maureen.
  • Smith, Brendan.
  • Timmins, Billy.
  • Tóibín, Peadar.
  • Troy, Robert.
  • Walsh, Brian.
Tellers: Tá, Deputies Emmet Stagg and Paul Kehoe; Níl, Deputies Mattie McGrath and Peadar Tóibín.
Question declared carried.
Amendment declared lost.

Amendment No. 9 is in the names of Deputies Catherine Murphy, Richard Boyd Barrett and Joe Higgins. Amendments Nos. 9, 28, 42, 75 and 130 are related and may be discussed together. I call Deputy Catherine Murphy.

I move amendment No. 9:

In page 6, between lines 1 and 2, to insert the following:

“ “consent” means consent obtained freely without threats or inducements, where the medical practitioner—

(a) is satisfied that the woman is capable of understanding the nature, purpose and likely effects of the proposed treatment, and

(b) has given the woman adequate information, in a form and language that the woman can understand, on the nature, purpose and likely effects of the proposed treatment;”.

I want to address the amendments with which my name is associated. Amendment No. 130 is the one that probably outlines in greatest detail what is sought. I would have thought it would be almost self-evident that it should be part of the legislation that consent is stated rather than implied. However, we all know it is unlikely that even one dot on an i or one cross on a t will be changed as a consequence of going through all of this tonight, and I particularly want to deal with the items in the next grouping. At this stage, I want to formally propose amendments Nos. 9, 42, 75 and 130.

I want to speak on amendment No. 28 in my name. There are two aspects to my amendment, both of which arise out of the discussions on Committee Stage. My proposed subsection (4) comes back to an issue that was debated at length in committee in regard to the need for regulations that come into force under this Bill to be approved by both Houses of the Oireachtas. There is huge scope within this legislation for regulations under the Bill. As we know, the Taoiseach gave a commitment last December that we would have the regulations published in tandem with the legislation. That has not happened and, therefore, I put forward this provision to allow for these regulations to be discussed and approved by the Oireachtas, which is important.

The other part of the amendment, which proposes the substitution of subsection (3), states: "The Minister shall make regulations to provide for the procedures to be employed where a pregnant woman is unable to give informed consent." As the Minister and Members who participated in the Oireachtas hearings will be aware, there was consistent agreement by every single witness who came before the committee that the issue of consent needed to be addressed in this legislation or that we would have the capacity legislation in tandem. The Minister was not able to give an indication on Committee Stage as to when the capacity legislation would be published or enacted. In light of that, I believe some provision needs to be made in regard to the issue of consent.

I want to support the contention of Deputy Naughten. As the Minister, Deputy Coveney, knows, when we were taking the Animal Health and Welfare Bill, I made a very strong case that the regulations made under the Act should be brought to the relevant committee of the House before being signed off by the Minister, and that they would come in draft form. The traditional practice of signing the regulations and then laying them before the Houses, and allowing them to stand if they are not annulled within a certain number of days, is outdated. It would be much better practice to bring regulations before the House, listen to proposals from the relevant committee and then, having considered possible amendments from the committee, to make the regulations. Therefore, I support Deputy Naughten on amendment No. 28.

I want to support Deputy Naughten's amendment. It is a matter of concern that regulations or statutory instruments could be passed without coming before the House. That is my worry.

These amendments deal with the issue of consent, something we discussed at some length on Committee Stage. This issue was addressed in section 16, which clearly states that the provisions of the Bill will operate within the existing legal provisions in regard to consent for medical procedures. The guide to professional conduct and ethics for registered medical practitioners of the Medical Council provides extensive information on the appropriate process to be followed to obtain valid informed consent for medical procedures - in fact, it contains ten pages on consent. The HSE has also recently published its national consent policy, which includes detailed information on what constitutes valid and genuine consent and how to obtain it. The capacity legislation, to which Deputy Naughten referred, will be published next week. Therefore, I do not propose to accept these amendments.

Amendment put and declared lost.

Amendment No. 10 is in the names of Deputies Catherine Murphy, Seamus Healy, Mick Wallace, Richard Boyd Barrett and Joe Higgins. I call Deputy Catherine Murphy.

I move amendment No. 10:

In page 6, between lines 2 and 3, to insert the following:

“ “fatal foetal abnormality” means a medical condition suffered by a foetus such that it is incompatible with life outside the womb;”.

Some of us felt there should be a space to stretch this legislation to deal with the issue of incompatibility with life, and to deal in a more compassionate and immediate way with the very tragic circumstances that very many women find themselves in, where they are pregnant but there will not be a baby at the end of the pregnancy because the baby has a fatal foetal abnormality.

I said earlier that I had visited Liverpool National Health Trust Hospital last week, specifically in regard to this issue. One of the things the consultant obstetrician to whom I and others spoke said was that the hospital was concerned in regard to the care of the women they see when there is the absence of a complete medical history. The follow-up care that would normally be available is very often not available because people obviously have to travel outside of the country, which is a costly exercise, they are often detached from their family and there are sometimes other children and other considerations. Therefore, they do not get the follow-up care in that hospital that the hospital would wish to give them, including care like genetic screening.

I said earlier that the one thing the staff did say that was different about Irish women as opposed to the other women they see, who are mostly from the UK, was that the Irish women expected that staff would be judgmental. It is really quite tragic that this is the feeling they should have.

We had a young man with us whose wife in late 2011 had a termination in those circumstances in that hospital. He went back there and particularly wanted to thank the staff in the hospital for their compassion, their care and their attention to her.

He could not speak more highly about them. He talked about how they had to come back on Christmas week with people who were coming home for Christmas. Arrangements had to be made before they left about how the ashes were to be delivered. Three weeks later, luckily he happened to be in the house the morning DHL arrived. A man arrived at the door with a big smile on his face, thinking he was delivering a package that someone had ordered online but it was the ashes of the baby they wanted. That is the kind of circumstance people must deal with.

I am sorry to interrupt the Deputy. I should have said amendments Nos. 10, 11, 21, 30, 81 and 83 are related and may be discussed together.

A number of us met a group of people who were brave enough to put themselves out there. It seems that one must do that in this country. One must become visible for people to understand the issue. We met men and women in the AV room a few weeks ago and they told us of these harrowing situations. If it is not possible to deal with this in a constitutional way in this legislation, the least we could should get is a commitment that it will be dealt with in a timely fashion by way of a referendum. It is the least we can do to end this absolutely barbarous approach to a tragic time in people's lives. It was said to me that we cannot change the diagnosis but that we can change how women and couples are treated in this situation. I urge the Government, if it cannot accept this, to provide us with that commitment tonight.

