I ask Deputies to cut out the sideshows. Deputy Higgins was in possession.
Protection of Life During Pregnancy Bill 2013: Report Stage (Resumed)
Debate resumed on amendment No. 12:
In page 6, between lines 4 and 5, to insert the following:
" "incest" means the crime of sexual relations taking place between a male and female who are so closely linked by blood or affinity that such activity is prohibited by law within the terms of the Punishment of Incest Act 1908 as amended by the Criminal Law (Incest Proceedings) Act 1995;".
I have a view on how we should conduct ourselves here. We had a very long day yesterday. We finished at matins and now we recommence at vespers, so to speak. It was George Bernard Shaw who wrote a long letter to a friend and apologised for not having the time to write a short one. There is a lot of wisdom in that because if a lot of thought is put into something it enables expression to be sharp and concise. People have thought long and hard about these issues. Many of the key issues from our point of view were dealt with yesterday. Other Deputies dealt with their issues in great detail and that is absolutely correct. However, for my part I intend to be very short and concise with regard to these and the remaining amendments in my name.
I remind the House that in addition to Deputy Higgins's amendment, No. 12, we are also debating amendments Nos. 16, 31 and 84, which are related.
Amendments Nos. 12 and 16 give legal definitions of the horrific reality of incest and of rape, which are both extremely serious violations of a human person and of a woman for the purposes of this legislation. Incest often arises in a family context, in great secrecy and causing great trauma to the victim or victims. Rape, as we know, is a heinous crime perpetrated against women in our society. The intent of amendments No. 31 and No. 84 is that where there is, unfortunately, a pregnancy as an outcome of these heinous crimes, this legislation should address that eventuality if the woman or a child wishes a termination of pregnancy. I think most compassionate people will agree that such a procedure should be available in the State for victims of incest and rape, and that the current situation whereby those victims are obliged to leave the country in order to secure a termination is unsupportable, is barbaric and is indeed utter hypocrisy. The Minister will come back and quote Article 40.3.3° of the Constitution. These amendments are tabled as a marker that these are critical issues that should be dealt with. If they are not dealt with today or if this amendment is defeated, they should be dealt with quickly in the very near future.
This inevitably brings us to the issue of a new national debate on the constitutional provisions, specifically Article 40.3.3°, and the need to repeal that article so that legislation can be put in place to provide for a compassionate resolution of crisis pregnancies arising from the horrific cases of rape and incest. In our society, a huge majority of our people is in favour of such an effort, and the legislation is way behind. The constitutional provision is way out of date compared to where our people have moved in the past 30 years or so, and it is not good enough for us to simply rely on the English solution to an Irish problem.
Along with the practitioner in question, a woman or child availing of a termination in this State, having found herself pregnant as a result of the horrific acts of incest or rape, would be open to prosecution and to a maximum of 14 years in jail. That is unacceptable and the reason we want to raise this matter in a very firm way with the Government today. We are marking an intention to press the issue hard in the next period of time if it is not accepted today.
Deputies Collins and Daly have an amendment in this group; do they wish to speak on it?
Yes, and it relates to the amendments of Deputies Higgins and Boyd Barrett dealing with categorisation of incest and rape of women, which are some of the most heinous crimes that can be committed against women or men in certain circumstances. A woman can become pregnant with an unwanted child as a result of such an act. Some of the Government representatives yesterday indicated again that this legislation does not go far enough and we want to put it on record that it certainly does not go far enough in this respect. If the Government is serious about tackling the issue of women having access to terminations of pregnancy or abortions in Ireland in cases of rape and incest, we should discuss seriously how to put a process in train. From such a discussion there should be consideration of how to repeal the Eighth Amendment to the Constitution to allow us have the debate and reflect what the majority of the country believes in that we should allow abortion or termination of pregnancy in Ireland when the pregnancy is an outcome of horrendous abuse of a woman's body through rape or incest.
We know the amendment will not be accepted but it is important to make the point in the Chamber that the population of Ireland has moved way beyond what we are debating. No amount of intimidation, threats, phony scientific arguments, biased opinion polls or anti-abortion lobbies can change what is happening in our society. I spoke to a woman this morning as I left the house at 11 a.m. after getting a couple of hours' sleep and she told me the debate in the Dáil is a sham because every family has experience of somebody having to travel to Britain for a termination of pregnancy or abortion. I ask the Minister to respond on whether he will start that debate. Will we begin to reflect what society is saying to us as public representatives?
In legislation a woman who has procured an abortion, along with anybody who helps that woman, could face up to 14 years in prison but a person who has raped a young woman would get a shorter sentence. In many cases judges offer financial compensation to women rather than putting these people in jail for their crime. This sends out a bad message to society, as women are being treated as second or third class citizens in such cases. We in the Dáil should not accept this.
Yesterday evening there was an element of unreality about the discussion, with a number of Deputies painting a picture as if we were providing for the unleashing of an Irish abortion scenario that does not already exist. This amendment deals with issues of abortion where a woman has been impregnated as a result of rape or incest, or where she believes it is in her best interest to have an abortion. As a State and civilised society we should address the matter, as thousands of Irish women have abortions every year, although they do not have them in Ireland. There is a double hypocrisy as the State specifically provides and protects their right to have that abortion by allowing the right to information and to travel. There is an insult in saying that the procedure is allowed but not in this country; essentially, the woman must be driven from our shores in order to access it elsewhere.
We must address these issues as a modern society because Irish abortion exists for thousands of women and every family in the State in one way or another has been affected by this. This debate has gone on for months and at its end we will still have one of the most restrictive abortion regimes in Ireland, with 44 from 47 other countries still having greater access to abortion than this country. That does not mean the issue will go away for the women out there and we want to fly the flag in that regard. As a State we must acknowledge the position and move from what is a major symbolic step forward to putting some substance behind it and dealing with the repeal of the Eighth Amendment. That will allow us to address all the other issues. Given the Government's enthusiasm for constitutional referendums, there should be no problem to adding another to deal with these issues in the short term.
Over the past few days we have indicated that some of us believe the Bill will not even achieve its stated intention, which is to protect women whose lives are at risk because of a physical threat or the threat of suicide. In the latter case, suicidal women will not go near this process because it is so restrictive and intrusive in its interrogation of women in a vulnerable position. It fails to bring clarity to cases where women's lives are threatened and how doctors should intervene in such cases. It has failed on that account, as we have pointed out.
Even beyond that argument, in many ways the debate we have had does not focus on the biggest element of the abortion debate, which is the thousands of women who are not in extreme cases but who travel to Britain for abortions because they feel their health is at risk, they have been victims of rape or sexual abuse, or they become pregnant as a result of incest. Some feel their welfare and well-being is threatened by having to continue a pregnancy they do not want.
I must intervene. We are not dealing with the right to travel or related issues. We are dealing with particular amendments proposed by you and others. We are on Report Stage and there are many other amendments. Could we stick to those rather than the general principle of the Bill or issues not contained in the legislation? I have to bring the Deputy back to the amendments.
I appreciate your need and everybody else's need to get this over as quickly as possible.
It is not about getting this over but rather sticking to what is in the Bill and the amendments. That is what we are debating. Do not get me wrong.
On a point of order, if the Ceann Comhairle reads amendment No. 84, he will see it refers to sexual abuse, risk to health-----
Yes, but we are not talking about travel and so on.
-----and risk to well-being, and that is a fairly extraordinary intervention.
It is not extraordinary at all.
The amendment refers to a risk to a woman's health and well-being and pregnancy as a result of sexual abuse. We export that problem and that is deeply hypocritical. It is a reality for thousands of Irish women, and although we accept their right to travel abroad to seek terminations in those instances, we deny them the right to have them in this State. That is an hypocrisy which is unsustainable and needs to be addressed. The purpose of the amendments is to appeal to the Government to address an unsustainable scenario. That reality for women is not being addressed by the State because of its lack of political courage. There can be no other explanation for its refusal to address the untenable restrictions that exist in that regard.
I refer to the eloquent and pertinent statements of the Minister for Justice and Equality in this regard. He put it better than anybody has when he said it was unacceptable that while men can receive whatever treatment they need to protect their health and well-being, women are denied that right. There is a qualification on the right of women to secure the medical services they need to ensure the protection of their health and well-being. This fundamental discrimination exists against women and there has been no commitment by the Government to address it. We are asking the Minister to address it, but he will respond that this cannot be done within the current constitutional framework. While I accept that, the Minister for Transport, Tourism and Sport said on the radio earlier that the Bill should be referred to the Supreme Court, as it will be challenged anyway, which is a good point. The Minister for Public Expenditure and Reform said earlier that the Oireachtas passes laws and any law it passes should be assumed to be constitutional until it is struck down by the courts.
I ask the Deputy to return to his amendment.
If one puts those two observations together and if the Government was serious about addressing the denial to women of their rights to protect their health and well-being, it could at least put this forward as something to be considered, and it if it were struck down, as it probably would be, it could then give a commitment that a referendum would be held to deal with the matter.
One of the unacceptable scenarios the amendment deals with in the context of women having the right to protect their health and well-being is that in which a woman is forced to go ahead with a pregnancy when the foetus is diagnosed with a fatal abnormality. How much more damaging to a woman's health and her sense of well-being could it be than to criminalise a woman who seeks to terminate a pregnancy in those appalling circumstances? This is another issue the Minister must address. The Government, despite consistent requests during the debate, has failed to give any assurance whatsoever that during its term it intends to address these issues. Even now at this stage, I appeal to the Minister to give us some commitment in that regard.
I remind Members that this is Report Stage of a Bill. They have dealt with the general principles on Second Stage and Committee Stage. They are now reporting back to the House, and today we are discussing amendments arising from Committee Stage and those alone. We do not stray into the general principle of the Bill, what should be in it or what is not in it. We are dealing with the Bill as presented and Members are proposing-----
Sorry - on a point of order-----
Will the Deputy sit down for a minute? He has had his say. He is not dominating this debate solely. He is here like everybody else to adhere to the rules of the House and he will adhere to them.
I want to make a point of order.
The Deputy will not make a point of order.
I am trying to make a point of order.
I call Deputy Finian McGrath.
On a point of order, I do not know why the Ceann Comhairle is making that comment when I was speaking directly on this amendment.
Will the Deputy sit down? That is not a point of order. I was reminding Members that we are on Report Stage and I was referring to all 166 of us.
I am grateful for the opportunity to contribute. I refer to amendments Nos. 12 and 84. I strongly support amendment No. 12 because it is sensible and compassionate and it adds substance to the legislation. The amendment deals with the issue of incest. It is important that we reflect on incest and what is going on in many chaotic and dysfunctional families in this State. Every now and then we hear an example of what is going on, and we all know of real-life cases. We need to examine other ways to intervene earlier in crisis cases before we reach what is proposed in this amendment. The health services, the HSE and social workers need to get in quickly to help children and teenagers who are at risk. We have witnessed in the past how the system reacted too slowly. I have concerns about this and it is important that it be addressed in the debate.
Amendment No. 84 deals with rape and sexual abuse. We cannot continue to allow the women who are traumatised and suffering to suffer even more. It is important that Members seriously consider the content of these amendments.
These amendments deal with cases in which a pregnancy results from rape or incest and are an attempt to legislate for lawful termination of pregnancy in such cases. I cannot accept them. The main purpose of the Bill is to restate the general prohibition on abortion in Ireland while regulating access to lawful termination of pregnancy in accordance with the X case judgment and the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. Its purpose is to confer procedural rights on a woman who believes she has a life-threatening condition in order that she can have certainty as to whether she requires this treatment. While the Bill does not permit the termination of a pregnancy on the grounds of rape or incest alone, it is permitted if there is also a risk to the life of a woman. The Bill provides for existing rights only - that is, within the constitutional provisions and the Supreme Court judgment in the X case. It does not confer new substantive rights to termination of pregnancy.
Sinn Féin supports the address of the issue of a woman's right to secure the termination of a pregnancy in the context of rape or incest. It is our party policy.
The heinous act of rape, with all the physical hurt and mental anguish that accompanies it, is confounded by the failure of our provisions to acknowledge this right to take a particular course of action where a woman is a victim in the circumstances so described. I understand fully that is not addressable in the context of the scope of this legislation. I note Deputy Higgins stated he was putting down a marker and am willing to accept that as the purpose and intent because I do not see how this legislation could accommodate what those amendments seek to address. That said, it is an issue we cannot ignore. We have a collective responsibility as the Oireachtas to respond compassionately in the interest of those women who will suffer in this way. I hope the Government will note the views of those who have spoken on this section.
I accept the point the Minister made in regard to the amendments before us. I refer to some earlier comments. On the issue of incest, will the Minister use his good office to close off the 18 year loophole that exists in respect of the law on incest, which dates from 1908? This means a mother may get a maximum sentence of only seven years. That needs to be increased, as for a man, potentially to a life sentence. I have a draft Bill on the Order Paper that could do this. I ask the Minister to speak directly to the Minister for Justice and Equality to move either that Bill or another amendment that would close off that loophole.
Does Deputy Higgins wish to reply?
Yes, very briefly. It is extremely regrettable that in setting out what he wishes to do in this case the Minister has once again narrowed it to the bare minimum. Like the Taoiseach, he has repeated the mantra that this Bill grants no new rights. The Minister, the Taoiseach and the Government have been at pains to minimise the scope of this Bill thereby refusing to take into account what is a crying need in our society, namely, catering for these very difficult and tragic situations of women in crisis pregnancies, as in the case we are now discussing, arising from rape and incest. It is unfortunate that the Minister and the Government are at pains in the first place to satisfy the concerns of certain Fine Gael Deputies and a minority in society, rather than direct attention to alleviate a very real human need in this regard. The alleviation and addressing of this would, moreover, have the support of a big majority in society.
I will leave it at that. If the Minister insists on voting this down he can be assured it will be very much on the agenda in the coming period, along with the tragedy of fatal foetal abnormality and inevitable miscarriage, all critical issues that have to be addressed urgently. They cannot be left to hang for another 20 years as happened with the X case.
Amendment put and declared lost.
Amendment No. 13 arises from committee proceedings.
I move amendment No. 13:
In page 6, between lines 4 and 5, to insert the following:
“ “Medical Council rules or guidelines” means any rules or guidelines for the time being in force under section 11 or 12 of the Act of 2007;”.
I will speak on amendments Nos. 13 and 19.
We are not dealing with amendment No. 19, only with amendment No. 13.
Are they not grouped together?
The Deputy is right. I apologise. There is a revised list which has not been circulated. I ask that it be circulated immediately.
I tabled these two amendments in an effort to be constructive with regard to this Bill and to improve the protective elements in it. I sincerely hope the Minister will see them in this light.
I am aware, as I suppose the Minister is, that the words in a Bill can be significantly different from the generally understood meaning of those same words. The definition of "reasonable opinion" in this Bill seems to me to be entirely subjective. I would be concerned that it would include the caveat of "good faith", which would broaden considerably what "reasonable opinion" might mean. My understanding of reasonable opinion is that it should be objectively reasonable and reasonably arrived at. In the medical sphere this would mean it would be grounded in best medical practice which, after all, is what everybody in this House is trying to achieve in this Bill. Would the Minister agree that the Medical Council guidelines offer objective and dynamic reference points to which reasonable opinion could be linked?
I refer to amendment No. 19. This simply seeks to orientate the language within the Bill to the language in the Constitution, and should give the effect of improving protections of the human right to life. The reduction in variance from the Constitution should help the Government in the long run.
I would like my support for amendments Nos. 13 and 19 to be noted.
I too support these amendments. Both the language we use and the efforts made by Deputy Tóibín to enhance and strengthen the protection for the unborn are vital. I hope the Minister will see his way to accepting these amendments.
These amendments have the effect of making it the responsibility of the Medical Council to decide on the legal circumstances in which a medical procedure to terminate a pregnancy may take place. This is not acceptable. It is the duty of the Government to decide on lawful procedures in these circumstances. Ireland is under a legal obligation to implement the judgment of the European Court of Human Rights in A, B, and C v. Ireland, and must put in place a legislative or regulatory regime to provide effective and accessible procedures whereby pregnant women can establish whether they are entitled to a lawful abortion, in accordance with Article 40.3.3° of the Constitution, as interpreted by the Supreme Court in the X case. I cannot, therefore, accept these amendments.
That is a pity. I believe the Minister is decoupling the Medical Council's understanding of medical procedures from the meaning in this Bill. I will not labour the issue. As it stands in the Bill, there is no foundation or grounding for "reasonable opinion" in existing medical practice.
I support Deputy Tóibín's two amendments on the basis that they provide an objective yardstick or benchmark. Medical guidelines in practice have served the country well. To decouple from that at this stage would probably be unwise.
Amendment put and declared lost.
Amendments Nos. 14 and 15 are alternatives and may be discussed together.
I move amendment No. 14:
In page 6, line 8, after "treatment" to insert the following:
", it excludes any procedure done with the intention of killing a human person, whether born or unborn".
There is a fundamental right to life in the Constitution and in our intentions we all claim to be pro-life. I said this morning during Leaders' Questions that we were all doing our best in this situation to try to deal with a very complex issue that had dragged on for a very long time. There are some fundamental rights. As there is no provision to protect the unborn, if we do not do it in this Bill, the unborn will be left helpless and hapless with nobody to represent them.
I wish to speak to my amendment No. 15. It deals with an issue that we discussed on Committee Stage, the genuine concerns raised by Members on all sides of the House about the possibility of late-term abortions. I tabled an amendment on this issue on Committee Stage and the Minister rightly said that we could not proceed with that amendment. I have put forward an alternative which would clarify the issue of medical treatment. As the Minister knows, under the definitions and everywhere else, the legislation is silent on this issue. We do not know whether there will be regulations specifically to deal with it. I believe this is unlikely because the Minister has said it will be up to the physician to make that determination. I am clarifying that definition to state the medical treatment employed should not impede all efforts to sustain the life of the unborn which potentially is viable outside the womb. The Minister articulated the point very well on Committee Stage when he said no one could attempt to destroy a potentially viable foetus in utero and that was provided for in the Constitution. I question this and believe the legislation is needed to clarify it. That is why I have tabled this amendment which would make sure no medical procedure employed could destroy a foetus in utero where there was the possibility of its being viable outside the womb as a baby. I hope the Minister can accept this amendment.
I support amendments Nos. 14 and 15, but I will not go into any detail on them.
While I can appreciate the concern of the Deputies, the amendments are unnecessary. Section 22 of the Bill makes it clear that it is an offence to intentionally destroy unborn human life. As I said previously, the provisions made in the Bill intend to ensure that in circumstances where the unborn may potentially be viable outside the womb, doctors must make all efforts to sustain its life after delivery. Not to do so would mean that a medical practitioner would be in breach of the proposed legislation and subject to its penalties. I cannot, therefore, accept the amendments.
Will the Minister clarify one comment which he made before? I presume it is not intended to be misleading, but he has said the law provides that all efforts must be made to sustain life outside the womb. I accept that and the Constitution is crystal clear on this point, which no one disputes. The problem I have relates to a foetus that is potentially viable outside the womb and that could be destroyed prior to induction or birth. That is the issue. The Minister has said on several occasions - he has clarified the point - that after the birth every effort must be made. The Constitution is crystal clear on that point, but the issue I want to have clarified is what is the status of the foetus prior to birth. The Minister said on Committee Stage that the doctor or physician could not employ any procedure that could damage the viability of that foetus outside the womb while it was in the womb. Will he clarify that is the case and point to exactly where that is provided for in the legislation? I do not see it, which is why I have tabled the amendment.
I am disappointed by what the Minister said. It seems that no amendments except those tabled by the Government parties will be accepted. We are all here with goodwill trying to make the best that we can of the Bill. I, too, am concerned about how we sustain the life of the unborn child in the womb and ensure the foetus is not damaged by any procedure. We are not going to be in every labour ward or whatever kind of ward these services will be delivered in; neither will the Minister. That may sound crude, but I have only been in the wards where the joyful births of my own family have taken place, thank God, on eight occasions. It is a wonderful place to be, but this is a completely different situation. We do not know about it and want to have the strongest possible safeguards. That is why we have tabled these amendments and hope some of them will be accepted in good faith.
I am not sure I understand this issue properly. If in the situation envisaged in section 9 there has been a joint agreement or certification by a psychiatrist and an obstetrician that there will be a medical procedure to terminate the pregnancy to avoid the risk of suicide as a last resort and the gestation of the baby is 11 or 12 weeks at that stage, it certainly does not have any chance of survival, given what doctors have told me. Therefore, is there not a presumption of recklessness towards the survival of the baby at that stage in this procedure? As in the case of a road traffic accident, if one is driving so carelessly and recklessly that one kills somebody, it is tantamount to murder or manslaughter. Am I missing something here? Will the Minister clarify the matter for me?
I reiterate what I have said. The Bill is very clear. It is unlawful to intentionally destroy unborn human life, but it is not unlawful to terminate a pregnancy where this is the only course of action open to the clinicians to avert the real and substantial risk to the life, as opposed to the health, of the woman. That is what the Supreme Court judgment states and I have made it quite clear that is included in the Bill. To do otherwise would mean that a medical practitioner would be in breach of the proposed legislation and subject to its penalties.
I can understand now the repugnant dilemma about which the psychiatrists and obstetricians were talking.
Amendment put and declared lost.
I move amendment No 15:
In page 6, line 8, after “treatment” to insert the following:
“where the medical treatment employed shall not impede all efforts to sustain the life of the unborn which is potentially viable outside the womb”.
Amendment put and declared lost.
I move amendment No 15a:
In page 6, line 27, to delete “the medical” and substitute “a medical”.
This is a technical amendment.
Amendment agreed to.
I move amdendment No. 16:
In page 6, between lines 27 and 28, to insert the following:
“ “rape” means sexual intercourse with a woman who does not consent and, at the time, the man either knows that she does not consent or is reckless as to whether or not she consents;”.
Amendment put and declared lost.
Amendments Nos. 17, 38, 39, 50 to 52, inclusive, 63, 66, 67, 107, 111 and 112 are related and may be discussed together. Amendment No. 52 is an alternate to amendment No. 51.
I move amendment No. 17:
In page 6, to delete lines 28 to 31.
Amendments Nos. 17, 38, 51, 66 and 111 amend texts on the definition of “the reasonable opinion” referred to in sections 7 to 9, inclusive, and 13. The definition is intended to place a duty on certifying medical practitioners to preserve the life of the unborn as far as is practicable in a situation where a medical practitioner or practitioners is or are making a decision about whether there is a real and substantial risk to the life of the woman. Given the requirements set out in Article 40.3.3o, medical practitioners must make reference to the life of the unborn in making such decisions. I am proposing these amendments for the purposes of clarity. Including the definition of “reasonable opinion” in each section concerned means that one does not have to refer back to the definitions section for a full understanding of what it means and the statutory intent. I commend the amendments to the House.
I have several amendments in this grouping. There are many qualifications in the Bill which essentially embed mistrust in the clinical judgment and good faith of doctors. These are an unnecessary misplaced concession to those who are opposed to abortion in any circumstance in what should be a trust in doctors. To use a term the Minister used frequently on Committee State, these changes are entirely superfluous and there is no need for them. They are simply a concession to certain people who want to hold back and frustrate the purpose of this legislation which is to allow for a pregnancy to be terminated where there is a threat to the life of the woman. The term “in good faith” implies that if a doctor acted in any other way, other than in good faith, he or she would be struck off. They have to act in good faith; that is their professional obligation. Why does it need to be included in the Bill? It is a form of organised distrust embedded in the Bill to assuage a certain side in this debate. That is why our amendments propose to delete this unnecessary term.
The Minister’s amendments are significant and, clearly, are to deal with a political problem, not with the substantive issue the Bill is supposed to be dealing with, namely, to allow for terminations where women's lives are at risk. In the original draft of the Bill the definition of “reasonable opinion” made reference to that opinion having to have due regard to the need to preserve the unborn human life as far as practicable as required by the Constitution. The Minister has deleted that reference and included it in the key sections which deal with granting women the right that they should have, namely, to have pregnancies terminated when their lives are threatened. This is not needed and it is gratuitous to insert it there. Worse than this, it is likely to lead to greater hesitation on the part of doctors where, instead of simply making the judgment that a woman’s life is at risk, they must look over their shoulder to qualify that assessment in case it infringes on the rights of the unborn human life when that right is already clearly established. That is dangerous for women and it is a political concession on the part of the Minister. If it is not, will he explain why he has put it in when it is already included in the earlier definitions and already established, constitutionally and legally? Why did it need to be taken out of the definitions section and inserted in the individual sections, if it was not a political concession which could have damaging consequences for protecting the lives of women?
We have had discussions in the past about negligence on the part of medical professionals. We have had all-party agreement on the issue of symphysiotomy, for example. I support this legislation, but there is an obligation to ensure “in good faith” and “reasonable opinion” are defined to the extent that medical professionals whom we trust every day understand it. The Minister’s amendments go in line with mine. To ensure the legislation is supportive of the principles outlined in Article 40.3.3o and interpreted in the X case, nothing more and nothing less, it must be clearly defined in legislation that there is an obligation to have a two patient strategy.
I know some argue that the Minister’s amendments have been brought forward for political purposes. We should try to rise above that and point out that this will place obligations on clinicians, but obligations we would expect clinicians to place on themselves, nothing more, nothing less.
I support the Minister's amendments. I have also supported amendments - one of which will be coming up for a vote immediately after this - which seek to provide greater clarity and give reassurance to an opposing view or outlook on the legislation. I do not think it is about satisfying anything political. It is about using the opportunities that may present in the course of the final address of the Bill to provide clarity and give reassurance across the board societally. The reaffirmations in respect of good faith and the commitment to preserve the unborn human life as far as practicable are important and do not in any way impact on the scope and intent of the Bill. For me, they are included, but I do not have any issue whatsoever with restating them, as is happening in this series of amendments from the Minister. For that reason, I will support them.
It is very clear. Do we define "reasonable opinion" in section 2 which deals with interpretations, or do we instead define it in each section? There is absolutely no issue with this, other than the fact that many people are inclined to read the Bill section by section without reference to what is included at the front of the Bill and without reference to other sections. That may seem strange to some legislators here, but it is certainly not an unusual phenomenon for others. It does not change the substance of the Bill, but it does emphasise the need to preserve unborn human life as far as is practicable because the Title of the Bill includes the words "protection of life in pregnancy". That includes the life of the woman and the life of the unborn.
I am not clear on what "as far as practicable" means in the various situations that could arise.
It is a well accepted legal term.
This is a situation involving a clinician, not a legal one.
It is a well accepted legal term and is well understood.
It is not clear to me.
That is fine. The Deputy is neither a lawyer nor a doctor.
That is true, but I am a citizen.
Amendment put and declared carried.
Amendments Nos. 18 and 19 not moved.
I move amendment No. 20:
In page 7, to delete line 8.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 21:
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;”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
When the Ceann Comhairle was in the Chair, he was asking those who had proposed amendments to propose them and-----
That is when they are pressing an amendment. I was just asking the question, "That the words proposed to be deleted stand." They are proposing that words be deleted, which is why the Government side is voting "Yes" and the Opposition is voting "No".
There are various amendments on the revised list. I am not sure if it corresponds with the Chair's version. I take it that when they were dealt with previously, they were formally moved.
That is correct. Amendments Nos. 22, 27, 32, 34, 35, 37, 40, 41, 47, 49, 53, 54, 59, 61, 64, 65, 68, 85, 108, 110, 113 and 129 are related and may be discussed together.
I move amendment No. 22:
In page 7, between lines 12 and 13, to insert the following:
“ “viable”, in relation to a pregnancy, means a foetus or embryo that is, or would be expected to be, capable of surviving independently outside the womb by reason of its gestational age;”.
I would like to speak to amendments No. 22 and 85. They would make it an offence for an abortion to be carried out under sections 7 to 9, inclusive, of the Bill in situations where the unborn child is viable and where it is possible for labour to be induced and the life of the unborn to be saved. This would simply reinforce and enshrine in the legislation what the Government has stated to be the constitutional position that once an unborn child reaches the point of viability, there is a legal onus on doctors to preserve the life of the unborn. This view that this should be enshrined in the legislation is substantiated by the most eminent constitutional lawyers in the State, Mr. Hogan and Mr. Whyte, in the fourth edition of J. M. Kelly: The Irish Constitution. They state the following:
Though none of the judges in the Supreme Court adverted to this point, it cannot be imagined that the ruling in X would permit abortion at any stage in pregnancy, no matter how late. Clearly if the foetus had developed to the point where it was or would soon be viable outside the womb, it would be possible to vindicate both the life of the mother and that of the foetus by inducing labour or performing a caesarean section, and it is disingenuous to suggest that X permits an abortion at that point.
If this is already stated Government policy and what the Government believes, and if leading constitutional academics agree, I am simply asking that we expressly state it in the legislation. The wording I have proposed is virtually identical to that presented to the Joint Committee on Health and Children by Dr. Simon Mills. On the whole, it is fair to say that Dr. Mills has proposed an abortion regime which would be considerably more liberal than that provided for in the Bill or, indeed, Article 40.3.3°. However, he felt that a clear and unambiguous term limit ought to be incorporated into the Bill. The amendment would compel the Minister for Health to seek medical advice on the gestational stage that can be considered to be the point of viability for all unborn human life. The amendment reflects the fact that the point of viability can change over time and has reduced steadily in recent decades due to advances in medical science. I hope that continues. I raised the issue informally with the Minister prior to Report Stage and I received a short response. The point argued by, presumably, the Attorney General is that the Government is reluctant to provide a specific referral pathway and prefers to leave it to doctors. There is a little too much of that in the legislation. I appreciate that doctors act in good faith but we should also give them guidance. Essentially, we should give legislative status to something that is already a constitutional reality. In a nutshell, at the point of viability the baby has to be saved. The amendment reflects the evolution of medical science.
Many of us have heard from concerned members of the public, including those who are in favour of a woman's choice when it comes to abortion, who are concerned about the idea that no limit is set out in the legislation. If we are providing a legislative framework, it is not good enough to legislate for certain aspects or interpretations of article 40.3.3° while ignoring others. This is what I am trying to achieve. I have acted in good faith. The amendment would allay the genuine concerns of many citizens. The vast majority of jurisdictions in which far more liberal abortion regimes are in place - the types of regimes I hope we never see in this country - nonetheless enforce gestational term limits for the carrying out of abortions. That is the minimum our citizens deserve and the minimum we should offer in terms of protection of the unborn.
Amendment No. 27 proposes to amend section 4 in respect of regulations. I have already expressed concern about the open ended nature of this provision for making regulations. It is unusual in legislation that the regulations proposed to be made are not specified in all instances. A number of speakers requested that the regulations be published in order to allow a full and thorough debate on the legislation. Unfortunately, that request was not acceded to.
Amendment No. 27 would insert a new paragraph (c) in section 4(1) to set gestational limits for the termination of pregnancy. Many people find it difficult to understand how the Government could propose a termination regime that does not set out gestational limits. There was limited public awareness of this issue until quite recently. The issue has to be addressed and, therefore, I propose that provision be made for the Minister to set term limits for termination. I am not being overly prescriptive because the thinking on this issue changes according to progress in medical science. In the UK, the limit was previously 28 weeks and has since been reduced to 24 weeks to reflect medical science.
This issue was raised at some length in the committee hearings by the Master of the Rotunda, Dr. Sam Coulter Smith. A number of speakers have quoted his comments. While his concerns were raised in a very clear and a stark way no serious attempt was made to address them. Dr. Coulter Smith suggested that premature delivery of a baby at 25 weeks gestation could lead to his or her death or result in significant developmental issues such as cerebral palsy. He pointed out that the outcome would be entirely iatrogenic, in other words, a result of the treatment provided. He raised the question of the responsibility of those clinicians who agreed to be involved in this process. What is the responsibility of clinicians who carry out a treatment that results in significant disability to the baby? This was a serious concern for Dr. Coulter Smith and his colleagues. The significant ethical dilemma and legal questions that have been raised by people working at the coalface have not been addressed satisfactorily by the Minister for Health. I call on him to set out the position on the ethical dilemmas that have been identified and the legal situation as regards clinicians who participate in a process having that outcome. People working in the field, and others, are entitled to a response.
When this issue was raised previously, reference was made to legal difficulties because the right to a termination in the case of a threat of suicide arises from a constitutional provision. That is one view or reading of the situation but Professor Gerry Whyte from the law school in Trinity College Dublin has outlined his very different understanding of the situation, which is worth rehearsing given Professor Whyte's experience in this area. He states:
Recently the view has been expressed that it may not be constitutionally possible for the Oireachtas to prescribe time limits on the availability of abortions under the proposed Protection of Life during Pregnancy Bill 2013. In my opinion, this view is at least questionable. In enacting this legislation, the Oireachtas has to ensure that it complies with the terms of Article 40.3.3 as interpreted by the Supreme Court in the X case. In that case, the Supreme Court did not advert to the issue of any time limit on the availability of abortion necessary to avert a real and substantial risk to the life of the mother and this led some commentators to suggest that X was authority for the proposition that an abortion to save the life of the mother could be obtained at any point during the pregnancy. However in deciding the principle of law established by a court decision, one has to take account of the material facts of the particular case. In my opinion, one of the material facts of the X case was that, by the time the Supreme Court handed down its decision, Ms. X was, at most, only twelve or thirteen weeks pregnant and so it was clearly not possible to attempt to save the life of the foetus as well as the life of the mother. Consequently in my opinion, 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, I would consider 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 I am correct in this, then it would seem entirely appropriate for the Oireachtas, if it saw fit, to legislate for time limits indicating at what point in a pregnancy it could be deemed practicable to save both lives.
I want the Minister to respond to those serious concerns that have been raised not just by Members but by two very eminent people in the medical and legal fields. Despite the fact that they were raised at the committee hearings and on Committee Stage, they have not been satisfactorily addressed.
While I am not saying that this legislation allows for abortion up to 39 weeks, it does allow for abortion up to the forced premature delivery of an unborn child. A child is alive and kicking in the womb at 21 weeks and would have legal protection in liberal abortion regimes, but it will not have legal protection in this regime. Whatever is said about the debate and whatever majority favours a particular view on this issue, when it comes to the issue of late-term abortions, a large section of society finds that issue extremely difficult. I have received a large number of e-mails from people who are pro-choice and who want legislation on the substantive issue of the X case, but who find it abhorrent that we would countenance legislating for the abortion of a foetus at 21 or 22 weeks. It is only the maximalist views that are calling for this. Most of Irish society does not call for it. It is important that when we discuss legislation, we discuss exactly what we are dealing with and whom it will affect. We are dealing with a 21-week-old baby who weighs 0.75 pounds, is ten and a half inches long and who is delivering kicks and nudges in the mother's womb. This child has hand and startle reflexes, footprints and fingerprints and a sleeping pattern that reflects the mother's activity, and can hear what is happening in the outside world. I am not saying this to create emotion, but it would be very wrong for us to legislate without talking about the exact details of what will happen and whom it will affect. There should be no taboo with regard to pointing out the effects of this legislation. All of us should be able to talk openly about its effects. We have been told that this is never really going to happen, but if we legislate, human behaviour will fill the space of that legislation. This has happened in other countries.
I am shocked by the appalling vista that this legislation opens up the possibility of disabling a pre-term child at the cusp of viability. I imagine this issue is very difficult for everybody. Longitudinal studies conducted on pre-term children have assessed the effects of their pre-term birth after two and a half years. The studies indicate that 50% of these children had no disabilities, 25% had some level of disability and 25% had a severe disability. The rates of disability of these children were assessed again at six and a half years. Twenty-two percent had a severe disability, such as inability to walk caused by cerebral palsy, very low cognitive ability, blindness or deafness. A further 24% were moderately disabled with cerebral palsy but were able to walk, had an IQ in the special needs range or had less severe problems with hearing and vision. Milder problems, such as the need for glasses or low cognitive scores, were also shown in 34% of children. It would be wrong for us to debate this issue and completely blank out that potential outcome of the legislation.
I am told this legislation will only allow this to happen in a situation in which the woman is going to commit suicide and therefore the child would be lost anyway. However, that is not what the legislation provides. It allows for a termination leading to disability on the basis of a psychiatric prediction with a 3% accuracy level. There is a clear and undisputed link with regard to late-term abortions and damage to the mental health of the mother. We heard from Mrs. Justice Catherine McGuinness that the absence of time limits was due to the difficulty in qualifying constitutional rights. She said, however, that it was important to bear in mind that the X case had not involved an advanced pregnancy and, therefore, the question of term limits was not an issue decided by the court. Mrs. Justice McGuinness was of the view that it might be possible to build term limits into legislation and to see how the courts would deal with the matter.
Given the seriousness of this issue and given the broad swathe of support for at least attempting to establish limits, I ask the Minister to support amendment No. 129, which seeks to introduce a 12-week term limit.
I support the sentiments of the previous speakers in regard to this issue. What we have in effect is a legislative juggernaut driving through this House. There appears to be a serious unwillingness on the part of the Minister to accept any reasonable amendments. There is no doubt that this is one area in which the Minister has the opportunity to accept reasonable amendments to the legislation. While this amendment will not deal with the misgivings and concerns of many in the House, its acceptance would nevertheless go some distance towards alleviating some of the concerns of the public.
The prospect of our providing for late-term abortions by writing them into primary legislation in the House is a hideous thought that bodes ill for the generations to come. I will not repeat the sentiments expressed by Deputy Tóibín and the Minister of State, Deputy Creighton, but I urge the Minister to give serious consideration to the possibility of meeting the request of the House to put a time limit on the termination regime envisaged under this legislation.