The Minister for Justice and Equality, Deputy Shatter, earlier suggested the six avidly pro-choice Deputies voting "No" might be explained by some kind of political posturing. I want to make it clear to him and to the Government that it is a mistaken judgment. Some of us feel we must, reluctantly, vote against the Bill. There is nothing in it for us to vote "No". We wanted a Bill that legislated for the X case and went as far as it could go. We were conscious of the limitations on how far it could go. We do not expect things that cannot be given within the framework of the X case judgment but we do want everything that could be given within the framework and limitations of the X case judgment to advance the welfare and the rights of women to terminations where they need them. We have already discussed a couple of the issues we are particularly concerned about, which are unnecessary, too restrictive and erode the rights given to women under the X case. I refer to the requirement for more doctors than necessary or prescribed by the X case judgment, which does not prescribe a particular number of doctors. Similarly, we are deeply concerned about criminalisation.

For me and for many of the Deputies forced to vote "No", this issue is the dealbreaker. It is unacceptable that the Government passes up an opportunity to deal with the most terrible circumstances. If the Government could not deal with it, we would accept it, although we would ask for, and expect, an assurance and a commitment that it will deal with the matter forthwith. The Government has not provided a commitment, despite the fact that the Government said it agrees pregnancies with fatal foetal abnormality are terrible and tragic and that no woman should have to be put through a situation where she must travel to Britain for an abortion and not be able to avail of the service here with the support of family and friends. Members on all sides of the House accept that the situation is unacceptable and that something must be done yet the Government has made no commitment to do something about it. That is of deep concern and is unacceptable if anything could be done, as we believe is the case.

At least 20 eminent legal experts, barristers, law lecturers and solicitors have said that in situations where a wanted pregnancy is diagnosed as involving fatal foetal abnormality, because the conditions are incompatible with life, allowing a termination does not clash with the imperative in the Constitution to protect the unborn child. A condition incompatible with life is not a viable life. It is not an unborn child because we are talking about a foetus that cannot live, where there is no prospect of life or viability and therefore there is no clash. We believe it is entirely compatible and that there is legal evidence to support the view that it is compatible with the X case judgment and the current constitutional limitations. The Government has said that it could be subject to legal challenge and that the legal advice of the Government runs counter to the view. That may well be the case and those who support our view accept that our viewpoint is not cast-iron in respect of the potential compatibility with the Constitution of allowing for terminations in these cases.

However, they go on to say something the Minister of State, Deputy White, acknowledged on Committee Stage, that nothing is certain in law until it is tested. It has as good a chance of passing legal muster as many elements included in the Bill. Saying that it could be legally challenged is not a reason to exclude it because it is so important and everyone agrees it is unacceptable that the situation should persist if it does not need to. We have an obligation to include it in the legislation and to try to deal with it. If it is struck down, we can do something afterwards to deal with that. The Government should give a commitment to do so but it has not done so.

When that is combined with the criminality clause providing for a potential 14 year prison sentence if terminations are carried out or procured outside the terms of the Bill, it maintains a stigma of criminalisation over women in these tragic circumstances who are forced at a rate of 1,500 a year to travel abroad where a pregnancy they wanted is not viable because of fatal foetal abnormality. It is unacceptable that women forced to travel abroad in those circumstances, which they have a legitimate right to do, are doing something that is treated as a criminal offence in this country subject to 14 years imprisonment. That is terrible. It is bad enough that women should be put through this. To be put through it in circumstances where the State describes what they are doing as criminal and subject to 14 years in prison is appalling. To how much extra anxiety, horror and cruelty does that subject women faced with that appalling situation? It is unacceptable to allow that to persist.

Even if the Minister did not accept those first two points, the third point is unanswerable. The definition of "unborn" included in the Bill sets it down for the first time in law. It states that the unborn child begins at the moment of implantation. That means the Minister is not only failing to deal with the issue of fatal foetal abnormalities in the Bill and maintaining the stigma of criminality over it, he is putting into law something that will prevent him dealing with the situation of fatal foetal abnormalities in the future. Under that definition of the unborn child, a woman who seeks a termination of a foetus with a fatal foetal abnormality will be guilty of killing an unborn child as defined in the legislation. That is unacceptable. We have proposed an alternative wording. I think I speak for the other six Deputies sponsoring the motion in saying that if the Minister changes the definition, we will vote for the Bill, notwithstanding the fact that we want it to go much further and that we have major problems with its regressive characteristics. If he just conceded this unanswerable plea for compassion and action, we could support the Bill.

Families in the Terminations for Medical Reasons group said they did not want any more compassion, they wanted action. We appeal to the Minister on their behalf and on behalf of all those families who will go through this terrible situation and who have gone through it, for action. The action the Minister could take is to change the definition of "unborn" to ensure that terminations in these circumstances will not be equated with the taking of the life of an unborn child. It is a different, unique case. We have proposed an alternative definition of "unborn" which deals with that problem. We do not see why the Government cannot adopt it. We do not see why the Minister had to include a definition of "unborn" in the Bill at all. We would appreciate an explanation from the Minister of why he has failed to deal with that and why he appears to be including in the Bill a provision which will preclude him from dealing with these most terrible circumstances without having to repeal this section of the Bill.

I rise to speak to the group of amendments, of which Nos. 10, 11, 30 and 81 are in my name. Provision in respect of fatal foetal abnormality and inevitable miscarriage should and could be included in the Bill within the terms of the Constitution. The group Terminations for Medical Reasons have pleaded with the Oireachtas to deal with the tragic issue of fatal foetal abnormality. These are much wanted pregnancies which, sadly, turn out to be incompatible with life. The group states:

It is happening every day. Please do not ignore this crisis. We ask you to include provision for termination of pregnancy on grounds of fatal foetal abnormality as part of the forthcoming legislation on abortion in Ireland.

The group indicates that there are 1,480 of these cases every year. These couples are forced to travel to Britain to seek terminations. As they have said, compassion is all very well, but what they need now is action. They need the provision to be included in the legislation. They have published their own stories. It would be informative for the Chamber to hear one of them. I quote:

At 22 weeks, we went in for our scan. We were shocked when after nearly two hours of scanning, we were told that our baby was incompatible with life and was going to die. We were further shocked when our consultant told us that our options were to continue with the pregnancy or travel to Liverpool. Our baby had no kidneys, brain abnormalities and spina bifida so severe that if it had been the only thing wrong, she would still have died.