I would like to thank Deputies Shortall, Tóibín, Creighton and Kirk for putting forward these meaningful amendments and seconding them. We must make an effort to see the meaningfulness of what are otherwise just remote sentences, statistics or hypotheses, because this issue will affect real lives. As Deputy Kirk said, the vista of late-term abortion and the death, destruction or maiming of a foetus is appalling.
It is equally repugnant, however, if such takes place in the early stages of pregnancy - at 12 weeks, for example, as in the X case. That is just as repugnant.
Deputy Shortall made an important point about revisiting the legal structure or architecture, as the Minister for Justice and Equality calls it. We do not want such an architecture if it is a repugnant architecture for a repugnant erosion of the values of life, the values of society and the values within families. We should remember that the child, whether it is at 12 weeks gestation or 20 weeks, is a child of a father and a mother, a potential brother or sister, a potential niece or nephew, and has a 51% chance of being a girl and, in due course, a woman, rather than a boy. We have to recognise the tangible connection of flesh and blood that we are dealing with here.
The issue Deputy Shortall is seeking to address is very important and these are extremely worthy amendments. The problem, however, is that they are part of the architecture of the overall hull of a ship which, as I have said, has a deep fault line. No matter how many lifeboats or life-jackets or light beacons we seek to apply, the hull of the ship remains cracked and flawed and always capable of falling asunder. We must be very careful of what we are about here. We might well be cement-setting across Irish society and all 166 of us in this Dáil will have our initials in that cement. If it is the wrong cement, our authorship will be there for a long time in the form of each individual's initials. I do not want mine there.
I support Deputy Róisín Shortall's comments regarding term limits. Provision in that regard is the very minimum that is required in terms of amending the legislation. I noted the Minister's response to my comments regarding late-term abortions. The difficulty, however, is that the legislation does provide for early inductions and early terminations based on induction. Deputy Peadar Tóibín outlined precisely the implications of this. They were also clearly articulated by Dr. Sam Coulter-Smith at the Oireachtas committee hearings and commented on by Mrs. Justice Catherine McGuinness. In fact, the latter advised that the Oireachtas should include term limits in the legislation. Deputy Shortall today pointed to a similar recommendation from another leading legal opinion in this country. I am confident in saying there is unanimity across the House on the issue of late-term abortions. Nobody wants to see early inductions happening which see babies born with profound disabilities, with all the huge implications that would carry.
I urge the Minister, at this 11th hour, to accede to the amendments put forward by Deputy Shortall. In her contribution, the Deputy referred to the issue of regulations. The Taoiseach promised last December - he was in the Chamber when I mentioned it last night - that the regulations would be published in tandem with the legislation. That has not happened. Instead the Minister has been given a blank cheque in regard to the regulations he can introduce on foot of the enactment of this legislation. A whole swathe of measures could potentially be introduced in this manner. I accept the Minister's word when he says he has no intention of bringing forward any significant regulations. The difficulty, however, is that he will not be Minister for the lifetime of the legislation. There will be others after him and he is providing those future Ministers with a blank cheque. We are going down a very dangerous avenue in this regard.
My amendment No. 32 arises from committee proceedings. I will not go into the detail of my Committee Stage amendment other than to say that I have heard a number of commentators and Oireachtas Members argue that in legislating for terminations of pregnancy we must include provision for suicide, in accordance with the X case judgment. The Government has taken a policy decision on this issue, as it is well within its rights to do. However, it is not right to say that we must legislate for suicide because we are legislating in this area. To demolish that particular argument, I have put forward amendment No. 32, which allows for regulations to be introduced specifically to deal with terminations in cases of medical emergency or where there is a medical threat to the life of the mother at any stage during her pregnancy. The provision includes the caveat that only regulations which are founded on current evidence-based medical treatments may be introduced, which means of course that suicide cannot be included. I do not want people leaving the House this evening and saying we had to legislate for suicide, that there was no choice. My amendment sets out a vehicle to provide the clarity that is required without having to deal with the suicide provision. As I said, the Government is within its rights to have taken a particular policy decision on the suicide issue, but it cannot be justified on the basis that to do so was unavoidable. It is not a valid argument, as my amendment shows.
I hope the Minister will, at the very least, accept the amendments put forward by Deputy Shortall.
This group of amendments includes Nos. 35, 37, 64, 108 and 110 in my name. The purpose of my proposals is to include in the legislation the full test in the X case judgment by adding the words "which may be neither immediate or inevitable" in the various sections. The objective here is to clarify for clinicians and for women the exact position as set out in the X case decision. I do not understand why the Minister has not included this particular qualification in the legislation. He has said time and again that the Bill is implementing the judgment in the X case. What he has done, however, is include some but not all of the test set out in that case.
The report of the expert group on abortion, in section 6.2, Test to be Applied, states:
The Supreme Court in the X case held that the correct test was that a termination of pregnancy was permissible if it was established as a matter of probability that:
1) there is a real and substantial risk to the life of the mother; and
2) this risk can only be averted by the termination of her pregnancy.
The section goes on to say: "It is not necessary for medical practitioners to be of the opinion that the risk to the woman's life is inevitable or immediate." That is the test set out in the X case, as supported by the expert group. The Minister tells us he is implementing the X case decision and the recommendations of the expert group, yet he has left out this very important part of the test.
It is absolutely necessary to have clarity for clinicians and women in this situation. It is essential that this group of amendments be accepted by the Minister. It is more important that they be accepted and included in the legislation because the Minister and the Government have refused to deal with the question of inevitable miscarriage. The amendments would clarify the position for clinicians and women. The current position which will obtain after the passage of the legislation is that a medical condition due to pregnancy which is not life-threatening such as inevitable miscarriage must be allowed to become life-threatening for the necessary termination of pregnancy to be legal. That will continue to be the case after the legislation is passed, if it is not amended. The amendments I have tabled in this group are not as adequate as a provision dealing with inevitable miscarriage would be, but they would go some way towards clarifying the position for physicians and women. I do not understand why the Minister is refusing to include the full X case test in the legislation. I can only assume it is a question of political pandering to Fine Gael backbenchers.
There is no pandering here.
I have never endured so much mental anguish and torment as I have over this decision. The past six months have been very difficult as I debated the decision I must make. I was selected as a member of the Oireachtas Joint Committee on Health and Children. I am opposed to abortion. I met the Minister for Health, Deputy James Reilly, on several occasions and spent hours discussing my concerns with him. I am satisfied he is not introducing abortion on demand. He is putting in place safeguards to deal with the legal vacuum created by the Supreme Court's judgment 21 years ago. In the Dáil I have called for further safeguards to prevent the law from being abused. Specifically, I have called for the identity of medical professionals certifying that a termination of pregnancy is necessary to be recorded. I have also called for reports with detailed statistics for terminations to be laid before the Houses of the Oireachtas annually. I am reassured that the legislation was amended on Committee Stage to include both of these amendments. I was reassured when the Minister tabled amendments this week to provide further clarity for doctors in assessing a woman where the foetus is at, or close to, the point of viability in order that they will be mindful of their responsibilities to both patients, the mother and the baby.
As someone who is opposed to abortion, this has been a difficult personal journey. The legislation strikes the right balance. It protects the life of the woman, while respecting the life of the unborn. It contains significant requirements for transparency and safeguards to prevent the law from being abused and leading to abortion on demand. For this reason, I will vote in favour of the Protection of Life During Pregnancy Bill in the Dáil.
I will speak to a number of the amendments in this grouping. Last night I mentioned a minor worry I had about the absence of the words "imminent nor inevitable" which were part of the original Supreme Court judgment. To me, this is the critical point of the legislation because it will have most application in practice. I am talking particularly about women with pre-existing medical conditions, or those who develop such medical conditions during pregnancy, such that the pregnancy poses a threat to the life of the mother. In the current situation many women, after consulting doctors, are given information that leads them to travel to England. Many of the women concerned are very sick and some are undergoing cancer treatment. My hope for the legislation is that the practice will stop because that is the intent of the legislation. The point of it is to give effect to the Supreme Court judgment in the X case. The Minister has said this is the intent of the legislation and clearly believes it is. If so, it should be included in it to provide clarity. Its whole purpose is to provide clarity. Why would we miss this opportunity?
During the hearings it was clear to me from a presentation made by representatives of the Irish College of General Practitioners that their opinion was that the legislation would apply only in emergencies. If there is a lack of clarity, the practice of women having to travel to England will continue or, worse, doctors will procrastinate until a threat becomes imminent and may be irreversible. We should grasp the opportunity presented by the legislation to include the words in the Supreme Court judgment that the threat to life does not have to be imminent or inevitable. If we do not include them, I ask the Minister to include them in guidelines because the legislation is of real importance to women in this situation. There will be very few cases of suicide and I hope also emergencies will be few in number. Including these words in the legislation might reduce the number of emergencies.
Do I have to move the amendment in my name?
No; each amendment will be moved when we get to it.
One aspect of the case of Savita Halappanavar was doubt and hesitation about at what point there was a risk to life. If this legislation has a purpose, it is to clarify the position and remove the doubt or anything that contributes to hesitation on the part of doctors to intervene decisively to save a woman's life as soon as there is a real and substantial risk to her life. Part of the Supreme Court test which has been deliberately included to clarify the point in determining what is a real and substantial risk is that the risk has to be real and substantial; it does not have to be immediate or inevitable. That is a very important clarification which can give confidence to a doctor to intervene where he or she believes there is a risk.
When we put forward this amendment on Committee Stage, the Minister used the word "superfluous". I point out that his previous amendment inserts in each individual section what was included in the definitions section, namely, the need to balance the right to a lawful termination in a situation where there is a real and substantial risk with a reminder to the doctor. The Minister has said we need to include it in every section because the doctor may not read the definitions section. It is a reminder to say he or she must protect the right to life of the unborn before he or she makes that intervention to protect the life of the woman. That, it appears, is not superfluous but our amendments are.
In considering how to vote on the Bill, as pro-choice Deputies, we want to see movement.
We wanted to vote for the Bill but this is another example, if the amendments are not accepted, of how all of the concessions made during the course of the debate have been to one side, which wants to restrict as much as possible the intent of this Bill which is to protect the life of women. When we table amendments which seek to clarify for and give certainty to doctors on when and how they can intervene to the protect the life of a women, the Minister states they are superfluous. The Minister refuses to accept such amendments from us and shoots them down. That is an indication of a fudge which is problematic and can lead to the sort of hesitation which can be decisive in the case of women's lives when they are at risk. Maybe the Minister will prove me wrong and accept these amendments which are entirely reasonable and accord with the Supreme Court judgment.
In response to the issue raised by Deputy Naughten on the definition of a term at which an intervention should or could take place, I am not entirely certain as to what is indicated here. It would appear that once a term is imposed, there is a time at which the life of the woman becomes the issue and that her life is deemed to be no longer a major issue. The Supreme Court had to deal with the situation whereby there was an equal right to life of both parties and when one introduces a situation where one party or the other gets a superior right to life, surely that is in breach of the constitutional amendment, Article 40.3.3°, wherein both the unborn and the mother have an equal right to life.
That is the nub of one of the matters that we have been discussing for quite some considerable time. We have heard references to the Supreme Court decision to the effect that it was wrong on the basis that it did not hear all of the evidence but the court decision had to be made on the basis of the evidence presented to it at the time. The problem then is this: if the presumption is that both the unborn and the mother have an equal right to life - that was decided by the people - then introducing anything else at that stage tilts the balance in favour of one or the other. The court decided how that would be. The court's decision is the final decision and it cannot be changed. It has been suggested by Members, whose views I fully respect on this subject, that we should hold another referendum and look at this matter again. The problem with this is that it has been looked at. The people looked at it as well and the people made a decision. The people made a decision on suicide as well and they made that decision, not once but twice. They made it twice - a clearcut decision, no doubt about it. I am neither a lawyer nor a medical professional, and I have no competence in the area at all, but it would appear, at least, to my mind, that once one intervenes and sets a date by which a termination can take place - or, in the reverse of that argument, cannot take place - then that shifts the balance in a way with which the Supreme Court did not agree, and we must accept that.
Whether we like it or not, the decision of the people is paramount. It was already decided in a referendum. Subsequently, the Supreme Court interpreted the decision of the people and made it quite clear. In the aftermath, we have seen numerous persons on all sides of the argument suggest what if, maybe in different circumstances, something had happened and, maybe, if other information had been made available. I do not accept that. Courts make decisions and the Supreme Court makes the supreme decision.
Terminations in every other jurisdiction for our patients are based on the 100% destruction of the foetus whereas in the limited cases that this legislation will apply there is a completely different ethos. That should be the basis of how we discuss this legislation during the course of the night. This is the only contribution I will make on this.
The ethos of the Bill is about the early delivery of the baby from any point up to 22 to 23 weeks. It is not about the destruction at all. That means for all of the second half of the pregnancy there is the possibility that we can successfully deliver the baby and give him or her the full care that he or she requires, and that is where the pregnancy is viable.
In all other cases of very early pregnancy that are being talked about, some Members have mentioned here pregnancies of 12 weeks and under. Young girls are buying RU-486 on the Internet to terminate their pregnancies with no care from doctors. We are not involved, we do not know what is going on. We only see the complications.
When I was a medical student, one incident I always remember is that of the late Ms Ann Lovett, a young girl who delivered her baby in Granard, County Longford. She died and the baby died. It was her ignorance and it was the arrogance of others who decided that they were not going to be the guardians of her wound that contributed to what happened there.
Hear, hear.
Even though my ethos is pro-life, we need to focus ourselves a little more for the rest of the course of this debate on what we are doing. The Members are wandering all over the place in this debate. I was wondering if there were 120 general practitioners up in the Visitors Gallery, would they be able to work out what we are legislating for here tonight. We need to be far more clear on the way this debate is running.
It would be quite difficult to explain to a patient, unless one was deeply involved in this legislation, what this legislation means. In what the Minister is doing, first and foremost, the focus is to save the life of the baby and the mother, and it is all about the early delivery. It is a completely different ethos to some of the red herrings I have seen thrown into this debate. I hope we refocus for the rest of the night so that we can understand where this is coming from.
I refer to amendments Nos. 22 and 27. The kernel of the issue is here. There are significant concerns about it. Amendment No. 22 seeks to insert:
" "viable", in relation to a pregnancy, means a foetus or embryo that is, or would be expected to be, capable of surviving independently outside the womb by reason of its gestational age;".
On amendment No. 27, on termination, there is no time limit at all. That is a retrograde step.
As I stated previously, I want to point out to the Minister for Health that a notice by a Ms Jane Murphy has been served in the High Court on the Taoiseach and on the Minister, Deputy Reilly, as plaintiffs. While it was heard and was disallowed for the time being, the right to appeal was granted. The motion sought injunctions preventing the respondents usurping the will of the people. Members mentioned the referenda, how the people decided and what happened on those occasions. We believe that the people are sovereign in this area and they should have been consulted again, and a referendum should have been held.
The Ministers are acting here, as the Taoiseach and the Government are, in the knowledge that an action is being taken. Indeed, this morning the Minister, Deputy Varadkar, on national radio stated that the Bill should be sent to the Supreme Court. The Minister, Deputy Howlin, stated he was surprised with me and others in this action and his own colleague had stated earlier that it should be referred by the President to the Supreme Court.
I refer to amendments Nos. 49 and 61. On Second Stage, I spoke of my concerns on section 9, while supporting section 8. Following my speech on Second Stage, I met the Taoiseach informally at a constituency function. He took the time genuinely to go through my concerns. In that regard, I appreciate and fully accept his bona fides, and those of the Minister, in terms of the tightness of this legislation. However, I expressed on Second Stage my concern about the looseness of some of the language and that those who do not share their bona fides may use this for purposes which the Minister may not intend.
In my amendments, Nos. 49 and 61, where it is stated in sections 8(1) and 9(1) that an unborn life is ended, I propose a change from "is ended" to "may be ended", so that a termination does not become the default option by virtue of language and words used and therefore become the expressed default for treatment in the cases. This is a minor change and I ask the Minister to consider it. Deputy Naughten referred to the same point when he said the intentions of those in the Chamber tonight might be completely different from how the law will be interpreted in 15 or 20 years' time. We must ensure tonight and subsequently in the Seanad that we tighten the language so that the intentions of those who are proposing this Bill, and using those intentions to give assurances to those opposing sections of the Bill, will remain clear.
The Bill deals with the equal right to life of the woman. I have set out my own position in that I do not think the Bill goes far enough, but we have to deal with the parameters in front of us. This Bill is supposed to provide legal clarity. The amendments tabled by myself and others proposing to include the words "neither immediate nor inevitable" give that clarity which should be implicit in the legislation and clear for all to see. Deputy Liam Twomey wondered whether, if the Visitors Gallery was full of doctors, would they understand what we are talking about. If the phrase "neither immediate nor inevitable" was included, I think it would give some very important clarity, particularly when problems that turn a risk to health into a risk to life can be of very sudden onset. This was illustrated very recently and very unfortunately. The quite punitive penalties of 14 years' imprisonment or an undetermined fine must be examined in the context of this terminology. I certainly do not want to see clinicians erring on the side of caution where there would be a risk to life in order to ensure that there is a certainty of avoiding prosecution. Our proposals would provide much more safety for the woman and it would give some certainty and clarity to clinicians. I urge the Minister to accept those amendments.
There is genuine concern and unease among Members of this House and members of the public about the issue of late-term abortion or termination. There is concern that this could lead to death of the unborn or disability. The concern is that there is no term limit. I ask the Minister if the regulations have been received and when they will be published. Will they contain detail and content regarding late-term abortion and deal with the genuine concerns about this issue?
I support this group of amendments and, in particular, amendment No. 22, in the name of the Minister of State, Deputy Lucinda Creighton. This amendment proposes to strengthen the legislation by making it an offence for an abortion to be carried out under sections 7, 8 and 9 where the unborn child is viable. It reinforces the Government's intentions in this area so I do not see why there should be any difficulty or reluctance on the part of the Minister in accepting this amendment.
I will speak on amendments Nos. 22 and 27 and pursue a point raised by Deputy Calleary. There is much confusion among the public about gestational limits in the legislation. It is a very emotive issue. I ask the Minister to clarify the point. As I understand, the danger in providing for a gestational limit in the context of a woman whose life is threatened during pregnancy is that a situation is reached when the woman is informed she is past the point of rescue. I have listened to Deputy McGrath and Deputy Terence Flanagan. It is illogical to say that nothing will be done to save the woman's life. However, if the woman's life is sacrificed then so is the life of her unborn child. I ask the Minister to clarify that issue because this is about the treatment of women whose lives are in danger. If a gestational limit is introduced, be it ten weeks, 20 weeks or 30 weeks, a woman who is sick in her 11th week or 21st week or 31st week, in a manner that threatens her life, will be told she is past the point of rescue. That is a barbaric proposal to be included in legislation which deals with saving lives.
I also have some concerns about the definition of "viable" used in amendment No. 22. It refers to the capacity to survive independently outside the womb by reason of gestational age. If a woman is certified as entitled to a termination at 23 or 24 weeks, that child is viable but not independently viable outside the womb. We need to be careful about having an objective that is desirable but using a manner of expression that may result in our not achieving the objective. I want to tease out that point a little further.
I refer to sections 7, 8 and 9. In the context of amendment No. 49 and similar amendments, I ask both Ministers whether it is an inevitable consequence that an unborn child will die as a result of the certification. If it is not an inevitable consequence then surely these amendments make sense.
I will be brief to avoid repeating what I said on Second Stage. I wish to speak on my amendment, No. 59, which relates to gestational time limits. My amendment is in respect of a time limit under section 9, not where there is a medical emergency or a physical threat to the life of the mother but rather where a mother presents with suicidal ideation. The absence of gestational time limits raises the prospect of gravely troubling scenarios, with the possibility of devastating outcomes for both the mother and the child. One such scenario, which was raised by Deputy Peadar Tóibín on several occasions, is that of a termination of pregnancy - I emphasise that I am referring to terminations under section 9 only - at 24 or 25 weeks when the child is on the very cusp of viability. As Deputy Twomey correctly pointed out and as the Minister has said on several occasions, every pregnancy ends in a termination. In the vast majority of cases, that termination results in the birth of a healthy child. At 24 or 25 weeks the child may very well survive the termination, but if prematurely induced it is exposed to a variety of incurable conditions, possibly consigning it to a lifetime of disability and perhaps of living in an institution if the parents do not want the child.
Although many have argued against it, I welcome the fact that a gynaecologist will be on the three-member team that will decide whether to grant a termination under section 9. The presence of a gynaecologist may very well influence an extension of the pregnancy. However, the absence of a time limit is unacceptable in my view.
I also tabled amendments Nos. 47 and 54 on Committee Stage and I also discussed amendment No. 80 previously. They are straightforward and say every effort must be made to save the life of a child where viable. It is a statement of the obvious but it reaffirms the thrust of the legislation and Article 40.3.3°. However, I accept the Minister's comment that this is provided for under the legislation anyway and there is no need to make my amendments.
I am speaking in a personal capacity and not on behalf of my party. I find when we discuss amendments relating to viability and gestational terms and time limits that I would oppose the legislation if I thought for a moment that we had decided a baby at 34 weeks could be taken from the womb and destroyed. It is repugnant to me to even consider that but, more important, it is repugnant to the Constitution and the legislation before us. When we discuss this issue, as Deputy Twomey said, we should refer specifically to the legislation. If we talk about gestational limits, we are putting forward a situation where we are pitting the life of the woman against the life of the unborn. Clearly, that is what we will do because if we decide that a term limit of 20 or 22 weeks, the only time under the legislation or the Constitution that a termination can take place is in the event of there being a real and substantial risk to the life of the woman. That is the overriding issue at stake here and if we were not to intervene, the life of the woman would pass, as would the life of the unborn. If we move to debating whether the limit should be 18, 20, 22 or 24 weeks - let us get personal about this - what we are saying is if my wife is in an operating theatre and she is told they have to intervene to terminate the life of the child, they cannot intervene because she is gone beyond 24 weeks. That is what we would be providing for in the legislation. We would clearly be providing in the legislation that we cannot intervene to terminate the pregnancy because it would be in conflict with the legislation if we put in gestational periods. We need to be conscious of what we are trying to put forward in this legislation.
Outside the House, there are strong views on this but to raise issues that are not relevant to the Constitution and that are at variance with the Constitution and the X case judgment simply undermines what we are trying to do, which is to pass legislation that has one fundamental overriding principle: to save the life of the woman when there is a real and substantial risk and to make every effort to vindicate the life of the unborn. Once gestational periods are put in, one is pitting the life of the woman against the life of the child. That would be repugnant to me and to the Constitution. I make that point because many in my party have strong views on this issue but when one goes to the core of it, we are putting in legislation something that has been in place for the past 21 years but, more important, we are trying to save the life of the woman and, in doing so, we are making every effort to save the life of child. When we talk about viability and gestational terms limits, we are going down a dangerous road because we will force doctors to look a woman in the eye and say "We cannot intervene to save your life because the term limit under the legislation has been exceeded". I urge genuine caution in the discussion on this issue.
Hear, hear.
With regard to amendments Nos. 22 and 27, I would like to reiterate caution and trepidation regarding gestational time limits because of the pitfalls and trouble that could cause down the road. I would like to register my concern about that.
Deputy Kelleher put the point correctly. There is no answer to his point-----
Exactly.
-----because the plain meaning of a gestational limit must mean that the test of a real and substantial risk goes out the window after it is reached. How could the Deputy be wrong on that? It is manifestly against the intention of the legislation to introduce such limits. They would undermine the legislation and change the meaning, giving a right with one hand and taking it back with the other. The right would be given up to a particular gestational limit and taken away after the limit is reached. That is not acceptable to the Government.
I refer to the immediate and inevitable issue raised by Deputy Boyd Barrett. The Attorney General in the X case said that the test should be that the risk had to be real, immediate and inevitable and he lost that case. The Supreme Court said "No" and said there has to be a real and substantial risk. The court disagreed with the Attorney General that the risk had to be immediate or inevitable. We discussed obiter dictum with the Minister of State, Deputy Creighton. There is no necessity to put something like that, which does not apply, into the body of the legislation. That is why the Minister correctly used the word "superfluous". It is not necessary because the risk does not have to be immediate and inevitable. Even if one does not accept that, one is then entering into a situation where if those words are inserted in the legislation, they would have to be defined. One could not just say "immediate and inevitable". They would have to be included in the definitions section and doctors in a clinical environment would have to be told what constitutes something inevitable and what constitutes something immediate. We do not know what would arise in a clinical environment as to how precise the definitions should be. One cannot prescribe to doctors and the clinical world what precisely is immediate or inevitable because human life and the clinical environment, in particular, especially in the situations we are dealing with under this legislation, are not certain and doctors have to have the ability to act within their professional judgment to determine the question of risk. Everything is raised in good faith and I acknowledge this has been raised in good faith by the Deputy. However, I appeal to him to recognise that it is not necessary and potentially harmful to the legislation.
I call Deputy Tuffy, who has not contributed previously.
I understand the concerns of Deputies who have raised this issue and I have thought about it but I have read information about what happens in other countries. It has been stated they have time limits. While the UK or the Netherlands, for example, have time limits, they have much more liberal regimes than what is proposed under this legislation. Their time limits apply to the more liberal reasons for abortion. My understanding is the limit in the UK is 24 weeks but there is no limit if there is a risk to the life of the mother.
There is a little confusion about this because essentially what we are trying to do is to insert in the legislation something the Minister has told us is constitutional. It is not a question of trying to do something that in any sense contravenes the Constitution or of doing something additional. We are simply saying we recognise it is constitutional and, therefore, we feel it is necessary to insert it in the legislation. It is not about putting a time limit on any medical intervention to save the life of a woman. There might be a misinterpretation of the intention or the clear reading of the amendments that have been tabled. Rather, it puts a time limit on the destruction of the life of the unborn and a clear obligation and onus on the medical professional who intervenes to save the life of the unborn.
I have a document from the Minister's office that was sent to me yesterday. The second sentence reads "as currently drafted the Bill does prohibit the killing of a viable foetus and including a reference to viability is not necessary". The acceptance is there. The Bill does prohibit the killing of a viable foetus. What I have tried to do in my amendment is to define viability for the sake of clarity and enable the Minister to set it out in regulation, taking into account best medical practice and obliging the Minister to take all available advice to set out what that viability actually means. That is all we are asking him to do. The amendment does not for one second restrict or prohibit the capacity of a medical professional to intervene to save the life of the woman. It simply says that after a certain period when viability is reached, there is a clear legislative, not just constitutional, onus on that medical practitioner or practitioners to save the life of the unborn. That is all. It is simple. It is black and white.
Deputies Creed and Kelleher said that if we put a time limit on this we are saying to women that they have reached the point of no return with regard to treatment. That would be true if one erased all the medical evidence we heard at the oral hearings of the Oireachtas Joint Committee on Health and Children, where witnesses said there is psychiatric treatment, based on medical fact, that would treat individuals in this situation, that the treatment covered in the legislation will do more harm than good and that the prediction accuracy is at 3%.
I would like to clarify my position on my amendment No. 27. I absolutely welcome the provisions under sections 7 and 8 and, as far as I am concerned, there should be no question whatsoever of risking the life of the mother in the circumstances covered by sections 7 and 8.
The issue I have sought to address, which was raised at the committee hearings and on Committee Stage of the Bill and did not receive a satisfactory response, is that raised by the medical profession in respect of a woman who presents as being suicidal when the unborn is close to or just past the point of viability and where the doctor needs to make a call on the competing rights of the woman and the unborn. That poses a difficulty for the medical profession in a situation where there is no evidence to show that termination is a treatment for a person with suicidal ideation or intent and where there is a clear understanding on behalf of the doctor concerned that termination of a pregnancy in those circumstances, at that point of gestation, is highly likely to result in a significant disability for the child. I believe those legal and ethical issues which the medical profession raised have not been addressed. In those circumstances there are options for the doctor concerned to offer therapeutic treatment which has to be weighed up in terms of its ability to address the woman's suicidal ideation and which might also preserve the life of the unborn to a point when the risk of damage to that unborn child is minimised. That is the kind of very difficult legal and ethical call that doctors say is impossible for them to make without a gestational limit.
The Minister of State referred to Deputy Kelleher's intervention, in which he pointed out that one was giving a right and taking it away. He and the Minister of State are absolutely right about that. The Minister, however, is possibly guilty of doing the same thing himself in the way that he has framed this legislation. We have already made the point about the obstacles being put in the way of women's accessing abortion because of the onerous terms under which they can get it in cases of suicidal intent, requiring three doctors, three on a review panel and so on. That gives the right and takes it away. Nobody is going to avail of that. Nobody is going to go through that system, they are going to go to England.
This legislation could at least clarify the situation in cases such as the Savita case where clearly there was hesitation and uncertainty. That is the point of the Bill. We need to give that certainty. This Bill would achieve something if it achieved that. The Minister of State cites a difference of opinion in the Supreme Court in the discussion between the two judgments. I am not aware of the one to which he referred but he said it was a response to somebody else who believed-----
I do not know why the Minister of State is shaking his head. I will just repeat the point, the test that was put down in the Supreme Court was that the real and substantial risk did not have to be immediate or inevitable. That was put in to clarify what a real and substantial risk is. That is why it was said. It was to clarify the risk. It was necessary to clarify it because it was unclear and that is the point. Words are slippery. The Minister of State knows that as a lawyer and we need clarification - it is not funny.
The Deputy knows them.
As an English graduate I know words are slippery.
An English graduate.
As a lawyer the Minister of State knows they are slippery. That is why the clarification is necessary. That is the point. If there was clarity we would not have needed the legislation in the first place. This provides that clarity and that is why that clarity was in the test.
I strongly support the view of Deputies Creed and Kelleher and I disagree with the point of view currently being expressed. The Minister of State has already set it out quite clearly. This is a crucial part of what we are discussing at present. Let us pause for a moment and put ourselves in the position of a woman who is pregnant who has a crisis and whose life is in danger. If we follow the line of thought that has just been promulgated, and a time limit is introduced beyond which there can be no intervention to save her life, she will die. That is a fact.
Psychiatric therapy is available.
What about therapy?
I feel as strongly about this subject as anybody else in this House, with no disrespect to anybody. I respect my colleague, Deputy Creighton's views but she is wrong in this instance. The points already raised by three other speakers should be borne in mind, particularly because if we introduce an amendment that sets a limit beyond which no intervention can take place to save the life of the woman because of the viability of the unborn child, the woman will die.
Nobody is saying that.
The Supreme Court already made a decision on this. It came to the conclusion that on balance it had to make a decision and it made the decision given the evidence that was made available and what might be likely to happen in similar cases. That is always the case. The decision was right. I totally disagree with the people who have said again and again that the Supreme Court was wrong. Even some of the judges reviewed the situation in the aftermath. At the time the court made the decision on the basis of the evidence presented to it and had no option but to do that and it did the right thing. I appeal to the Members please to remember the consequences if we go wrong on this issue.
A woman, who could be the mother of other children, might well be condemned to death because we saw fit to put in place a provision which could dictate circumstances in that regard.
I support amendments Nos. 22, 25 and 27, in particular. I remind the Minister about the repugnant dilemma which the psychiatrists and obstetricians stated will arise where they will be obliged to deal with a woman who, in the context of section 9, is suicidal and who has been pregnant for fewer than 12 weeks, more than 12 weeks or up to 20 weeks. If the woman has been pregnant for fewer than 12 weeks, the outcome will be certain death for the baby. If she has been pregnant for approximately 20 weeks, the outcome will be almost certain injury if not destruction. These aspects are repugnant to the ideals and objectives of the medical profession as it is practised.
Gestational time limits should of course be brought into the equation if there is to be any proper and just application of what is a very unsatisfactory Bill. I invite the Taoiseach, the Ministers present, the Cabinet in general and all others involved to consider what Deputy Shortall said about the alternative put forward by Professor Gerry Whyte, who is a constitutional lawyer. In the context of what Deputy Durkan said, in the X case the gestational maturity of the baby that was lost through miscarriage rather than by means of abortion was 12 weeks.
That is irrelevant.
What we are discussing here are circumstances where there is a real and substantial risk to the life of the mother and that regardless of the stage the pregnancy has reached, she has the right to have her life saved. That is the key point.
That is it.
We do not want to compromise in this regard but that is what the amendments seek to do. If accepted, they would lead to a compromise being made in the context of saving the life of the mother. It must be remembered that the obligation in both the legislation and the Constitution is to the effect that every effort must be made to save the life of the unborn as well. Unlike other countries, we have an article in our Constitution, namely, Article 40.3.3o, which dictates that the life of the unborn must be saved. If we begin to compromise, however, and state that any risk of death to the mother must be set aside at some point in the pregnancy, we would then, in effect, be compromising her right to life.
Correct.
Hear, hear.
I was referring to section 9, not section 7.
(Interruptions).
Exactly.
That is the point.
I would like-----
That is not the same, it is entirely different.
Do I have the floor?
It is the point.
I thank everyone who contributed to the debate on this matter and to the wider debate on the Bill. We are dealing with a large group of amendments and, for the purposes of addressing them in a more precise way, I propose to divide them into smaller groups. In that context, amendments Nos. 22, 27, 32, 41, 47, 49, 53, 54, 59, 61, 85 and 129 seek to strengthen the Bill's provisions in respect of the right to life of the unborn. I am aware that concerns have been raised around the need to insert a gestation limit in respect of carrying out the medical procedures covered by the Bill. In this regard, it is important to stress again that the proposed legislation only covers situations where there is a real and substantial risk to the life, as distinct from the health, of a pregnant woman which may only be averted by termination of pregnancy. To be clear, it will only allow a pregnancy to be terminated in circumstances where it is expected that the woman will otherwise die. It has been suggested that the legislation should include a clear provision to that effect and also an explicit reference to viability. I reassure all Deputies that, as currently drafted, the Bill prohibits the killing of a viable foetus.
As previously stated, the Bill makes reference to a medical practitioner's reasonable opinion. This places a statutory duty on each medical practitioner required to form such an opinion for the purpose of legislation to have regard to the need to preserve unborn human life as far as practicable. This imposes a clear duty on medical practitioners to make every effort to preserve the life of a foetus that may be viable. The amendments to sections 7 to 9, inclusive, and 13 would express this in the body of the Bill. Sections 7 to 9, inclusive, are structured in such a way as to provide for a balancing of the rights of the unborn and those of a pregnant woman. The purpose of the legislation is not to regulate procedures which do not constitute abortion or to dictate the practice of obstetrics. To that end, using the word "is" as opposed to "may" and the phrase "may be" as opposed to "is ended" would lead to the inclusion of other procedures - for example, amniocentesis - which are not intended to be included here. Due to the unpredictability and complexity of these rare medical cases, it was not desirable to provide legislation for a specific referral pathway. Rather, it is deemed that standard medical practice will provide an appropriate mechanism for the process through which an assessment will be accessed. Furthermore, since the delivery of a viable premature infant does not constitute abortion there is no need to include mention of such procedures in the Bill.
The definition of "unborn" contained in the Bill protects the foetus from implantation until birth, including a foetus in the course of being born. This thereby closes off a potential legal irregularity in legislation which was identified by the expert group in its report on the judgment in the A, B and C v. Ireland case. The protection of the unborn from implantation is influenced by the Supreme Court judgment in Roche v. Roche & others which deemed that embryos acquire legal protection under Article 40.3.3o of the Constitution only from the moment of implantation. For these reasons, I cannot accept the amendments to which I refer.
The other amendments in this group apply to sections throughout the Bill and aim to add some additional wording in respect of the nature of the risk to life in order to indicate that while this must be real and substantial, it does not need to be immediate or inevitable. As discussed on Committee Stage and as highlighted by the Minister of State, Deputy White, these amendments are unnecessary. Section 8 provides for circumstances where the risk to a pregnant woman's life is immediate and, therefore, by default the risk addressed by sections 7, 9 and 13 does not need to be of such a nature. In such circumstances, I cannot accept these amendments either. It is clear that we cannot set a limit on a right. Nor can we say to women that if they have been pregnant for fewer than 24 weeks we can save them but that we cannot do so if they have been pregnant for more than 24 weeks. The position is the same in respect of a cut-off point of 20 weeks. Clearly, it would be neither constitutional nor proper to try to limit women's rights in this way.
Certain Deputies referred to the liability attaching to doctors involved in carrying out these procedures. Once a procedure is carried out in accordance with the law, there is no legal exposure. The only treatment to avert a real and substantial risk to life is repeatedly referred to throughout the Bill. It is obvious that all other treatment modalities must have at least been considered - and some tried - before the relevant professional could consider that he or she could certify in a case of termination, particularly in the context of a threat of suicide.
I again thank Deputies for their contributions. I am aware that people in this House have strong views on this matter and that they are all acting out of good conscience and strong beliefs. In that context, I believe that the Bill, as constituted, will clarify the position for women in this country who require access to the services in question and for the professionals who are obliged to deliver them. The amendments, as proposed, are unnecessary.
There is a degree of confusion with regard to what is proposed in these amendments.
My amendment and some of the others are very much consistent with the constitutional interpretation of Article 40.3.3°. That has already been made clear to the Oireachtas Joint Committee on Health and Children by Ms Catherine McGuinness. Deputy Róisín Shortall also mentioned the Master of the Rotunda Hospital in terms of the uncertainty that will prevail for medical practitioners without the insertion of some form of amendment. I am quite flexible if the Minister is willing to engage with us to try to find an appropriate wording that would satisfy and deal with the concerns expressed by Dr. Sam Coulter Smith and others.