This is an example of the tragic circumstances in which as many as 1,500 couples find themselves every year.

These issues could be dealt with within the terms of the Constitution. Quite a number of legal experts have confirmed this view and put forward that view clearly at the hearings of the committee. They are strongly of the view that dealing with terminations for this particular condition is compatible with the Constitution. It is important to note that the State itself is on record as inviting the European Court of Human Rights in D v. Ireland to adopt the view that termination for fatal foetal abnormality is compatible with the Constitution. The Irish State argued that D should have applied in the Irish courts first because she had a reasonable chance to establish that the Constitution did not apply to a foetus with a lethal anomaly. Although Article 40.3.3o excludes a liberal abortion regime, it was submitted that a court would not apply it with remorseless logic to such exceptional and tragic circumstances. The Government invited the court to adopt that view.

An important section of the judgment itself is as follows:

Accordingly, although it was true that Article 40.3.3° had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was "at least a tenable" argument which would be seriously considered by the domestic courts to the effect that the foetus was not an "unborn" for the purposes of Article 40.3.3° or that, even if it was an "unborn", its right to life was not actually engaged as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3° clearly excluded an abortion in the applicant's situation in Ireland.

There is overwhelming evidence that fatal foetal abnormality can be dealt with in this Bill in a way that is compatible with the Constitution.

Briefly, I will refer to amendment No. 11 on inevitable miscarriage. This is also an amendment that I and many others believe could be included in this legislation and would be compatible with the Constitution. Sadly, this is what happened in the case of the late Ms Savita Halappanavar. It is important to recall what the HSE report, only in June of this year, stated on this question of inevitable miscarriage. The report states that "concerns about the law ... impacted on the ... clinical professional judgement", and recommended that "the Oireachtas consider the law ... in relation to the management of inevitable miscarriage in the early second trimester". It states that the clinicians' plan for treating Ms Halappanavar was "wait and see" due to the interpretation of Irish law. If inevitable miscarriage is not included in this legislation, the continued effect of Irish law will be that medical conditions due to pregnancy that are not in themselves life-threatening, such as inevitable miscarriage, must be left to become life-threatening in order for a necessary termination of pregnancy to be legal. That is an unsustainable position, and the amendment must be included in the Bill.

As we all would probably agree, ideally, we need a referendum to remove the Eighth Amendment to allow for a woman's right to choose. At a minimum, Amnesty International has stated that until Ireland's laws allow for abortion in cases of rape and incest, risk to a woman's health, or fatal foetal abnormality, they will be out of line with international human rights standards.

I will not repeat what has been stated a hundred times in the past year. The Minister insists that the Attorney General was not content to change the legislation to allow for cases of fatal foetal abnormality. He argued that it would not pass the test of the courts. Some experts seem to insist that it would, and the Attorney General seems to insist it would not, according to the Minister. If that is the case, should the Government be working towards a situation whereby we can deal with fatal foetal abnormalities and with cases of rape and incest? Given that the Government will be in power, I presume, for at least another two years, perhaps two and a half, should it be working towards that?

Surely the Government must agree that the present arrangement is not a good one. The idea that a woman who is raped cannot legally get an abortion in this country is not good. The fatal foetal abnormality cases are too tragic to start talking about again. We have heard the women in here telling their stories and they are just too bad to listen to. This is not a good position for the State and we should do something about it, and likewise in the case of incest. I wonder has the Government any plans after this Bill is passed to progress matters in order to deal with these issues.

I will be succinct. Here we really get to the essence of the problem for myself and the Socialist Party. The Bill was supposed to legislate for the tragic circumstances of the X case, for which we fully support the provision of legislation. Unfortunately, the Government then went on to construct a Bill which was so restrictive that, rather than dealing with a problem, it created other problems for women in crisis or difficult pregnancies which can result in danger to the health and, potentially, the life of a woman.

The provision we have made for inevitable miscarriage should be accepted by the Government and should be included in this legislation. The current position is that a miscarriage with complications must, in essence, be allowed to continue to the point at which the life of the woman is threatened before a termination is possible. This is not a sustainable position. It arises from the distinction that is made between the life of a woman and the health of a woman, and this shows quite clearly that it is not sustainable. The amendment should be allowed here.

Similarly, with regard to the fatal foetal abnormalities, the arguments have been made. It really is unsustainable for the Government not to accept a change that, even by its standards and within the narrow limits on which the Government states it is legislating, is arguably within the constitutional parameters. As a signal that society should deal with these tragic situations in a humane and compassionate way, the Minister should accept the amendment that allows fatal foetal abnormality as justification for a termination in such cases. It is simply horrific that we are legislating for a situation that forces women who decide to terminate their pregnancies in cases of fatal foetal abnormality to leave the State, because if they remain in the State and avail of a termination here they could be subject to 14 years in jail.

This is a breaking point as far as I am concerned. It is because of this combination of issues, in conjunction with the criminalisation of a woman in those circumstances - indeed, in other circumstances - that I am voting "No" to this legislation. I issue a plea that we have to open up a debate immediately on the need for the repeal of Article 40.3.30, for a new referendum so these restrictions are removed. Then we can legislate for the real needs of women as they exist in Ireland of 2013 and take into account and deal with the situation of inevitable miscarriage, of fatal foetal abnormalities and of the thousands of women who decide they have to terminate a pregnancy but are forced to leave this State in order to carry that out.

I commend my colleagues on tabling amendment No. 10 which I fully support. Like many Deputies I have met the families of people directly affected by fatal foetal abnormality. I have also seen the sadness and the hurt in their eyes. These were all wanted pregnancies. This amendment is crucial. I was told of a woman in that situation who had to travel to England. I was asked to support this amendment because the situation had a devastating effect on the woman and on the whole family. The travel issue was also another aspect that had a very negative impact on that family.

In supporting this amendment I refer to the need to show compassion for women and to offer them support. Over the past week there has been much talk with reference to the Minister of State, Deputy Creighton, about integrity and standing up for principles. Those of us on the other side of the debate are standing up for principles, for integrity, for compassion. I ask where is the compassion towards those women directly affected by fatal foetal abnormality. The issue has been dodged this week but this has not been reflected in the media reports. The same applies to victims of rape and incest. This amendment gives meaning to the Title of the Bill in that it deals with the protection of life during pregnancy. I stress the word "fatal" in the amendment. The Minister and the Government should look at the wording of the amendment. Fatal foetal abnormality means a medical condition suffered by a foetus such that it is incompatible with life outside the womb. The amendment is very clear and precise in this regard.