I want to make the legal point again. It is clear from the interpretation of Mr. Justice Gerard Hogan and Professor Gerry Whyte, two of the foremost constitutional lawyers in the country. They stated:
It cannot be imagined that the ruling in X would permit abortion at any stage in pregnancy no matter how late. Clearly if the foetus is developed to the point where it was or would soon be viable outside the womb, it would be possible to vindicate both the life of the mother and that of the foetus by inducing labour or performing a caesarean section and it is disingenuous to suggest that X permits an abortion at that point.
That is all we are trying to clarify in this legislation. It is not about suggesting one life is superior to the other. It is not about, as has been emotively suggested in the Chamber, somehow restricting the rights of women. Why would I wish to restrict the rights of women or the right to life of Irish women? I am a woman; I am an Irish woman - why would I want to do that? That is not the purpose of the amendment. Its purpose is to ensure we do not create something that will potentially grow out of all control in the future, that does not give clarity to the legal profession and does not make it clear that at a certain point - that point being viability - while one, of course, makes every effort to save the life of the woman, one must also ensure one does not destroy the baby. That is the point. I ask Deputies to try not to misinterpret what I have said and what is written here in black and white.
Is the Minister of State pressing her amendment?
I will not press it because it involves a definition.
Amendment, by leave, withdrawn.
Amendment No. 23 was discussed with amendment No. 8.
It has to be moved.
It would have to be moved. It is in the names of Deputies Mattie McGrath and Éamon Ó Cuív. We can move on.
We have been asked to move it on their behalf.
They are not here.
They are not and they have to be.
When it was discussed with the others in the grouping, was it not formally moved at that stage?
We proceed amendment by amendment.
It would have to be moved now.
Each amendment.
We are moving on.
That is not the determination the Leas-Cheann Comhairle gave us earlier. The Leas-Cheann Comhairle gave a different interpretation. He said that when we spoke to the amendment, it was moved automatically.
That was the interpretation the Leas-Cheann Comhairle gave earlier.
That is not the case.
It was never the case.
That is not my understanding of the position.
Amendments Nos. 23 to 25, inclusive, not moved.
Amendments Nos. 26 and 29 are related and may be discussed together.
I move amendment No. 26:
In page 8, line 2, after “Oireachtas” to insert “, and be notified to the Joint Committee on Health,”.
Regarding any change to the appropriate institutions list made by the Minister, the Bill, as presented, requires that such orders be laid before each House of the Oireachtas. The amendment seeks to have notification also sent to the Oireachtas Joint Committee on Health and Children. It would not require any specific performance, other than notification to the pertinent Oireachtas committee, in this instance, the Oireachtas Joint Committee on Health and Children.
The related amendment No. 29 seeks to do exactly the same in the case of regulations. Section 4(1) states:
(1) The Minister may by regulations provide--
(a) for any matter referred to in this Act as prescribed, or
(b) for any matter that appears to the Minister to be necessary or expedient for bringing this Act into operation.
Section 4(3) states: "Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas". We receive a listing of all matters laid before the Houses of the Oireachtas and I am willing to put up my hand and acknowledge that these can slip by our notice. It is important to ensure there is a further safeguard for those for whom it is a primary responsibility - the members of the appropriate Oireachtas committee. They should not only be laid before the Houses of the Oireachtas but notification should also be sent to the committee, which would be a second flagging of a specific order or regulation initiated by the Minister. It would not compel the members to take any particular course of action. We recognise that orders and regulations come into force following a period of 21 days after they have been laid before the Houses of the Oireachtas where there has not been a resolution presented seeking to annul such orders or regulations. It would not of itself compel any action on the part of members, but it would be a safety net regarding the giving of due notice that those members who are most concerned, those who are given the additional responsibility of informing themselves of matters pertaining to health and all health-related legislation, would at least have a further flagging of a particular order or regulation the Minister may introduce under the legislation. It is eminently sensible and would require nothing more than notifying the Oireachtas committee in each case. I ask the Minister to consider both amendments favourably.
I accept the bona fides of the Deputy, but I do not propose to accept the amendments, as I do not believe they are necessary. Orders or regulations made under the Bill will be laid before the Houses of the Oireachtas, which includes members of the Oireachtas Joint Committee on Health and Children.
The volume of matters laid before the Houses of the Oireachtas is significant. The work of members of the respective committees, in this instance, the Oireachtas Joint Committee on Health and Children, a committee with a dual-portfolio responsibility, is voluminous when it comes to the perusal of statutory instruments, all matters pertaining to European directives, etc.
The volume of the material, as the Minister's party colleagues and the committee chairman, Deputy Buttimer, will confirm, is significant. It is not that there will be anything seismic with either orders or regulations on this. As best practice, it is a reasonable request that not only should it be laid before the Houses but notification should be forwarded to the health committee. It is another safety net for those Members interested in what specific changes the Minister may initiate at any given time with this important legislation.
I thought the Minister would have accepted this amendment because it does not impact on the Bill’s intent or outworking. It is a simple internal house-keeping procedure. I am mindful there is a need for a number of such changes in the House.
Given the level of interest in this House in this Bill to date, it is unlikely any Member will omit to check on this report when it comes out.
Amendment put and declared lost.
I move amendment No. 27:
In page 8, between lines 10 and 11, to insert the following:
“(c) to set gestational limits for termination of pregnancy.”.
Amendment put and declared lost.
I move amendment No. 28:
In page 8, to delete lines 14 to 19 and substitute the following:
“(3) The Minister shall make regulations to provide for the procedures to be employed where a pregnant woman is unable to give informed consent.
(4) The Minister shall not make regulations under this Act without it being laid before and approved by each House of the Oireachtas.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 29 not moved.
I move amendment No. 30:
In page 8, between lines 27 and 28, to insert the following:
“CHAPTER 1
Medical treatment lawful under this Act
Inevitable miscarriage
7. It shall be lawful to carry out a medical procedure in respect of a pregnant woman in the course of which, or as a result of which, a pregnancy is ended, where—
(a) the medical procedure is carried out by an obstetrician at an appropriate institution, and
(b) subject to section 19, a medical practitioner, having examined the pregnant woman, has certified that an inevitable miscarriage is taking place.”.
Amendment put:
The Dáil divided: Tá, 14; Níl, 128.
Tá
- Boyd Barrett, Richard.
- Broughan, Thomas P.
- Collins, Joan.
- Daly, Clare.
- Donnelly, Stephen S.
- Halligan, John.
- Healy, Seamus.
- Higgins, Joe.
- Keaveney, Colm.
- McGrath, Finian.
- Murphy, Catherine.
- Pringle, Thomas.
- 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.
- Lynch, Kathleen.
- Lyons, John.
- McCarthy, Michael.
- McConalogue, Charlie.
- McEntee, Helen.
- McGinley, Dinny.
- McGrath, Mattie.
- McGrath, Michael.
- McGuinness, John.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- 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'Dea, Willie.
- 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 Richard Boyd Barrett and Seamus Healy; Níl, Deputies Paul Kehoe and Emmet Stagg.
Amendment declared lost.
I move amendment No. 31:
In page 8, between lines 27 and 28, to insert the following:
“CHAPTER 1
Medical treatment lawful under this Act
Rape and incest, risk to health and risk to well-being of the woman
7. (1) It shall be lawful for a woman, following consultation with her general practitioner, to obtain a termination of pregnancy if—
(a) she believes her health, physical or mental, may be at risk if she were to continue the pregnancy,
(b) the pregnancy is as a consequence of rape or incest, or
(c) she believes it is in her best interests to do so.
(2) A medical procedure under this section shall be carried out by an obstetrician at an appropriate institution subject to the consent of the woman.”.
Amendment put and declared lost.
I move amendment No. 32:
In page 8, to delete lines 30 to 35, to delete page 9, and in page 10, to delete lines 1 to 39 and substitute the following:
“7. (1) 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, an unborn human life is ended where—
(a) the medical procedure is carried out in accordance with regulations under this section,
(b) regulations under this section shall not contravene current evidence based medical treatments, and
(c) regulations made under this section shall not come into force without being laid before and approved by each House of the Oireachtas.
(2) The medical procedure employed shall not impede all efforts to sustain the life of the unborn, after the complete emergence of the human life from the body of the woman, where it is potentially viable outside the womb.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment Nos. 33 to 37, inclusive, not moved.
I move amendment No. 38:
In page 9, to delete lines 3 and 4 and substitute the following:
“(ii) 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 the medical procedure,”.
Amendment agreed to.
Amendments Nos. 39 to 41, inclusive, not moved.
I move amendment No. 42:
In page 9, line 13, after “shall,” to insert “only”.
Amendment put and declared lost.
Amendments Nos. 43 to 46, inclusive, 76, 96, 103, 104, 116, 117 and 137 are related and may be discussed together.
I move amendment No. 43:
In page 9, line 13, after “consult” to insert “with appropriate urgency,”.
Amendments Nos. 43 and 76 seek to achieve the same outcome. They want to instill a sense of urgency in terms of the medical practitioners seeking to engage with a woman's consent with her general practitioner. Any reading of the requirements on the medical practitioners in respect of a section 7 certification vis-à-vis the risk of loss of life from physical illness, or a section 9 certification in respect of the risk of loss of life from suicide, will show that in the situation where the medical practitioners are concerned about the risk of physical illness or the risk of loss of life from suicide, there is no requirement to act with what I would view as appropriate haste. By inserting the words "with appropriate urgency" after the word "consult", section 7(3) would then read:
If practicable, at least one of the medical practitioners referred to in subsection (1)(a) shall, with the pregnant woman’s agreement, consult, with appropriate urgency, with the woman’s general practitioner (if any) for the purposes of obtaining information..
The same formula applies to section 9(4). Where the risk of loss of life is from suicide, I believe there is a need to emphasise the importance of due haste and of acting without any undue delay, and at times acting in the interest of the woman's health that may be in real and substantial risk.
I hope that Members and the Minister recognise that the language used in the Bill in both of these sections does not of itself compel the medical practitioners to act with due haste. While we can reasonably assume that they would do so in all cases, I think it is a requirement of us to indicate not only to medical practitioners what is expected of them, but as the dual purpose is to give clarity to medical practitioners and certainty to women in pregnancy, the insertion of the words "appropriate urgency" serves both purposes. It provides clarity to medical practitioners and certainty to the women who may find themselves in situations of risk that no time will be lost in proceeding to acquire all of the relevant information if that is her express wish in respect of consultation with her general practitioner.
In this grouping, amendments Nos. 104 and 107 appear in my name and I wish to speak briefly to each of those. In amendment No. 104, I seek to reduce the number of days where the review committee would carry out its assessment of the woman's case on appeal. There is currently a provision in the Bill for bringing together a review committee to assess any referred refusal of a section 7 or section 9 certification within three days.
A further seven days are provided to carry out deliberations, decide on an informed opinion and give a decision. Seven days is a long time in the circumstances that could and, I believe, will present. Accordingly, such a period is unreasonable and a shorter period would be more appropriate. These are highly qualified medical professionals who will avail of the opportunity, following three days of being together, to immediately embark on a full assessment of the case, including a full examination of the woman and a review of the salient information in her case, her appeal and circumstances. Four days is adequate time for the work they will be required to undertake. Accordingly, I commend amendment No. 104 to the House.
Amendment No. 137 states: "In page 14, line 32, after “shall” to insert “immediately”." This amendment pertains to the issue of conscientious objection. We must recognise that the language employed in this section refers specifically to a medical practitioner who has a conscientious objection. Section 17(3) provides that such a person "shall make such arrangements for the transfer of care of the pregnant woman concerned as may be necessary to enable the woman to avail of the medical procedure concerned". The language does not demonstrate any compunction on the part of the medical practitioner to act with the urgency the situation might require. For the sake of medical practitioners and child bearing women - whether now or in the future - for whom this may be a matter of life of death, it is important to add the word "immediately" after "shall". The Bill is not aimed solely at providing the necessary clarity and certainty for medical practitioners. It also has responsibility for conveying certainty to women who may find themselves in these situations. There can be no toleration of delay. If a person has a conscientious objection, he or she should state it and deal with the matter immediately. Although it may be correct in practice, I hope in all cases, to assume that the response will be immediate, if there is the possibility of urgency not applying in every case, a strong argument can be made for clarifying what is required by inserting the word "immediately" as proposed. I appeal to the House to accept the validity of the case I have presented on amendments Nos. 43 and 76 to provide for appropriate urgency, amendment No. 104 in respect of the number of days the review committee will be given to deliberate on cases referred to it and amendment No. 137 in respect of the requirement for immediacy in referrals by medical practitioners with a conscientious objection.
I will try to avoid duplicating the points made by other speakers because I agree with most of them. We are discussing an exceptional situation involving very small numbers, given the restrictive nature of the legislation. There are already onerous obligations in terms of putting together a panel, but the community of clinicians involved is small and will probably be self-selecting within regions. This will happen in the context of an emergency arising from medical problems or where a woman feels suicidal. We must visualise such an emergency if we are to consider how these provisions will operate in practice.
I have tabled a number of amendments jointly with Deputies Richard Boyd Barrett, Joe Higgins and Seamus Healy. Amendments Nos. 44 to 46, inclusive, propose to insert the word "forthwith". Amendment No. 96 would require the review panel to establish a committee of review and make the relevant decision in one day rather than three. It would also require the committee to complete the review within three days as opposed to seven. That is not unreasonable in an emergency. I would have thought it would automatically begin in certain situations. In the context of suicide, I envisage that any delay would be torturous for someone who finds herself in that situation. It could even compromise her life because of the length of time the matter was under discussion. I, therefore, urge the Minister to accept these changes.
Amendment No. 103 deals with the amount of time given to the review committee to carry out its deliberations and reach a decision. The Bill currently provides for a figure of seven days. When we add the three days provided for establishing the committee, the period comes to ten days. As Deputy Catherine Murphy pointed out, these provisions will apply in cases which require urgency in establishing a committee and reaching a decision. A more reasonable time period, particularly in making a decision, is three days. That would effectively reduce the overall period to six days.
I hope the Minister can accept this reasonable proposition.
Within this grouping, amendments aim to add urgency to the wording set out in the Bill, through the use of terms such as "forthwith" and "immediately". In addition, these amendments propose to reduce the timeframe specified in the Bill for the review process. As discussed on Committee Stage, legal advice has been received to the effect that the legal meaning of the term "forthwith" is "immediately". This qualification, as well as such proposed phrases as "with appropriate urgency" and "immediately", is unnecessary, as the Bill uses terms like "shall make arrangements" in this section which render such qualifications superfluous.
While I am conscious that the formal review process needs to happen in a speedy manner to safeguard the right to life of the pregnant woman concerned, it is important to understand that this process requires a number of steps which the HSE, as the convenor for this process, needs to take. The application for the review process needs to be assessed to ascertain the nature of the request, whether it concerns a section 7 or section 9 certification, the identification of the relevant medical practitioners, the making of logistical arrangements in regard to the convening of these medical practitioners, to their duty to examine the woman, and to her right to be heard or for someone on her behalf to address the review committee.
Therefore, reasonable timeframes are provided for in the Bill that strike a balance between the need to vindicate the pregnant woman's right to life and the logistical requirements of the process. During the drafting of this Bill, my officials consulted with the relevant professional bodies and I am satisfied that the timeframes provided are appropriate. In addition, it must be noted that these timeframes refer to an absolute upper limit and, depending on the clinical scenario at hand, the review process may take place much more speedily. Very often it will, as mentioned by Deputy Murphy.
Finally, were the pregnant woman's medical condition to deteriorate, provisions are made for her situation to be addressed through an emergency procedure under section 8. For those reasons, I do not propose to accept the amendments proposed.
As a general proposition, it is not really appropriate for us to operate on an assumption. I am not saying Deputy Ó Caoláin is doing this, but in general it is not good practice in legislation to operate on an assumption that doctors would act other than in an expeditious manner. The assumption must be that they will act in a timely way. My understanding of medical professional practice is that time is of the essence. The principle inherent in best medical practice, which doctors are required to observe, is that they act in a timely way. While it may sound counter intuitive, to insert a requirement into statute that doctors should or must act "immediately" or "forthwith" would give rise to something which could take us into the opposite territory to that we want to achieve.
At the least, it would mean that we would have to put into statute a definition of what constitutes "immediate". We might think the English language is clear, but in the clinical environment, what is "immediate" may not be absolutely clear to us, even in terms of sending forward forms. Therefore, it may happen that we say something should be done "forthwith" or "immediately", but what if something else arises in that clinical environment? For example, a doctor might say to himself that he knows something is the first thing he should do, but now something unforeseen has arisen that should be done before the thing the statute requires him to do. That is not good territory for us to get into in the context of legislation. We should rely on doctors observing best practice and that they will operate with the appropriate urgency the Deputy proposes we require them to do statutorily. We should assume they will do that. In accordance with best medical practice and the guidelines of their profession, time is of the essence.
The other problem if we accept the amendment is that we would then end up having to define "appropriate haste". If we define "appropriate haste", we create a circular issue because we would then have to decide how to define "appropriate". We would have to ask the professions what was appropriate and this would bring us back to the proposition that the doctors are required to know what is appropriate, because it is inherent in medical and professional practice and standards.
I indicated in my contribution that I understood the assumption. I do not believe the concern must be grave in order to have us consider injecting the phrase with which I have tried to achieve better clarity. It is very important that we convey our expectations. The utilisation of "shall make" does not place a requirement on the medical practitioner to act even the same day. The Minister spoke about a situation where something else might arise, but something else might arise that is not relevant to the circumstances of the unfortunate woman in any given situation that may come under the remit of these medical practitioners. Something else might take them away to deal with something else, which is often the case. No doubt the Minister is familiar with the practice of particular acute hospital settings, where there is so much to be done and the general thrust of the day's workload is to move on.
We need to reflect strongly the requirement to act with appropriate urgency and immediacy in the situations I have described. That woman cannot wait for another circumstance to be attended to or addressed. It is the requirement of the system to provide adequate resourcing and staffing to ensure that where a situation such as this arises - where a woman's life is at risk, either due to physical illness or in the circumstances of section 9 certification in regard to the risk of loss of life due to suicide - these cases are priority cases that must be addressed and concluded before any other situation is undertaken.
We have experience and many examples of the situation in hospitals where people wait for assistance. Sadly, in today's acute hospital network, people can be waiting for days in inappropriate situations, sometimes for what we might regard as straightforward address and attention. In life-threatening and life-at-risk situations, we cannot tolerate that and this must be conveyed in the wording of the legislation so as to make it abundantly clear to all concerned that there needs to be the urgency these amendments seek to reflect in the Bill.