Others may disagree but the key solution to this issue is to give women a choice when faced with this situation. I am a parent of a child with a disability. I do not agree with any kind of selective termination because of disability or gender, as happens in some countries. I strongly disagree with selectivity. The issue of fatal foetal abnormality must be dealt with and I believe it will be dealt with in the future. The vast majority of Irish citizens have great compassion and they support women. They want this particular issue dealt with. Even though I have concerns because it is not provided for in this Bill I will be supporting the Bill because it is what is on the table and I have no option but to support it.

It is very difficult at this stage after 11 hours of debate to keep it together but this group of amendments is particularly important, given that they deal with the areas of fatal foetal abnormality, the issue of inevitable miscarriage and critically, in my opinion, the new definition of the unborn which unless it is amended will give rise to serious problems in the future.

Without repeating points made by other Deputies, when we moved our Private Members' Bill over a year ago it was the first time that a number of women - and their partners - came forward and publicly identified themselves as women who had abortions because of fatal foetal abnormalities. People will still remember those four women who went on the "Late Late Show" and really opened the eyes of the nation to the fact that in this day and age people were subjected to what the Minister for Justice and Equality has latterly called the indefensible cruelty of being forced with a choice of carrying to full term a foetus which has a fatal abnormality or being faced with the decision to leave this shore almost under cover of darkness, without support from family and friends. These people have touched all of us. The issue is whether we are going to do anything about their case.

The Minister of State, Deputy Alex White, said on Committee Stage and earlier tonight that the Government is only obliged to deal with the issues related to the convention, the implementing of the A, B and C judgment and the X case, that it is not obligated to go any further. A Government is obligated-----

That is not what I said.

The Minister of State can correct me in his report.

I said that was all that could be done. That is different. Please do not misquote me.

I apologise. I did not realise the Minister of State was infallible. In his opinion he thought that was all that could be done-----

The Deputy is misquoting what I said.

I am quite happy to correct the record of the House, to say that in the opinion of the Minister of State, he thought that this was all that could-----

Everything we say in this House is our opinion.

That is okay. He said I misquoted him-----

That includes Deputy Daly.

I have corrected it. I know that everyone is getting a little bit tetchy as it is late in the night.

The Deputy persists in misquoting people and she should not do that.

I quoted earlier from the expert group which backed up my viewpoint and not his but I will quote again so that he will have no misapprehension-----

The Deputy should pick it out again and I will quote it back to her.

He should do that. However, can we deal with the facts of the almost 1,600 families who experience fatal foetal abnormalities every year in this State? That issue has touched the hearts of all of us, including the Minister of State. It is the question of what we can do and to do it. If it is the Minister of State's contention - which I believe it is - that he is lawfully permitted to go no further, to not include it at the moment, then our question to him is what is he going to do about it. Why has he not brought other legislation alongside this Bill or a proposal for a referendum if he thinks that is necessary, if he is truly serious about dealing with this issue?

Why was it not included in the Deputy's Private Members' Bill?

Please allow the Deputy to finish.

It is really derogatory of the families facing this situation. If the Minister of State wishes to continue interrupting we have quite an amount of time. However, I want to deal with this State's obligation, under human rights law and the intervention of the State's human rights watchdog, the Irish Council for Civil Liberties which has said that there is an onus on us to go further in this legislation and that the State can go further. Recent case law from the European Court of Human Rights on the issue of reproductive rights as set out in a number of cases relating to Poland, indicates that the Council of Europe states are obliged to ensure that the women seeking lawful terminations are not exposed to inhuman and degrading treatment, contrary to Article 3 of the convention on human rights. The Irish Council for Civil Liberties is of the opinion that it is clear that the current treatment of women with pregnancies involving a defined set of fatal foetal abnormalities would be covered by this.

Other Deputies have made the point that the State itself has argued that fatal foetal abnormalities could be legislated for within the confines of the existing constitutional restriction. That is precisely because of the point made by other Deputies that our constitutional provision and protection equates the life of the women with that of the unborn, and if there is no life to protect, the constitutional protection does not exist. That is critical to this point.

Our opposition to this Bill does not arise from what is omitted, although it has some shortcomings, but rather from what it contains. I agree with Deputy Boyd Barrett's point that if this one definition was changed, we could support the legislation. We now have unborn human life for the first time being defined in Irish law and although the Minister, Deputy Reilly, stated earlier that it was only for the purpose of this law and it would not relate to anything else, that is not the case and legislation clearly does not operate that way. The points being made about viability, which have been put forward by the likes of the Irish Council for Civil Liberties, the Irish Family Planning Association etc. could not be envisaged if the definition is made in the manner sought by the Government, giving protection from the moment of implantation until the moment of birth. It is important to state that this is a unique definition in European law and it is not helpful. We would replace that definition as being one where the foetus is capable of independent life, which is a far better and more appropriate definition in the current scenario.

The issue of inevitable miscarriage is not being addressed in this legislation. We have read the HSE report on the difficulties around Savita Halappanavar's case but a lack of clarity will prevail if this legislation is passed. As long as there is a foetal heartbeat, a doctor's hands can essentially be tied, even in a case where there is the possibility of inevitable miscarriage. We have heard from the doctors in Galway that the risk to a woman's life had to be real and it could not be a "perceived" risk; in that sense, the infection would have had to become critical in Ms Halappanavar's case before they could intervene. Nothing in this Bill is dealing with that issue, which is why amendments have been tabled. People can have different legal interpretations and opinions but some issues are quite clear. It may be immoral and abhorrent that we cannot deal with issues of a woman's health being in danger because of strict constitutional provisions but a sizable body of legal opinion has indicated that we can legislate for this issue. I am very glad about that.

The Minister of State, Deputy White, asked why the provision was not in our Bill. As Opposition Deputies, we do not have access to the Attorney General or lofty legal opinion in the preparation of our Bills but we do our best. We would have been quite open to amendments and it is fair to say that our Bill gave a platform to women and couples to come forward and put their stories into the public domain. This educated society far beyond the realms of what had been done previously. Not only that but it forced the legal profession and other human rights organisations to wake up and consider the issue in greater detail. I am sorry we did not have the knowledge at the time but if we had, it would have been included in our Bill. Nevertheless, it is no excuse for a Minister of State to use, and the arrogance and rudeness he has shown is deeply disrespectful to the families which are the victims of a lack of action. I complimented the Minister, Deputy Reilly, on the fact he has legislated in this instance, and we are talking about women, couples, families and decisions that will have an impact. If the Government is serious about being more than compassionate, it should act to address these issues.

I will speak to amendments Nos. 10 and 81, which are extremely important. When we speak about fatal foetal abnormalities, I would rather describe the issue in more human terms by seeing it as being about ill babies. In my opinion, these are babies and viable lives. We have had many instances in the past where prospective parents have been told a child has a fatal foetal abnormality and been advised to avail of a termination of a pregnancy but for one reason or another, it did not happen and the babies in question were born. We have all heard different stories of parents who had many happy years with a child they were told was terminally ill. In other words, they got bad advice.

People are being asked to play God in this instance but there is one person who is entitled to play God, namely God. Mistakes can be made by medical people and if a child is born ill, what would we do except treat him or her for the illness and help him or her in every way possible? It may seem blasé to speak about fatal foetal abnormalities and I prefer to describe the issue in a more humane way. These are ill babies, whether the illness is terminal or not. People have told stories of children born who may live for a number of years, and when they were with their parents, they brought immense joy, even if they were not in perfect health. Even if their lives were short, they brought happiness to the homes to which they were born. We must hear both sides of the debate, and I take grave exception to amendments Nos. 10 and 81.

When we put forward Deputy Daly's Bill twice last year, if we had known that we could have formed legislation around fatal foetal abnormalities, we would have done so. In the discussion of those Bills, we heard from families who told a tragic story to the Minister and the world about those desperate issues. They received support and legal advice related to the D case in the European Court of Human Rights and whether a foetus which cannot survive outside the womb is covered by legislation. That is why the Termination for Medical Reasons group has been in contact with lawyers and drafted good legislation relating to fatal foetal abnormalities.

As has been stated already, the Minister is indicating the Attorney General cannot accept this despite claims that this is a tenable argument under Article 40.3.3° of the Constitution that the right to life of the foetus is not applicable where there is no prospect of surviving to birth. That is what our counsel stated with regard to the D case at the European Court of Human Rights. If that is not the case, it has been argued by the Minister of State, Deputy Kathleen Lynch, that she wants the woman and the decisions made with regard to her pregnancy and instances of rape and incest, for example, to be respected. If the Government, under the guidance of the Attorney General, is saying that cannot happen, why is it taking its stance on inevitable miscarriage?

One cannot say categorically that there will be a referendum on Article 40.3.3o to repeal the eighth amendment to allow that. The clarification of the definition of the unborn is particularly chilling as it remains linked to a criminal offence with potential for a 14-year prison sentence not only in the case of fatal foetal abnormalities and inevitable miscarriage, but also in the case of the abortion pill. If a woman takes the abortion pill, aborts, has complications, attends an accident and emergency department, is asked whether she has taken the abortion pill and says "Yes", a concerned medic might say she has done something illegal. Could that young woman face 14 years in jail because of the unborn being classified from the moment of implantation? That is why we tabled an amendment saying unborn means a foetus which has reached that stage of development at which, if born, it would be capable of life outside the womb. The Minister should take that on board. We cannot support this aspect of the legislation. A 14 year sentence is longer than the sentence many men who rape women get in court. That is why we cannot support the Bill is any shape or form.

Two weeks ago on Leaders' Questions, I brought this issue up during a visit to the House by a number of women who then held a press conference in the hotel across the road. They got together and produced a booklet entitled, A Family's Journey of Torture, in which 35 women related their stories of fatal foetal abnormalities. If one listened to their stories and what they go through, one could not but be shocked to the core. We have spoken a great deal over the past number of weeks about compassion and crises of conscience. We should all reflect on the crisis of conscience some of these women faced when they were told the foetus in their womb was incompatible with life and it could have a traumatic psychological effect on them if they went through with the birth. Inevitably, a substantial number of them, not all, made decisions that they would be unable to do this and they asked for compassion and help from the State but they did not get it. All of them had to leave the country under dreadful circumstances, some without their families and loved ones. They faced a terrible journey to Liverpool and an even worse journey back.

I find it incredible that we would treat human beings in such a barbaric fashion. During Leaders' Questions, I told a story about a woman who was due to attend the House that day but who broke down outside the gates and had to be brought home. Her story was horrifying. She said she decided to go through with the birth against advice because the foetus was severely deformed. It suffered from encephalopathy. When she gave birth, the baby died within 12 minutes and to the present day, she has nightmares and she is psychologically traumatised. That was her choice but it is not the choice of many women who are told this may be the case if they decide to proceed with the birth. This affects between 1,400 and 1,500 women a year, which is not a tiny minority. All the medical evidence points to this having a lifelong effect on their quality of life, their sex lives and how they view children, and we are saying to those women who are psychologically unable to go through with the pregnancy that we cannot do anything for them but something can be done for them in England. We agree that in England they should be able to do something and we say we have compassion for them here. That is appalling and outrageous.

I have some sympathy for the Minister and the Government given how difficult it is to bring in this restrictive legislation. He gave a commitment years ago that he would something about Article 40.3.3o. He met a group of these women and they openly said he showed great compassion and he was visibly upset. Why would he not be, given all of us were upset when we met them? As previous speakers said, at this stage they need help, not compassion. We cannot continue to ignore such a substantial number of women. We are leaving hundreds of women in the State traumatised for the rest of their lives because we will not give them the choice, which is a compassionate choice.

I refer to amendment No. 11 and inevitable miscarriage. Pregnancy is not a benign condition. Young women who went to full term where the baby did not survive had significant damage done to their lives. I have met women who, having gone through the pregnancy, were physically damaged. I acknowledge the Minister will not accept any amendments at this stage but I believe him to be a compassionate man and he has also met these women. Even if he were to give hope to them for the near future. I am not putting this up to the Minister on the basis of how I will vote for the Bill because I will support the Bill, whether he makes this amendment or not. The Minister for Justice and Equality practically said it should be made. However, I appeal to the Minister, Deputy Reilly, to give some help and some hope to these women and to the 1,400 women who will face the same torment next year and the year after that. We cannot allow this to continue.