In regard to the number of days, it may well be the case, and one would hope it would prove to be in time, that the seven days is the outside marker and that review committees would conclude and report their business within a much shorter timeframe. It is important this is the case and I hope practice will demonstrate it to be so. However, I am still not of a mind to accept that seven days is reasonable where we are talking about either two highly qualified medical practitioners in regard to a section 7 referral or three in regard to a section 9 referral.
I do not accept that they could not conclude their assessment within a shorter timeframe. It is my view that between their being constituted as a review committee over three days and their concluding their assessments and deliberations and signing off on either granting the certification or affirming the first refusal, whichever scenario presents, this can all be done within a four day period. I would not suggest reducing the time allowed from seven days to four if I thought for one moment that it was unreasonable or could create unsound outcomes owing to unnecessary haste. I am convinced in putting forward this amendment - we have given careful thought to all our proposals - that four days is a reasonable timeframe. I again ask for the Minister's reconsideration of this amendment.
On the question of conscientious objection, there is and can be no toleration whatsoever of any undue delay in seeking to make arrangements for an alternative medical practitioner to fill that role. If a medical practitioner across any of the disciplines and specialties has a conscientious objection to dealing with a woman's situation, it is not in any way an inordinate demand that such arrangements be made immediately. Nothing else suffices.
I listened carefully to what the Deputy said and respect where he is coming from on this issue. However, we do not propose to accept the amendment.
Amendment put and declared lost.
Amendments Nos. 44 to 50, inclusive, not moved.
I move amendment No. 51:
In page 9, to delete lines 33 and 34 and substitute the following:
"(b) the medical procedure is, in his or her reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable) immediately necessary in order to save the life of the woman, and".
Amendment agreed to.
Amendment No. 52 cannot be moved because of the decision on amendment No. 51.
Amendments Nos. 52 to 55, inclusive, not moved.
I move amendment No. 56:
In page 10, to delete lines 6 to 39.
Question put: "That the words proposed to be deleted stand."
The Dáil divided: Tá, 130; Níl, 24.
Tá
- Adams, Gerry.
- Bannon, James.
- Barry, Tom.
- Boyd Barrett, Richard.
- Breen, Pat.
- 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.
- 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.
- Griffin, Brendan.
- Halligan, John.
- Hannigan, Dominic.
- Harrington, Noel.
- Harris, Simon.
- Hayes, Brian.
- 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.
- Neville, Dan.
- 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.
- Pringle, Thomas.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reilly, James.
- Ring, Michael.
- Ross, Shane.
- Ryan, Brendan.
- Shatter, Alan.
- Sherlock, Sean.
- 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.
- Creighton, Lucinda.
- 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.
- Smith, Brendan.
- Timmins, Billy.
- Tóibín, Peadar.
- Troy, Robert.
- Walsh, Brian.
Tellers: Tá, Deputies Paul Kehoe and Emmet Stagg; Níl, Deputies Mattie McGrath and Éamon Ó Cuív.
Question declared lost.
Amendment declared lost.
Amendments Nos. 57 to 65, inclusive, not moved.
I move amendment No. 66:
In page 10, to delete lines 13 and 14 and substitute the following:
“(ii) 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 the medical procedure,”.
Amendment agreed to.
Amendments Nos. 67 to 70, inclusive, not moved.
I move amendment No. 71:
In page 10, line 18, to delete “3” and substitute “2”.
Question, "That the figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 72:
In page 10, line 19, to delete “an obstetrician who practises as such at an appropriate institution” and substitute “a general practitioner or a medical practitioner of a relevant specialty”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 73:
In page 10, to delete line 20.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 74:
In page 10, line 25, to delete “Of the 2 psychiatrists” and substitute “If practicable, it is recommended that the psychiatrist”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 75 not moved.
I move amendment No. 76:
In page 10, line 29, after “consult” to insert “with appropriate urgency,”.
Amendment put and declared lost.
I move amendment No. 77:
In page 10, between lines 33 and 34, to insert the following:
“(5) The medical practitioners referred to in subsection 1(b) shall, in making their decision as to whether or not to make a section 9 certification in respect of the woman, have regard to contemporary medical evidence pertaining to the appropriateness of the medical procedure for the purpose of averting the risk of loss of the woman’s life by way of suicide.”.
Amendment put and declared lost.
I move amendment No. 78:
In page 10, between lines 33 and 34, to insert the following:
“(5) (a) Prior to making their decision as to whether or not to make a section 9 certification, the three medical practitioners referred to in subsection (1)(a) shall jointly meet with the woman, a person acting on her behalf and an advocate for the preservation of the life of the unborn nominated by the Attorney General. The purpose of the meeting shall be to assist the medical practitioners in considering whether or not to make a section 9 certification by reference to the provisions of this Act.
(b) The three medical practitioners referred to in subsection (1)(a) shall make an application in the prescribed form and manner to the Attorney General requesting the Attorney General to nominate an advocate for the preservation of the life of the unborn.
(c) Where the pregnant woman has not nominated a person to act on her behalf, the three medical practitioners referred to in subsection (1)(a) shall make an application in the prescribed form and manner to the Attorney General requesting the Attorney General to nominate a person to act on behalf of the woman.
(d) The Attorney General shall nominate an advocate for the preservation of the life of the unborn and, if requested to do so under paragraph (c), a person to act on behalf of the woman without delay and no later than 48 hours from the receipt of a request under paragraph (b) and/or paragraph (c) as the case may be.
(e) The woman, the representative of the woman and the advocate for the preservation of the life of the unborn shall be entitled to review all documents and information being considered by the three medical practitioners referred to in subsection (1)(a) and to participate fully in, and be heard at, the meeting held pursuant to paragraph (a) but subject to the restriction that the advocate for the preservation of the life of the unborn shall not be entitled to cross-examine the pregnant woman.”.
Amendment put and declared lost.
I move amendment No. 79:
In page 10, to delete lines 34 to 39 and substitute the following:
“(5) Subject to section 19, the certifying obstetrician shall—
(a) forward, or cause to be forwarded, the section 9 certification to an appropriate institution,
(b) forward, or cause to be forwarded, a copy of the section 9 certification to the Attorney General, and
(c) make such arrangements as may be necessary for the carrying out of the medical procedure to which the section 9 certification relates at the appropriate institution, subject to the outcome of any review under Chapter 2 of this Part.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 80 not moved.
I move amendment No. 81:
In page 10, after line 39, to insert the following:
“Fatal foetal abnormality
10. (1) 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, a pregnancy is ended, where—
(a) the medical procedure is carried out by an obstetrician at an appropriate institution, and
(b) subject to section 19, two medical practitioners, having examined the pregnant woman, have jointly certified that the foetus in question has a fatal foetal abnormality.
(2) Of the 2 medical practitioners referred to in subsection (1)(b)—
(a) one shall be an obstetrician who practises as such at an appropriate institution, and
(b) the other shall be a perinatologist who practises as such at an appropriate institution.
(3) If practicable, at least one of the medical practitioners referred to in subsection (1)(b) shall, only with the pregnant woman’s agreement, consult with the woman’s general practitioner (if any) for the purposes of obtaining information in respect of the woman from that general practitioner that may assist the medical practitioners in their decision as to whether or not to make a section 10 certification in respect of the woman.
(4) Subject to section 19, the certifying obstetrician shall—
(a) forward, or cause to be forwarded, the section 10 certification to an appropriate institution, and
(b) make such arrangements as may be necessary for the carrying out of the medical procedure to which the section 10 certification relates at the appropriate institution.”.
Amendment put:
The Dáil divided: Tá, 17; Níl, 127.
Tá
- 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.
- Murphy, Catherine.
- Nulty, Patrick.
- 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.
- Lynch, Ciarán.
- Lynch, Kathleen.
- Lyons, John.
- McCarthy, Michael.
- McConalogue, Charlie.
- McEntee, Helen.
- McGinley, Dinny.
- McGrath, Mattie.
- McGrath, Michael.
- McGuinness, John.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- 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'Dea, Willie.
- 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 Joe Higgins; Níl, Deputies Paul Kehoe and Emmet Stagg.
Amendment declared lost.
Amendments Nos. 82, 90, 101, 131, 132, 134 to 136, inclusive, and 138 are related and may be discussed together.
I move amendment No. 82:
In page 10, after line 39, to insert the following:
“Duty of care
10. (1) A medical practitioner or medical institution, if contacted by a woman seeking treatment under the provisions of this Act, shall have a duty of care to that woman. Such duty of care shall include, but not be limited to—
(a) an obligation to inform the woman as to the pathways of care to which she is entitled,
(b) an obligation, if appropriate, to provide the woman with such treatment to which she is entitled,
(c) an obligation, if such medical practitioner or medical institution cannot provide the medical treatment, to refer the woman to an appropriate medical practitioner or medical institution,
(d) if referring to an appropriate medical practitioner or medical institution, to make such reasonable enquiries as necessary to confirm that the woman has been dealt with appropriately by the medical practitioner or medical institution to which she has been referred.
(2) For the avoidance of doubt, nothing in this section shall limit the right of the medical practitioner to conscientious objection under section 17 of this Act.”.
Essentially, some of these deal with-----
I am sorry, Deputy; I am afraid we cannot hear you.
I will give it a minute.
Sorry, Deputies, if you please. This is not a railway station. There is somebody trying to move an amendment. Would the Deputies mind getting out of the Chamber or else sit down?
Amendment No. 82 establishes a duty of care on behalf of a practitioner or an institution. We all realise it takes considerable time to establish or change a culture in an organisation. If one has an explicit duty, that assists in defining the kind of culture there is. I mentioned it last night in relation to the Liverpool hospital that I visited and how Irish women felt judged in going to that institution, specifically in the context of fatal foetal abnormalities. It is really important that we change that culture for women who have an entitlement to care under this legislation and we must craft that and not assume that it will happen. That is why this amendment on duty of care is included.
Amendment No. 90 seeks to disqualify a practitioner from a review panel if he or she has had a conscientious objection in the past. That is reasonable. There must be fair procedures where a woman is in front of a review panel. Amendment No. 101 does largely the same. Amendment No. 134 lays down conditions on conscientious objections. Amendment No. 135 makes it a duty on an appropriate institution to have the required number of staff available for a termination. These amendments all explain themselves. I do not wish to press it in any further detail. I am sure others will add to what I have said.
Does Deputy Boyd Barrett wish to contribute?
These are self-explanatory.
This group of amendments is concerned with conscientious objection. In accordance with the European Convention on Human Rights and the Medical Council's ethical guidelines, section 17 of the Bill clarifies that health professionals - medical and nursing personnel and pharmacists - with a conscientious objection will not be obliged to carry out or assist in carrying out lawful terminations of pregnancy, unless the risk to the life of the pregnant woman is immediate, that is, in an emergency situation.
However, an individual's right to conscientious objection is not absolute and must be balanced against the patient's competing rights, particularly the right to life in the case of a medical emergency. Both the medical guidelines and the Bill make it clear that conscientious objection cannot be invoked when the risk to a pregnant woman's life is immediate. In non-emergency cases, where a doctor or other health professional has a conscientious objection to undertaking a required medical procedure, he or she will have a duty to ensure that another colleague takes over the care of the patient as per current medical ethics. In addition, section 10 of the Bill provides a specific duty on a treating physician who refuses certification to inform the woman that she has a right to apply for a formal review of this decision.
As the Bill covers situations in which medical procedures may be carried out where there is real and substantial risk to the woman's life, the right to conscientiously object has been limited to those directly involved in the provision of treatment. It would not be reasonable to include any other personnel as this might have the effect of blocking a woman's access to a lawfully-provided and medically-indicated treatment.
Finally, I wish to address amendments Nos. 90 and 101, which propose to disqualify a doctor from sitting on a review panel if he or she has a conscientious objection to the procedure in question. We covered this in the committee.
While a medical practitioner may have particular beliefs that dictate that he or she feels he or she cannot participate in a particular form of medical procedure, this should not disqualify him or her from participating in the review process set out in the Bill, which calls for his or her clinical judgment to be applied. In situations where they are being called upon to assess whether there is a real and substantial risk to a woman's life, I believe we can trust doctors to apply their professional skill and clinical judgment to the case to ensure that the woman receives the best possible care and treatment.
For these reasons, I do not propose to accept any of the amendments proposed in this grouping.
I noted the Minister's comments on the issue of conscientious objection, an issue we raised on Committee Stage. I questioned this issue on Committee Stage and the Minister gave the clarification that he has just given to the House. On foot of that, I contacted the INMO on this issue and, on foot of that, I tabled amendment No. 138.
The INMO has a different perspective on this. It has had discussions with the HSE on this issue and the right of any individual midwife, nurse or other staff member to indicate they have a conscientious objection to participate in a procedure. They have been told by HSE management that the current practice will continue to hold. The current practice is that in such a situation an individual will have an obligation to notify his or her line manager, that is, his or her department head, of his or her objection and the wish to be relieved from participating in that procedure, and there is no indication from the HSE that this standard practice will change. The standard practice at present is that the line manager would then have an obligation to facilitate the request and to find a replacement staff member to cover for that particular procedure.
The INMO further states that it would never be the situation in clinical practice that an individual staff member can find his or her replacement without recourse to his or her line manager or department head, and standard governance procedures would always insist that the department head or line manager ultimately roster staff and-or provide short-term cross-cover arrangements in any situation, but particularly in these very sensitive environments. The INMO further states that for its part, as a representative organisation representing staff, it will be insisting on the above process remaining in place subsequent to the enactment of this legislation. They state, finally, that they do not have any sense from the HSE that it intends to change the long-standing practice I outlined and they would have concerns if that long-standing practice was to change. In light of the information that I have received from the INMO which is on foot of discussions that it has had with the HSE in the context of this legislation, I ask the Minister to reconsider amendment No. 138 and make provision for it in line with current practice in the nursing profession and midwifery in the current hospital system.
I refer to my amendment No. 131.
The Bill impacts mostly directly on the right to life which is the basic most fundamental right of all, but another human right being threatened under the Bill is the right to freedom of conscience. The vindication of this right is the objective of the two amendments I tabled, amendments Nos. 131 and 136.
The right to freedom of conscience is acknowledged in all of the major international declarations and conventions on human rights. It is also guaranteed under the Constitution, under Article 44.2.1°. While the Constitution treats freedom of conscience along with freedom of religion, it is generally acknowledged that freedom of conscience is more expansive in its scope. Believers and non-believers are bound by conscience and suffer equally if their freedom to act in accordance with their conscience is infringed or denied.
In essence, the freedom of conscience means that one cannot be coerced or compelled to do something that one believes is wrong. While we all may fail to live up to the standards to which our own consciences might aspire, it is quite another matter if we are forced by a third party to do what we believe in our hearts to be wrong.
By including section 17, which deals with conscientious objection, this acknowledges the problems already identified under section 9. There would indeed be no need for a section explicitly dealing with conscientious objection were it not for the fact that the Bill proposes actions to which many people might reasonably object. In so far as they provide a statutory basis for existing medical practice, I do not anticipate that sections 7 and 8 will prompt anyone to invoke the right to a conscientious objection. I am unaware of any doctor who would refuse to help to save the life of a pregnant woman in difficulty if she were threatened by a physical illness. I doubt that any such doctor exists in Ireland. However, under section 9, doctors and others are expected to perform or facilitate a procedure in the course of which or as a result of which an unborn human life is ended. They are expected to do this despite the absence of any medical indication that it will be of benefit to the mother. It is reasonable to expect that many of those who might be expected to participate in these abortions will likely object to doing so. Despite the concession that coercing someone to participate in an abortion would be a violation of the right of freedom of conscience, section 17 is none the less woefully inadequate, as it now stands, in vindicating that right. It restricts the right of freedom of conscience to certain specified categories of person. The deliberate destruction of innocent human life is a matter of such gravity that no one can say that some people have the right not to be forced to participate in it but others do not. It is not only medical practitioners, nurses and midwives who may be complicit in an abortion. The administrators who are expected to arrange for the abortion, the hospital porters who have to facilitate it, the cleaners who have to clean up after it and others may be asked to take their own part in abortions. They all have the right to refuse and the Bill must acknowledge and protect that right.
This amendment will not render the Bill acceptable, nor will it significantly reduce the likelihood that innocent unborn life will be needlessly and deliberately destroyed. It will, however, ensure that one evil is not compounded by another.
With regard to amendment No. 136, a major flaw in subsection 17(3) restricts the right of freedom of conscience to the extent that it becomes meaningless. The doctor can wash his hands of a case but only if he arranges for another doctor to carry out the abortion. No doctor should be compelled to be a hypocrite by refusing to do an abortion but arranging for someone else to do it instead. The right of freedom of conscience is curtailed by this subsection and it also curtails the right to professional integrity. A medical practitioner, a nurse or a midwife, who forms an opinion in good faith and based on best medical practice or the best scientific evidence available to him or her at the time that the risk to the woman's life will not be averted by carrying out the medical procedure in question, or that such risk can be averted by other means, could be compelled to transfer the woman to the care of another who will perform the procedure regardless. It is at least arguable that such a medical practitioner would be engaging in professional misconduct, unethical behaviour, medical negligence or even reckless endangerment. We cannot enact a law that would force someone to do that, but this is what is proposed in subsection 17(3).
I wish to put on the record of the House a quote from the Irish Family Planning Association:
In many countries where abortion is legal, the exercise of conscientious objection has frustrated and delayed women's access to lawful abortion, or women have been refused care. Because the issue in question is the refusal of care where there is a risk to a woman's life, the legislation must provide adequate safeguards against refusal of care.
I wish to correct a reference I made to pharmacists when I spoke about conscientious objection. This provision is for medical and nursing personnel only. The IMO has been mentioned, and I might have some old affiliations in that regard. The Irish Family Planning Association has been mentioned, and I may have trained there. However, we are legislators and our job is to legislate. The Medical Council guidelines are clear; they come with clean hands to this debate. I stand by what is contained in those guidelines and, therefore, I will not be accepting these amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 83 to 90, inclusive, not moved.
Amendments Nos. 91, 92, 94, 95, 105, 106 and 118 are related and may be discussed together.
I move amendment No. 91:
In page 11, lines 21 and 22, to delete ", in addition to appointing medical practitioners duly identified by it for appointment to the review panel,".
Amendments Nos. 91 and 94 deal with issues discussed on Committee Stage. The legislation as currently drafted puts the cart before the horse. The Minister is requesting that the HSE make up a list of at least ten medical practitioners from which to choose three members of the review panel and take nominees from the various medical professional organisations and colleges. The HSE would choose from its initial list of ten and may or may not choose from the nominees provided by the various professional organisations. The Minister has quoted ad nauseam witness evidence from the various colleges and he has lent great credence to this evidence, yet he is not prepared to put the nominees on the panel and supplement it with additional staff or medical personnel he requires from the executive nominee process. I hope the Minister will give recognition to the nominees of the various training colleges, as per his comments.