The European Court of Justice has commented on this and we cannot allow these women to continue to suffer like this and to allow them to be tortured, which is what is happening to them. This is why they have called their document, A Family's Journey of Torture. I appeal to the Minister on behalf of the thousands of women in Ireland to whom this has happened and the thousands to whom it will happen to deal with this serious issue in the near future and not to treat them in such a barbaric fashion. We should have compassion for them in this State. We should say to them that this is wrong and we think they should not have to go through this, not that we cannot help them and they must go to England.

I refer to the amendments on fatal foetal abnormalities. In the past year or so I have heard the testimony of women who have travelled to Liverpool to have terminations because they had a diagnosis of fatal foetal abnormality. It was very difficult to listen to that testimony and, for me, very difficult to accept that in 2013 Irish society would force women to make those journeys with a baby they had been looking forward to having, knowing that baby had no chance of survival outside the womb and they had to make a very difficult decision. Our society and our community would not accept that they should make that decision here, in the comfort of their family and familiar surroundings. We forced them to travel to Liverpool to have terminations. Thankfully, they were treated very well there and received the compassion they should be getting at home.

In the past year I have also listened to the testimony of women who were given a diagnosis of fatal foetal abnormality but decided to continue with the pregnancy and have their babies who subsequently died, some within minutes, some within hours, some within days. That was a choice they could make, however, one we have denied to other families. Thankfully, I have three healthy children and have never been in that situation. I do not believe any family or couple, or any Irish woman should be put in that situation and be forced to travel to England to have a termination in Liverpool. We should be able to deal with this, as I believe we can. The Supreme Court in 1992 did not test this definition or argument; no evidence has been heard in its regard then or since. Are we going to wait for a woman to take a case in the High Court, appeal it to the Supreme Court and have the definition changed in that court, and then wait another 20 years before we can bring forward legislation to implement the court's decision - if it makes that decision? I do not believe we should. We can accept these amendments and, if necessary, have them tested in the Supreme Court. As I understand it - the Minister of State, Deputy White, will correct me if I am wrong - this amendment could be accepted and the President could ask the Supreme Court to adjudicate on it. If the court ruled against it, that section would fall from the Bill but the actual Bill would stand. That would be a very quick solution to this problem. I do not believe the Attorney General is infallible or that the legal advice we have in support of these amendments is infallible but I believe the Supreme Court should be in a position to test it. By doing that, putting it to the test, we would be doing a service to everybody in our society. It is vitally important to show that compassion. We should not continue to force women into making that extremely difficult decision.

Deputy Healy-Rae referred to terminations on grounds of disability. There is no proposal before us, in these or any other amendments, that would allow for a termination on such grounds. The issue is viability - the prospect of viable life beyond the womb.

The issue of fatal foetal abnormalities cries out for address as, I believe, all of us have recognised. We in Sinn Féin have been guided in our approach to this Bill by our democratically arrived at policy decisions relevant to these matters. The last reworking was in 2008, with a reaffirmation in each of the years since, but we have not catered for fatal foetal abnormalities. Addressing such issues was not on our radar at that time or since so we, too, have a job of work to face up to.

It is very important we understand that what is being spoken of is a foetus which has no prospect of life beyond the womb. For women who learn that the unborn they are carrying have no prospect of life after reaching full term the news is absolutely devastating, as it is for their husbands or partners. The stories that have been shared, not only in terms of the presentation in the audio-visual room of this House but in private engagement with many of us in recent weeks, are harrowing. Without question, our hearts go out to women in these circumstances. We have a responsibility to address these matters. The issue of inevitable miscarriage is another issue that was highlighted.

In this grouping of amendments we can make a distinction in respect of amendments Nos. 10, 11, 81 and 83, in that we do not have a fully fledged policy position that caters for these particular matters. If one or more of these amendments are pressed, because of our party position and in the absence of a clear, defined policy statement, we will have to abstain. However, I am indicating that we understand and accept these are matters that require address. I join other colleagues who have made a strong case to the Minister and his colleagues, the Ministers of State, to indicate positively the means that can be employed to address these matters within a reasonable timeframe.

I support these amendments, in particular those that relate to fatal foetal abnormality. I must admit that until recently I did not appreciate the extent of this issue nor that so many women and couples were affected by it. In recent months, however, I and many others have learned a great deal about this condition. We have heard the stories of couples who received these awful diagnoses for the children they were expecting, who were very much wanted. We are not talking about a situation where the unborn is ill but rather where the unborn has a condition that is not compatible with life outside the womb. It is a very definite and clear diagnosis. I understand that the numbers of people affected are close to 1,500 per year. A heartrending presentation was made to Members of the Houses some weeks ago, at which there was a very good attendance. Everybody in the room was very much struck by the stories we heard from the dozen or so women and some of their partners who were present.

They told those harrowing stories, about which others have spoken, of hearing the awful news and how that affected them. They then had to make a decision about how to proceed in view of the fact that if they chose an early delivery of a child they knew would not survive outside the womb, the only way to do that was to travel to the UK. They told of all the heartbreak that entailed and the awful stories of smuggling back the remains or, as Deputy Daly said, waiting for delivery of the ashes. It really is quite scandalous that we treat Irish women and their partners like that in those very difficult circumstances.

If Deputy Healy-Rae is free some time he might actually find out something about this condition. It is a pity he was not in attendance when the rest of us heard the stories. If he had been, he would have realised that his depiction was quite inaccurate and that maybe he should learn something about the condition. Obviously it is an awful decision for the woman and her partner to have to make and it is devastating, life-altering news for them. It is particularly difficult where there are other children in the family. That is another major consideration: how could one possibly go ahead with a pregnancy, with all that entails for the other young children in the family, only for the child to be born and then die more or less immediately? There are many issues to weigh up in making that difficult decision. It is a matter of shame that the exercise of choice is not available for couples in those circumstances. That needs to be dealt with. There is very strong support on both sides of the House for doing so. Several proposals have been put forward tonight for ways to address the issue. I note the legal advice that is being relayed to us, but where we are talking about the right to life of the unborn, the situation is entirely different when the unborn is not capable of life outside the womb. Does the right to life exist in those circumstances? It strikes me as a definitional issue. I appeal to the Ministers to try to exhaust all possibilities under the Constitution. It is not good enough to come back and say that it is not possible under the Constitution. That is a matter of particular concern, given the recent statements of the Minister for Health and the Tánaiste to the effect that the Government will not revisit the issue of termination. I do not think that is good enough. The Minister needs to come forward with a response that addresses the problem faced by approximately 1,500 people every year. I appeal strongly to him to do that. Whatever the Government parties may wish for in terms of closing off this issue, it is quite clear that is not going to happen. It is not going to be possible because there are too many outstanding issues, including the situation we are talking about now and the issues I raised earlier, the need to revisit the constitutional provision with regard to gestational limits, and other issues that arise. There is a very strong possibility of a legal challenge.

While for political reasons people may wish to put this issue to bed and be done with it, as it were - at least, those are very much the vibes coming from Government - I do not think that is going to be possible. The Government needs to respond to these very real people who are faced with very real and traumatic situations that do occur. I strongly urge the Government to support or accept the amendments before us or, at the very least, to hold out a prospect of resolving this issue within a reasonable time.

We had a good discussion on this issue on Committee Stage. I pointed out then that one of the things this Government or any Government needs when introducing any legislation - not just this legislation, or this type of legislation - is to be sure it can tell the Oireachtas that it is constitutionally sound. On the face of it that sounds a bit harsh and legalistic, but it is still the case that no Government can come before the House and present legislation that it cannot advise the House is constitutionally sound. One of the proposals that the Deputies have set out in this group of amendments is a different definition of "unborn". Amendment No. 21 proposes to substitute for the definition of "unborn" in the Bill the following: " "unborn", means a foetus which has reached that stage of development at which, if born, it would be capable of life outside the womb;". If we reflect for a minute on that proposed definition, we will see that the Constitution refers to the protection of unborn life. We cannot reduce that protection. The Deputies who tabled this amendment are proposing a different definition of "unborn". The term "unborn" is in the Constitution.

I did not suggest it was defined. It is not defined, but I can see philosophically a case for the Deputies' proposal. I can understand where they are coming from in this regard. The necessary implication of the definition they propose, "a foetus which has reached that stage of development at which, if born, it would be capable of life outside the womb" seems to me, unless somebody can correct me or tell me I am wrong in my assumption, to render lawful any abortion below 22 or 23 weeks. If that were the statutory definition of the unborn that we would now put into legislation, we know that any foetus whose gestational development is below 22, 23 or 24 weeks would not be capable of life outside the womb, which would render lawful any abortion before 22, 23 or 24 weeks. Can anybody seriously say, irrespective of what we believe ourselves, that that was the intention of the people in 1983?

It is Article 40.3.3°.

It simply is not sustainable to suggest that.

What we think ourselves is one matter but we have to act within the limits of the Constitution. Are people claiming that it was the intention of the people in Article 40.3.3o to confine the protection given to the unborn to the foetus above 23 or 24 weeks? One cannot say that in the teeth of what the people decided in 1983, much as one would like to. The Oireachtas cannot do that because it would be flying in the face of what the people decided.

Deputy Halligan and others have given accounts of the dreadful experiences sustained by women who found they had a fatal foetal abnormality during the course of a pregnancy. No one disagrees with any of the points made. The strength of the case cannot be denied and it is a point I made on Committee Stage. I am as familiar with it as any man can be and as it has been related to me. I was not at the meeting to which Deputy Shortall referred but I have met a number of women who have experienced this, some of them quite close to me. It is not a case of Members on this side of the House not understanding the human experience people have had. We all feel moved by it.

However, can it be dealt with in this legislation? I have to say, hand on heart, that it cannot be done in this legislation. Deputy Shortall said if it is not possible, then it is not good enough. What does that mean?

It means have a referendum on it.

It is about the commitment to having a referendum.

Some Members advocated that but I did not hear Deputy Shortall advocate it. I heard her advocating for a referendum on another aspect.

The Minister of State did.

The only way it can be addressed is by referendum.

Will the Government commit to it?

I apologise for interrupting Deputy Clare Daly earlier because it is not fair to interrupt Members in full flow. It was late at night but I was not reproaching her for not putting it into her Bill. I was doing the opposite. If it were possible to do this, then she would have done it in her two Bills. I was simply making the point that it demonstrates that she went to the trouble of introducing two Bills but did not include provisions for this matter. Deputy Joan Collins claims it was because they did not have a full appreciation of the problem. Deputy Clare Daly claims they did not have access to the Attorney General.

If they did, they would get the same advice we got which we related on Committee Stage. The advice states that in the case of a foetus with a condition that is incompatible with life but which is capable of being born alive, such a foetus is likely to attract the protection of Article 40.3.3o. I know of a recent letter to The Irish Times from a number of lawyers, some of whom I know, that challenged this. However, I respectfully disagree with them as they are clearly wrong. The absolute preponderance of legal opinion, reflected by the preface of the experts’ report, is that providing for this condition in this legislation would be inconsistent with the Constitution. I say that with great regret.

I accept the Opposition must press the Government as far as it can. I would love to say we could achieve this provision in this legislation but I cannot because it is not the case. Deputy Clare Daly claims - I do not know whether she was reacting to my interruption or whether it was otherwise - that my view on this is disrespectful to the families affected by this issue. That is not fair. It is not disrespectful. It is simply stating the true legal position on this, whether we like it or not.

Deputy Boyd Barrett was irritated by the Minister’s accusation of political opportunism. I would take some convincing that there is not an element of political opportunism on the Deputy’s part. I very much regret saying that but the circumstances are that it cannot be dealt with. In the teeth of that clarity, I cannot understand why some Members still take the view the Government is shirking on the matter or is insensitive to it, unless they are motivated to take some political advantage from the situation.

It is extremely disappointing for the Minister of State to make that charge. The simple reason we brought it up is because families affected by this question asked us to. We chose not to say “No” because we believe they have an unanswerable case for the issue that has affected them to be dealt with. It is as simple as that. I also have personal experience of it and so I understood and sympathised with what they went through.

I understand Deputy Healy Rae’s ignorance of this issue, as many people do not fully understand what these conditions are. It is not about illness, disease or an infection but about the genetic building blocks of life not being constituted properly such that life can be sustained. It is a hard concept to get one’s head around when that diagnosis is delivered. One cannot believe that the baby that one wants will not live. It takes quite a while to understand that. When one does, one understands how terrible it is and that no one should be made suffer unnecessarily more as a result. I do not fully accept what the Minister of State said but I accept he believes it. There are other people with legal expertise who dispute what he has said.

That needs to be debated properly and the argument needs to be taken seriously.

The Deputy's time is up.

Even if the Minister is correct, will he give a commitment or an assurance that he will do something?