My amendments Nos. 106 and 118 arise from debate on Committee Stage.
As we approach the end, am I correct in saying that the Minister has not accepted any amendment at all? I acknowledge some amendments sought significant change and I understand why the Minister was opposed to that, but many of them were intended to improve the protective ability of the legislation and should not have been controversial. Amendment No. 92 is a constructive amendment which seeks to help the situation. We have spoken at length today and on previous days about the necessity to trust in doctors. The power to choose the review panel is in the hands of the HSE under the legislation. The executive is responsible to the Department of Health, which, in turn, is responsible to the Minister, but this is a medical issue and it should be grounded in the Medical Council. It should be regulated by doctors rather than being the direct responsibility of the Minister. Alas, Deputy Reilly may not be Minister for Health forever and, therefore, it is important that there be separation between the Minister of the day and the process of nomination to these review panels. What better organisation to oversee the process than the Medical Council, which is representative of doctors?
The HSE is directly responsible to the Minister of the day and I am concerned that a Minister could exert control over, or apply indirect political pressure to, this sensitive and important area. The amendment would simply reduce the possibility of that pitfall in future and I hope the Minister will look on it in a constructive and positive light.
These amendments are concerned with the review process set out in sections 11 to 14, inclusive. As the convenor of the review panel, the HSE needs to ensure all the requirements for the participation of medical practitioners in the formal review process as set out in the Bill - for example, in regard to registration, qualifications and composition - can be complied with. In addition, colleges may not make any nominations to the panel, as they are independent organisations and do not have any accountability. The HSE, therefore, must be able to consider the nominations of the professional bodies and add to them, if required, to fulfil the legal requirements of the Bill. If we were to insist that they had an absolute right in this regard, they could frustrate the entire operation of the legislation by refusing to nominate anybody.
To fulfil the requirements for certification, the medical review process must mirror the specifications of the assessment under sections 7 and 9. This means that, since an examination is required under those sections, the review committee must also carry out this examination to be in compliance with the principles of the proposed legislation.
With regard to Deputy Naughten’s amendment No. 118, I have received legal advice which confirms that from a legal standpoint the wording set out in the Bill allows a woman and/or the person attending on her behalf to be heard.
With regard to Deputy Walsh’s proposed amendment, No. 95, it is unacceptable that the appointment of medical practitioners to the review panel would be subject to the approval of the Houses of the Oireachtas. The provisions the Bill makes regarding the convening of a review committee are aimed at providing clarity in situations in which a woman believes there is a real and substantial risk to her life which may only be averted by a termination of pregnancy. With this in mind, the Bill specifies that review committees be convened as soon as possible after an application has been received. The amendment would have the effect of slowing down the process to the point that women’s lives could be put at unnecessary risk, particularly if an application is made at a time the Houses of the Oireachtas are in recess. I am not, therefore, in a position to accept these amendments.
Would it be too much to hope that when Deputy Naughten said I had been repeating something ad nauseam he meant ad infinitum? The reason he knows my views so well is that we thrashed all this out on Committee Stage. There is nothing in the legislation that says a woman cannot have someone with her.
Indeed it would be common enough practice for somebody to bring someone with them when going to see the doctor or to see a group of doctors when they have serious concerns. I hope that the Deputy will accept that I cannot accept the amendments.
I am genuinely disappointed because my first two amendments do not change the thrust of the section. All I am saying is that the priority should be first on the colleges rather than the executive. We had this argument on Committee Stage and I am not going to repeat it. I am disappointed that the Minister has not accepted it.
The other two amendments highlight the farcical situation here. I am genuinely disappointed. I know we have had principled arguments on the issues but I am disappointed that a woman is not being given a legal right in this legislation to bring an advocate with her. It is really disappointing. The Minister is correct in his response. The woman will be heard or a person acting on her behalf but she does not have under this legislation the right to bring someone with her.
Who is saying she is not to?
The Minister of State should read the legislation. This is in subsection (1):
The pregnant woman shall be entitled to be heard by the review committee and, where the woman or a person acting on her behalf informs the committee that she wishes to be heard, the committee shall make such arrangements as may be necessary in order to hear the woman or a person acting on her behalf.
The fact that it does not give her a legal right to bring someone with her is hugely disappointing. No one in this House could disagree with the fact of having it. I urge the Minister to accept this amendment at the 11th hour. It is a very small amendment but at least it ensures that the woman can legally have someone with her before the review panel.
There are significant pitfalls in linking the HSE with the nomination of members to the panel. The HSE could ensure that all regulations are complied with in regard to nominees to that panel and still leave the Medical Council to nominate the individuals.
As Deputy Naughten said we are not very far away from the 11th hour. With regard to his amendment No. 118 I have received legal advice which confirms that from a legal standpoint the wording set out in the Bill allows a woman "and-or the person attending on her behalf". "And-or": that is the legal interpretation of the Bill. The Deputy's amendment is utterly unnecessary.
I thank the Minister for re-wording his response. The Official Report will show that when he read it out first he did not say "and" he said "or". As he will note, line 18 of the Bill does not use the word "and". All I am looking for is that the word "and" be put in so that it is stated in the legislation that the woman has a right to bring an advocate with her. It is a very basic amendment. I do not want to have to divide the House on this. Everyone in the House agrees with the point. It makes good practice to ensure that the woman has a legal right under the legislation. I accept what the Minister is saying but all I am looking for is the letters a, n, d, and a backslash to be put in there, to state in the legislation what the Minister has told me is the interpretation of it. That is not what the legislation says. I will press the amendment.
On a point of order, is there any possibility that in light of what has transpired the Minister would accept the amendment? There are 155 amendments.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 92 cannot be moved. Amendment No. 93 was already discussed with amendment No. 8.
Amendment No. 92 not moved.
I move amendment No. 93:
In page 11, to delete line 24.
Question "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 94 was already discussed with amendment No. 91.
I move amendment No. 94:
In page 11, to delete lines 28 and 29.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 95 not moved.
Amendment No. 96 was already discussed with amendment No. 43.
I move amendment No. 96:
In page 11, line 31, to delete "3 days" and substitute "1 day".
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 97 was already discussed with amendment No. 7.
I move amendment No. 97:
In page 12, to delete line 2 and substitute the following:
"(a) a general practitioner or a medical practitioner of a relevant speciality, and".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 98 was already discussed with amendment No. 8. If the question on amendment No. 98 is agreed, amendments Nos. 99 and 100 cannot be moved.
I move amendment No. 98:
In page 12, to delete lines 4 to 14.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 99 and 100 not moved.
Amendment No. 101 was already discussed with amendment No. 82.
I move amendment No. 101:
In page 12, between lines 17 and 18, to insert the following:
"(6) A medical practitioner shall be disqualified from sitting on the review committee where he or she has previously refused to perform an abortion on ground of conscientious objection and or has previously expressed publicly an opinion in general opposition to abortion in all its forms and or abortion as a treatment option under the terms of this Act.".
Amendment put and declared lost.
Amendment No. 102 was already discussed with amendment No. 8.
I move amendment No. 102:
In page 12, lines 21 and 22, to delete "or a section 9 certification (where the circumstances referred to in section 9(1) apply)".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 103 was already discussed with amendment No. 43. If the question on amendment No. 103 is agreed, amendment No. 104 cannot be moved.
I move amendment No. 103:
In page 12, line 25, to delete "7 days" and substitute "3 days".
Question, "That the figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 104 not moved.
Amendment No. 105 was already discussed with amendment No. 91.
I move amendment No. 105:
In page 12, line 27, to delete "The review committee shall," and substitute "Members of the review committee may, if necessary".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 106 was already discussed with amendment No. 91.
I move amendment No. 106:
In page 12, line 28, after "decision" to insert "attend to and".
Amendment put and declared lost.
Amendment No. 107 was already discussed with amendment with amendment No. 17.
I move amendment No. 107:
In page 12, line 30, to delete "in good faith".
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 108 was already discussed with amendment No. 22.
I move amendment No. 108:
In page 12, line 31, after "risk" to insert ", which may be neither immediate nor inevitable,".
Amendment put and declared lost.
Amendment No. 109 not moved.
Amendment No. 110 was already discussed with amendment No. 22.
I move amendment No. 110:
In page 12, line 32, after “be,” to insert “which may be neither immediate nor inevitable,”.
Amendment put and declared lost.
I move amendment No. 111:
In page 12, to delete lines 33 and 34 and substitute the following:
“(b) in its 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 a medical procedure referred to in section 7(1) or 9(1), as the case may be,”.
Amendment put and declared carried.
Amendments Nos. 112 to 115, inclusive, not moved.
I move amendment No. 116:
In page 13, line 2, after “shall” to insert “forthwith”.
Amendment put and declared lost.
I move amendment No. 117:
In page 13, line 6, after “shall” to insert “forthwith”.
Amendment put and declared lost.
I move amendment No. 118:
In page 13, line 18, after “woman” to insert “and/”.
I hope the Government will not divide on this. Please.
Amendment put:
The Dáil divided: Tá, 56; Níl, 102.
Tá
- Adams, Gerry.
- Boyd Barrett, Richard.
- Broughan, Thomas P.
- Browne, John.
- Calleary, Dara.
- Collins, Joan.
- Collins, Niall.
- Colreavy, Michael.
- Cowen, Barry.
- Crowe, Seán.
- Daly, Clare.
- Doherty, Pearse.
- Donnelly, Stephen S.
- Dooley, Timmy.
- Ellis, Dessie.
- Ferris, Martin.
- Flanagan, Luke 'Ming'.
- Flanagan, Terence.
- Halligan, John.
- Healy, Seamus.
- Healy-Rae, Michael.
- Higgins, Joe.
- Keaveney, Colm.
- Kelleher, Billy.
- Kirk, Seamus.
- Kitt, Michael P.
- Lowry, Michael.
- Mac Lochlainn, Pádraig.
- McConalogue, Charlie.
- McDonald, Mary Lou.
- McGrath, Mattie.
- McGrath, Michael.
- McGuinness, John.
- McLellan, Sandra.
- Martin, Micheál.
- Mathews, Peter.
- Moynihan, Michael.
- Murphy, Catherine.
- Naughten, Denis.
- Nulty, Patrick.
- Ó Caoláin, Caoimhghín.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- Ó Snodaigh, Aengus.
- O'Brien, Jonathan.
- O'Dea, Willie.
- Pringle, Thomas.
- Ross, Shane.
- Shortall, Róisín.
- Smith, Brendan.
- Stanley, Brian.
- Timmins, Billy.
- Tóibín, Peadar.
- Troy, Robert.
- Wallace, Mick.
- Walsh, Brian.
Níl
- Bannon, James.
- Barry, Tom.
- Breen, Pat.
- Bruton, Richard.
- Burton, Joan.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Catherine.
- Byrne, Eric.
- Cannon, Ciarán.
- Carey, Joe.
- Coffey, Paudie.
- Collins, Áine.
- Conaghan, Michael.
- Conlan, Seán.
- Connaughton, Paul J.
- Conway, Ciara.
- Coonan, Noel.
- Corcoran Kennedy, Marcella.
- Costello, Joe.
- Coveney, Simon.
- Creed, Michael.
- Creighton, Lucinda.
- Daly, Jim.
- Deasy, John.
- Deenihan, Jimmy.
- Deering, Pat.
- Doherty, Regina.
- Donohoe, Paschal.
- Dowds, Robert.
- Doyle, Andrew.
- Durkan, Bernard J.
- English, Damien.
- Farrell, Alan.
- Feighan, Frank.
- Ferris, Anne.
- Fitzgerald, Frances.
- Fitzpatrick, Peter.
- Flanagan, Charles.
- Hannigan, Dominic.
- Harrington, Noel.
- Harris, Simon.
- Hayes, Brian.
- Hayes, Tom.
- Heydon, Martin.
- Hogan, Phil.
- Howlin, Brendan.
- Humphreys, Heather.
- Humphreys, Kevin.
- Keating, Derek.
- Kehoe, Paul.
- Kelly, Alan.
- Kenny, Enda.
- Kenny, Seán.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Ciarán.
- Lynch, Kathleen.
- Lyons, John.
- McCarthy, Michael.
- McEntee, Helen.
- McGinley, Dinny.
- McGrath, Finian.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Mitchell, Olivia.
- Mitchell O'Connor, Mary.
- Mulherin, Michelle.
- Murphy, Dara.
- Murphy, Eoghan.
- Nash, Gerald.
- Neville, Dan.
- Nolan, Derek.
- Noonan, Michael.
- 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.
- Spring, Arthur.
- Stagg, Emmet.
- Stanton, David.
- Tuffy, Joanna.
- Twomey, Liam.
- Varadkar, Leo.
- Wall, Jack.
- White, Alex.
Tellers: Tá, Deputies Denis Naughten and Róisín Shortall; Níl, Deputies Paul Kehoe and Emmet Stagg.
Amendment declared lost.
Amendment No. 119 is out of order because it involves a potential charge on the Exchequer.
Amendment No. 119 not moved.
I move amendment No. 120:
In page 13, between lines 18 and 19, to insert the following:
"(2) An advocate for the preservation of the life of the unborn nominated by the Attorney General shall be entitled to be heard by the review committee.
(3) The review committee shall make an application in the prescribed form and manner to the Attorney General requesting the Attorney General to nominate an advocate for the preservation of the life of the unborn.
(4) Where the pregnant woman has not nominated a person to act on her behalf, the review committee shall make an application in the prescribed form and manner to the Attorney General requesting the Attorney General to nominate a person to act on behalf of the woman.
(5) The Attorney General shall nominate an advocate of for the preservation of the life of the unborn and, if requested to do so under subsection (3), a person to act on behalf of the woman without delay and no later than 48 hours from the receipt of a request under subsection (3) and/or subsection (4) as the case may be.
(6) The woman, the representative of the woman and the advocate for the preservation of the life of the unborn shall be entitled to review all documents and information being considered by the review committee and to be heard by the review committee, but subject to the restriction that the advocate for the preservation of the life of the unborn shall not be entitled to cross-examine the woman.".
Amendment put and declared lost.
Amendments Nos. 121 and 122 are out of order.
Amendments Nos. 121 and 122 not moved.
Amendment No. 123 arises out of Committee proceedings. Amendments Nos. 123 to 127, inclusive, 139, 141 and 145 are related, No. 124 is an alternative to No. 123 and all may be discussed together.
I move amendment No. 123:
In page 14, to delete lines 2 to 19 and substitute the following:
"15. The Executive shall, for the purpose of monitoring and collecting data on the performance of medical clinical procedures, collect information on the functioning of Chapters 1 and 2 of this Act in accordance with standard Hospital In-Patient Enquiry procedures recognised by the World Health Organisation and in use by the HSE.".
Instead of the current wording in the Bill which we believe to be intrusive and objectionable from many points of view the amendment proposes the inclusion of more standard procedures that are already recognised and in existence.
It is clear that the Bill is locked down and that because it has taken us so long to reach this point, the Government has decided not to accept any amendments whatsoever. That is a pity, particularly as there have been many non-contentious, constructive and positive amendments which could have improved the legislation. Amendments Nos. 124 and 125 in my name relate to the amount of information the Minister can receive in the future.
It creates transparency for the Minister to be able to measure and manage the process better. When a Minister is trying to review and ensure the system is running properly, fairly and honestly, the more information he or she has the better. The amendment seeks to establish the total number of certifications under sections 7, 8 and 9, respectively; the nature of each medical procedure certified under sections 7, 8 and 9, respectively; the period of gestation of the unborn in respect to whom each medical procedure was certified under sections 7, 8 and 9, respectively; and the outcome for the pregnant woman and her unborn in respect of each medical procedure certified and carried out under sections 7, 8 and 9, respectively.
I cannot envisage any circumstances in which a lack of transparency would be of benefit to the Minister, the Government and the State in analysing the outcomes of the legislation. I have tabled the amendments in an effort to be constructive. We are coming to the final element of the Bill and I ask the Minister to consider accepting the amendments.
I echo Deputy Tóibín's comments on the complete absence of any kind of generosity or collegiality in the handling of this legislation. The Opposition tabled 155 amendments. Everybody in the House has put considerable work into this important legislation and yet not a single Opposition amendment has been allowed throughout the entire debate. It displays an extraordinary arrogance on the part of the Government as if it had some kind of monopoly on wisdom. It is not prepared to work with other Members of the House and take on board issues that are raised, even the most minor ones.
The display we had in the previous division says it all regarding the attitude that has been displayed. Most people probably do not know what that division was about. It was to allow a woman to bring someone with her when she goes before the panel.
She can.
I ask the Deputy to deal with the amendment before the House.
The Minister thought that was provided for and it turned out he was wrong.
She can.
He did not even allow that minor change to insert "and/" into the Bill. It indicates the kind of knife-edge on which the Bill was agreed between the two parties in Government. Clearly the political imperative was that there would be no changes irrespective of the arguments made because it had been hammered out somewhere else. That is really regrettable and like the shambles of last night, it brings the House into disrepute.
What shambles?
The shambles of the failure of the Government to order business yesterday-----
How is this related to the amendment before us?
I have said that already.
-----and people sitting until 5 a.m.
A personal rant, as usual.
Deputy Shortall without interruption. I ask her to speak to the amendments before the House.
I think the comment by the Minister, Deputy Howlin, might suggest that being up to 5 a.m. did not suit him.
It suited me just fine.
Without interruption, please
This amendment is about the reporting and notification mechanism in the legislation, which is really important for most people. As was discussed at the hearings and on Committee Stage, legislating in this area is a new departure in many ways. I have already said I do not believe it is the intention of the Minister or the Government to introduce any kind of liberal regime, but because of the nature of the legislation's provisions there is obviously a concern that it may lead to a significant increase in the rate of terminations, which most people do not want to see. It is impossible to say at this stage what the impact of the legislation will be. For that reason it is important to have a very clear notification system so that as legislators we know the impact of the legislation through periodic reports.
The legislation provides for a certain amount of reporting. In addition to those covered in sections 20(3)(a) to (d), inclusive, I am suggesting adding two other categories which would provide for an anonymised reporting arrangement outlining the stage of gestation at which terminations take place and the outcome for both the woman and unborn. It is reasonable for us to have access to that information, which would, of course, be entirely anonymised. On the basis of those notifications and the information that is gathered, the Minister should prepare an annual report on it. I believe that amendment strengthens the section and gives people a clearer picture of the impact of the legislation.
My understanding of the additional amendment tabled by the Minister is that it greatly weakens the reporting arrangements. I will talk about that when we deal with the Minister's amendment which will be taken next. I believe my amendment No. 145 strengthens the legislation and provides a clearer and more comprehensive picture of the impact of the legislation. I believe it is reasonable and I hope the Government might consider supporting it.