In respect of the refrain by the Minister of State, Deputy Alex White, on the previous Bills put, the fact is that in one year the position has changed considerably in the State. First, there has been major education regarding fatal foetal abnormalities, as Deputies have just indicated. Second, the tragedy of Savita Halappanavar happened and educated everybody on the question of inevitable miscarriage. That has changed the level of consciousness in society and the Government should respond to it in its legislative programme. That is the issue.

The Minister for Health has given a definition of "unborn". What are the implications of this for medical treatments to procure an abortion in the very early weeks of implantation? What are the implications in respect of in vitro fertilisation? There are some implications and the Minister should spell them out now.

The Minister of State, Deputy Alex White, seems to take the view that the meaning of the term "unborn" would specifically change the position, that the amendment tabled by some Deputies in respect of the "unborn" is one which would affect this particular amendment on fatal foetal abnormalities. I have some sympathy for his view of the term "unborn". I do not have that amendment tabled. The case of D v. Ireland was taken under the current constitutional provision of Article 40.3.3o. The Government and the Attorney General of the day were of the view that it was possible or that, at least, an arguable case could be made that it would be legal in this country to have a termination on the grounds of fatal foetal abnormality and the Government invited the European court to accept that if that case was put to the Irish courts, there was, at least, an arguable case that it would be accepted. If the Minister does not accept this and tells us that he has sympathy for the case we are making, let him commit to holding a referendum to change the position. That is the simple alternative for him.

I thank all contributors to this part of the debate. Amendment No. 21 states:

In page 7, to delete lines 10 to 12 and substitute the following:

“ “unborn”, means a foetus which has reached that stage of development at which, if born, it would be capable of life outside the womb;”.

What would that mean for a perfectly normal 16 week old foetus with no anomalies? It would have no protection. I will not accept that and the Government will not accept it.

These amendments are attempting to provide for lawful termination of pregnancy following a diagnosis of a fatal foetal anomaly or in the case of inevitable miscarriage. They were discussed on Committee Stage. I know that several of our colleagues in the Dáil would have liked to see these grounds and others being included in the proposed legislation. However, again for reasons clearly outlined by the Minister of State, Deputy Alex White, these provisions cannot be included. I have received legal advice to the effect that inclusion of this issue as a separate consideration in the Bill would go beyond the scope of the A, B and C v. Ireland case. The purpose of the Bill, as the Taoiseach and I have stated on many occasions, is not to confer new rights or to take away any right to a termination of pregnancy but to clarify existing rights.

I would like to ask a question in a completely non-confrontational way because I am a little perplexed and my Chief Medical Officer is also having difficulty with it. I do not understand from where these figures of 1,400 to 1,600 cases per year come. We know that in somewhere between 2% and 3% of births there are anomalies, but only a very small number would be fatal foetal anomalies. If it is 2%, it is 1,400 and if it is 3%, it is 2,100, of which a very small percentage are fatal. That is in no way to diminish the hurt and the pain it causes an expectant mother. I have compassion and great sympathy in this situation, but the issue is beyond the scope of this legislation.

I would like to raise another point that will create real difficulties for us. How do we define "fatal foetal anomaly"? If we are saying a foetus is incapable of independent life outside the womb, does that mean for five minutes, half an hour, one day, two days, one week, or ten weeks? I see real issues that must be addressed. I am not saying they should not be addressed, but they will certainly provide a real challenge in defining what we mean by it and in terms of how we can be certain about this before we give advice. We know there have been cases where advice was given and found to be wrong. That is not to denigrate the fact or deny in any way that advice has also been given that has been absolutely correct.

I regret that I cannot accept the amendments as they are beyond the scope of the Bill. As one of the Deputies across from me argued, there is a question about their constitutionality. There is a difference of opinion. As legislators, we need to have greater certainty when we pass legislation that we know will be challenged in the courts. The purpose of the Bill is not to confer new rights. Therefore, the amendments are beyond the scope of the Bill.

Amendment put:
The Dáil divided: Tá, 19; Níl, 124.

  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Collins, Joan.
  • Daly, Clare.
  • Donnelly, Stephen S.
  • Flanagan, Luke 'Ming'.
  • Halligan, John.
  • Healy, Seamus.
  • Higgins, Joe.
  • Keaveney, Colm.
  • McGrath, Finian.
  • McNamara, Michael.
  • Murphy, Catherine.
  • Nulty, Patrick.
  • O'Sullivan, Maureen.
  • Pringle, Thomas.
  • Ross, Shane.
  • Shortall, Róisín.
  • Wallace, Mick.

Níl

  • Bannon, James.
  • Barry, Tom.
  • Breen, Pat.
  • Browne, John.
  • Bruton, Richard.
  • Burton, Joan.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Collins, Niall.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Conway, Ciara.
  • Coonan, Noel.
  • Corcoran Kennedy, Marcella.
  • Costello, Joe.
  • Coveney, Simon.
  • Cowen, Barry.
  • Creed, Michael.
  • Creighton, Lucinda.
  • Daly, Jim.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Dooley, Timmy.
  • Dowds, Robert.
  • Doyle, Andrew.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Feighan, Frank.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Fitzpatrick, Peter.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Hayes, Brian.
  • Hayes, Tom.
  • Healy-Rae, Michael.
  • Heydon, Martin.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kelleher, Billy.
  • Kelly, Alan.
  • Kenny, Enda.
  • Kenny, Seán.
  • Kirk, Seamus.
  • Kitt, Michael P.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lowry, Michael.
  • Lynch, Ciarán.
  • Lyons, John.
  • McCarthy, Michael.
  • McConalogue, Charlie.
  • McEntee, Helen.
  • McGinley, Dinny.
  • McGrath, Mattie.
  • McGuinness, John.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Maloney, Eamonn.
  • Martin, Micheál.
  • Mathews, Peter.
  • Mitchell, Olivia.
  • Mitchell O'Connor, Mary.
  • Moynihan, Michael.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Naughten, Denis.
  • Neville, Dan.
  • Nolan, Derek.
  • Noonan, Michael.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Dowd, Fergus.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Penrose, Willie.
  • Perry, John.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Shatter, Alan.
  • Sherlock, Sean.
  • Smith, Brendan.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Troy, Robert.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Varadkar, Leo.
  • Wall, Jack.
  • Walsh, Brian.
  • White, Alex.
Tellers: Tá, Deputies Catherine Murphy and Clare Daly; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.
Debate adjourned.