I support the broad thrust of these amendments. In concurrence with the previous speaker, I do not necessarily believe this legislation will open the floodgates. That was never the basis on which I opposed it. Experience elsewhere has shown that it has but I do not know if it will do it in this case. We have a wonderful mechanism for collecting statistics of every sort through the Central Statistics Office, including the import and export of foodstuffs, drink and alcohol. We have a statistic on virtually everything. It is really important to have these statistics so that we can see what is happening. I cannot think of any logical reason - perhaps the Minister of State will present one - as to why the thrust of these amendments are not to be accepted.
At the hearings when I put a question to the Chief Medical Officer and Secretary General of the Department about minors in the care of the HSE who had gone abroad under the X case grounds on the issue of suicide, I was alarmed to be told they did not have or did not keep such statistics. Through a series of parliamentary questions I eventually got the information. Does that not tell us something about what we think of children in care if we did not have an immediate statistic for such a matter when I can get a result on virtually any aspect of Irish society? This is not a prurient set of amendments, but ones which would enable people to understand the impact of the legislation so that it can be policed.
I again reiterate the bona fides of the two Ministers present. However, they might not necessarily always be there. I am always wary of ministerial assertions as Ministers come and go. I strongly support the amendments which have been tabled in good faith in a constructive and positive manner. I ask the Minister of State to go some way to meeting some of the concerns of those on the opposing side of the House.
Section 20 of the Bill covers the area of notifications and sets out in some detail the records which are to be kept on procedures carried out under the legislation and the contents thereof. It is my belief that section 20 as it stands more than adequately covers the amendments proposed by the Deputies and therefore there is no need for the detail proposed. For this reason, I cannot accept these amendments.
The topics of notification in section 20 are fewer than the topics of notification in my amendment. This would be the first Minister for Health to refuse the full collection of information in this regard. One cannot manage if one cannot measure. These are important statistics which will identify how the process will be delivered.
I can only conclude that in seeking less information, the Minister does not want to see the information as to how the legislation is being implemented. I cannot understand why the Minister does not want to see the outcome for a pregnant woman and her unborn child in respect of every certified medical procedure carried under sections 7 to 9, inclusive. How will we be able to know if a termination resolved suicidal ideation or not? Maybe the outcome will reflect the international medical evidence that suicide ideation increased as a result of an abortion.
I can only conclude that by not wanting the information there is an effort to not want to get to the heart of how this legislation will operate.
Apart from a blanket “No”, will the Minister explain why he would be against making statistical information available relating to the stage of gestation at which terminations take place and the outcome for the woman and for the unborn? This is standard statistical information that should be made available to the health authorities, as well as the Houses of the Oireachtas. Given the Minister’s refusal to engage in this and to provide any explanation as to why he will not provide that information, we have no option but to have concerns about the secrecy element that is surrounding the information. It is important information which will be of interest to many. I cannot imagine why he would refuse to make that information available.
I am disappointed by the Minister’s response. If, as the Government purports, this legislation is progressive about saving women’s lives, surely we should be able to see its outcomes.
I have nothing further to add.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 124 to 127, inclusive, not moved.
Amendment No. 128 is out of order as it involves a potential charge on the Exchequer.
Last evening the Minister indicated he would address the matter dealt with in this amendment. My understanding on Committee Stage was that he had indicated a willingness to present an accommodation for aftercare and optional therapeutic counselling services for women who have had terminations.
Several colleagues have objected to the fact that no amendment of any shape or form has been accepted by the Minister during this long process. On Committee Stage, there was only one positive indication from the Minister which concerned this matter.
Yesterday evening, he quoted from the "Blacks" of Committee Stage stating he had not committed to this amendment but would refer to it. I have yet to check the "Blacks" but I really believe this is all just semantics. At the end of the day, it demonstrates even further the total blinkered approach of the Government to very sane and sensible proposals put forward by Opposition Deputies.
We cannot have a discussion on it. The amendment has been ruled out of order.
Amendment No. 128 not moved.
I move amendment No. 129:
In page 14, between lines 21 and 22, to insert the following:
“16. Nothing in this Act shall operate to make lawful the direct, intentional ending of unborn human life during the period of time commencing 12 weeks after implantation of that unborn life in the womb of a woman and ending on the complete emergence of that life from the body of the woman.”.
Amendment put and declared lost.
I move amendment No. 130:
In page 14, to delete lines 23 and 24 and substitute the following:
“16. (1) Nothing in this Act shall operate to affect any enactment or rule of law relating to consent to medical treatment or shall serve to invalidate any consent given prior to its enactment.
(2) The consent of the woman shall be required for treatment except where, in the opinion of the medical practitioner responsible for her care and treatment, the treatment is necessary to safeguard her life and she is incapable of or is obstructed in giving such consent.
(3) The consent of a minor who has attained the age of 16 years to medical treatment which, in the absence of consent, would constitute a trespass to her person, shall be as effective as it would be if she were of full age; and where a minor has by virtue of this subsection given an effective consent to medical treatment it shall not be necessary to obtain any consent for it from her parent or guardian.
(4) A medical practitioner, subject to the provisions of this Act and in accordance with the provisions of Article 42A.2.1° of the Constitution of Ireland, in an exceptional case concerning a minor who has not attained the age of 16 and whose parent or guardian does not consent to the provision of medical treatment to her under this Act, may carry out medical treatment necessary to avert what is a real and substantial risk to the life of that minor.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 131:
In page 14, line 27, to delete “medical practitioner, nurse or midwife” and substitute “person”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 132 not moved.
I move amendment No. 133:
In page 14, line 28, to delete “or 9(1)”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 134:
In page 14, line 29, to delete “objection.” and substitute the following:
“objection, provided that—
(a) his or her refusal to participate in the carrying out of such a medical procedure does not cause an immediate risk to the life of the woman, and
(b) in the case of a medical practitioner, he or she shall forthwith—
(i) provide all relevant information to the woman about her right to such medical treatment, and
(ii) refer or transfer the woman to the care of another medical practitioner where such a medical practitioner is competent and readily available to participate in the carrying out of such a medical procedure.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 135:
In page 14, to delete lines 32 to 34 and substitute the following:
“(3) Notwithstanding the provisions of this section, it shall be the duty of every appropriate institution to ensure the necessary number and category of medical practitioners, nurses and midwives are made available and are not obstructed in carrying out of such a medical procedure as are governed by this Act.
(4) No appropriate institution shall refuse to provide medical treatment to a woman under the terms of this section.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 136 to 138, inclusive, not moved.
I move amendment No. 139:
In page 15, to delete lines 16 to 37, and in page 16, to delete lines 1 to 32 and substitute the following:
“20. The Executive shall, for the purpose of monitoring and collecting data on the performance of medical clinical procedures, collect information on the functioning of Chapters 1 and 2 of this Act in accordance with standard Hospital In-Patient Enquiry procedures recognised by the World Health Organisation and in use by the HSE.”.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 140 to 145, inclusive, not moved.
I move amendment No. 146:
In page 16, line 24, to delete “subsection (1)” and substitute “subsection (4)”.
This amendment considerably weakens the reporting arrangements. The Bill states the Minister shall arrange for a report to be laid before both Houses of the Oireachtas in accordance with section 20(1). This subsection is fairly detailed and would provide much important information. Unfortunately, for some unknown reason the Government proposes to amend this so that the reporting would be in accordance with section 20(4) which is much more restrictive and basic. This very much flies in the face of the claims made on Committee Stage about the reporting arrangements that they would be open. It is a strange amendment. It closes down information and makes the arrangement more secretive. I am interested to hear the Government’s rationale behind this amendment.
I agree with Deputy Shortall. Section 20(1) gives the opportunity to have more, fuller and clearer information than section 20(4).
This amendment is concerned with section 20(1) of the Bill, which amends section 9 of the Health Act 2007, to provide for situations in which there is a serious risk of a failure by an institution to comply with the provisions of the Protection of Life During Pregnancy Bill 2013-----
What amendment are we dealing with?
Amendment No. 147.
It is amendment No. 146, in your own name.
I am sorry. I was misdirecting myself. I did not have a note in front of me in respect of this amendment. When Deputy Shortall was making her submission, I was trying to listen to what she was saying, and I was also attempting to take some instructions. I read the wrong note, so I am a little bit thrown by this. I do not mean any disrespect to the Chair, to Deputy Shortall or to the House.
Section 20(5) states that the Minister "shall arrange for a report laid before both Houses of the Oireachtas in accordance with subsection (1) to be published in such form and manner as he or she thinks appropriate as soon as practicable after copies of the report are so laid". It is a purely technical amendment that corrects a mistake in the text of the Bill. This is a proposal simply to delete subsection (1) and replace it with a reference to subsection (4). This was always the intention of the Minister, but it was incorrectly drafted in the version that was actually circulated.
It is not actually a technical amendment. We were given to believe that there would be a notification process that collected data under a number of different headings, and there would be a reporting mechanism on that data, which is really important data and many people would be interested in seeing it on an annual basis. It is pretty critical to this Bill. That was the understanding, but the Minister is now restricting that and it is to be reported under subsection (4), which is much narrower in its provision and does not set out any headings under which the Minister will report. The Minister will decide what information he is going to provide. That would again raise concerns about the secrecy surrounding the impact of this legislation. In the interests of openness and transparency, so that we are all clear about the impact of this Bill, I think that the Government amendment is not acceptable. It would be far preferable for everybody that we would have the information set out in subsection (1).
If the Deputy were to look more closely at section 20(1) and section 20(4), she would see that it must never have been the intention to refer to subsection (1) and that it must always have been the intention to refer to subsection (4). Section 20(5) states that the Minister "shall arrange for a report laid before both Houses of the Oireachtas in accordance with subsection (1) to be published in such form and manner..", and we are saying that this should refer to subsection (4). If we look at subsection (4), it refers to a report to be laid before each House of the Oireachtas. There never was any reference in subsection (1) to a report being laid before the Oireachtas, so it manifestly is a typo. All we are doing is correcting it.
In fairness, the issue is the scope of the report and not the report itself.
Amendment put and declared carried.
I move amendment No. 147:
In page 16, to delete lines 33 to 39, and in page 17, to delete lines 1 to 32.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 148 and 149 not moved.
Amendments Nos. 150 to 155, inclusive, 157 and 158 are related and may be discussed together.
I move amendment No. 150:
In page 17, to delete lines 33 to 39, and in page 18, to delete lines 1 and 2 and substitute the following:
“Offences
22. (1) It shall be an offence—
(a) to intentionally or recklessly end a pregnancy without the consent of the pregnant woman,
(b) for a person other than an appropriately qualified practitioner to perform a surgical medical procedure for the purposes of ending a pregnancy.
(2) Notwithstanding the provisions of subsection (1) of this section—
(a) no pregnant woman, or third party facilitating or assisting her, shall be held criminally liable for procuring or carrying out a medical procedure that leads to
the ending of a pregnancy, and
(b) no appropriately qualified practitioner shall be held criminally liable for carrying out a medical procedure that leads to the ending of a pregnancy.
(3) A person guilty of an offence under this section shall be liable under indictment to a fine or imprisonment for a term not exceeding 14 years, or both.
(4) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions.".
This is in respect of the 14 year jail sentence for a woman or someone who assists a woman in acquiring abortion in this country outside the structure of this Bill. This replaces the 1861 Act, which is one of the most draconian Acts left in Europe, and even outside of Europe because most of Britain's former countries are outside Europe. For example, India got rid of this Act in the 1960s, as did a raft other countries.
This is the section of the 1861 Act which provides the chilling factor that the European Court of Human Rights stated should be removed. It should not be in any right minded society. The Government has a great opportunity to remove the 1861 Act completely, but instead it is replacing it with a 14 year jail sentence. If a young woman took an abortion pill, found herself in difficulty after taking that pill, had to attend an accident and emergency department, was asked if she took an abortion pill and answered in the affirmative, could her case be brought before the Director of Public Prosecutions and an action taken against her? It is not a crime as the abortion pill can only be taken up to nine weeks.
We had the opportunity to get rid of that Act completely. There is a hypocrisy in this country where we threaten to jail women if they procure an abortion here, but we do not mind giving them information and they can travel to Britain and do the exact same thing. If it is a crime here, why are we giving information to women to travel to have an abortion in Britain? The hypocrisy of it is amazing. People talk to me about the unborn and repugnancy. I find this one of the most repugnant aspects of this Bill.
The people voted for it to be in the Constitution.
I ask the Minister to take the opportunity to remove it or to give a commitment that he remove it in the near future.
Along with the number of medics diagnosing suicidal ideation, the lack of clarification of the definition of the unborn, and the lack of clarity for the medical profession in respect of the imminent threat to the life of a woman, this is another section which makes this the most unique law in Europe.
It is the most repugnant part of the legislation and it should be removed. It is one of the reasons I cannot support the Bill as a pro-choice activist. I cannot see how any progressive person in the Labour Party can support it.
As Deputy Joan Collins has noted, there is no requirement for the Government to criminalise women or doctors in the way proposed. I have no doubt that an attempt will be made to argue that the Government has dealt with sections 58 and 59 of the Offences against the Person Act 1861. That Act provides that where a woman attempts to procure a miscarriage herself or with the assistance of another through the administration of poison or other instruments, she shall be guilty of a felony and, on conviction, shall be liable to penal servitude for life. That provision has had a chilling effect and it is reprehensible. I welcome its removal from the Statute Book, but why is it being replaced with another criminal conviction? Instead of penal servitude for life the language is being modernised but, in effect, anybody deemed to have had what is described as an unlawful abortion or who assists another in such a procedure will be criminalised and sentenced to up to 14 years in prison.
An issue clearly arises with back-street abortions. While some Deputies propose to delete the entire section, Deputy Joan Collins and I have allowed for the criminalisation of those who perform back-street abortions. These are individuals who do not have the consent of the woman and lack the medical qualifications necessary to carry out a procedure. It is legitimate to argue that a criminal sanction would apply in such circumstances in any event but, in case the Government is worried that the removal of the aforementioned offensive sections of the 1961 Act will somehow facilitate back-street abortions, we have provided explicitly for them. Our amendment provides that the woman and any third party who, with her permission, tries to assist her or a qualified medical practitioner shall be exempt from criminal sanction. This is important. The question was raised as to whether somebody presenting to a hospital after taking abortion pills will be reported and potentially criminalised. I do not doubt the Minister will deny that such circumstances could arise but evidence already exists to suggest that women who present to hospitals with miscarriages after self-administering abortifacients are not being questioned because of fears of what the answer might be. This means women are exposed to a lack of protection in terms of aftercare and hospitals are hamstrung in asking questions about the cause of the problem. In this era of Internet medication, who knows what a person might take?
This provision does not protect women's lives and it will have a chilling effect. Doctors, psychiatrists and other medical practitioners will have to make a decision on protecting a woman's life while looking over their shoulders. I am sure we will be told they do not have to look over their shoulders, but if any of them listened to the debate on previous amendments, they will be looking over two shoulders. Certain Deputies proposed that information be gathered for the purpose of transparency, almost to the extent that the Houses of the Oireachtas would close down business in order to examine medical procedures relating to all aspects of a pregnant woman's condition. I was beginning to wonder whether they would demand lists of how many varicose veins had been removed. Should we be examining all of these medical practices in our hospitals? No, we should not. These are medical procedures administered by medical practitioners. They are routine and private health matters. The idea that the Oireachtas would examine such procedures is ludicrous. Deputy Timmins let the cat out of the bag when he asked how else were we to police the legislation. That is a disgusting approach to legislation designed to protect women's lives.
The Bill retains the prospect of criminalising women and, potentially, doctors. That is not indicative of a modern society. It is indicative of hypocrisy, given that we allow people to travel and give them information. If this provision is justified on the basis of constitutional requirements, the onus is on us to change them. This issue was first put to the people 30 years ago and nobody who is now under the age of 48 was able to vote on it, while many of those who did vote are now dead. Can we please move on and reflect the society we now live in and the reality that thousands of women access abortions every year?
I am speaking on amendments Nos. 153 and 157. I have previously pointed out that neither side of the debate is prepared to engage with the arguments of the other side, preferring instead to deal in caricatures. This is a dialogue that has emerged over the past several weeks, with very few people listening. Section 22 of the Bill is a case in point. It has been argued that the 14-year sentence was proposed as a sop to pro-life groups. This is ludicrous. When I speak to pro-life and pro-choice camps, both tell me they do not want the legislation to provide for a jail sentence of 14 years. The idea of such a sentence hanging over a woman in a distressed or vulnerable situation is appalling. It contradicts the imperative of compassion and understanding. I cannot see how any Deputy could support the threat of 14 years in prison against a woman in such distress.
I appreciate the constitutional difficulties that arise for the Minister in accepting amendments on these grounds but I appeal to him to address this issue in another way. The Bill goes some way to providing strict liability. I urge the Minister to introduce an amendment in the Seanad to further define intentionality within the relevant subsection to ensure any prospect of a lengthy sentence is unlikely to affect a woman. However, there is another option. The Minister could frame a section that explicitly provided that only medical professionals or other third parties would have liability in this respect. He could be silent on the matter as it concerns the woman.
This is the second occasion since I was elected that I have been involved in a debate that dragged on into the early morning. I woke up this morning to messages from people across the country who believed this House was akin to a gentleman's club in the way we arrive at legislation. It is no wonder, as we speak about the prospect of jailing women, that women do not get involved in politics. I appeal to the Minister to address the concerns I and many other have expressed about this section.
I ask him to look at positive solutions over the course of the next few days. Many Deputies have spoken to him and in the House about guarantees and understandings they have received from him in hour-long chats, but these only hold good while he is in office. We have no idea what he said to them or what the future holds. The only guarantee we can give is that we can compose legislation wherein we can ensure clarity. The legislation must have guarantees for women, but the Minister must ensure the prospect of a 14 year jail sentence-----
You voted against it.
Pardon.
Through the Chair, please.
Ms X will be 35 years old this year. She was 14 years old when she found herself in this situation. The notion was expressed by other Deputies, in particular Deputy Áine Collins, that this proposal would be absolutely unacceptable. It is clear across the House that there is a need for compassion from the Government in looking at an amendment in this area. I ask the Minister to look at the spirit and intention of my amendment.
We have discussed different issues regarding the possible termination of pregnancies and the Minister has argued it is not possible to deal with them owing to constitutional difficulties. However, this was an area he could have addressed. With this new legislation, there was no reason he should have left this draconian law in place. Current criminal law does not deter women from resorting to the importation of medication which may be used incorrectly and without medical supervision or a prescription for antibiotics, as is the protocol when this medication is used in countries where it is lawful. The law does, however, deter some women in such circumstances from seeking medical advice where post-abortion complications arise. Delay in seeking medical advice may result in a risk to women's health or, in certain circumstances, her life.
In addition, criminalising abortion shifts the burden of realising the right to health away from the State and onto pregnant women. Those women who travel to the United Kingdom for terminations, for all reasons, report significant physical, financial and psychological hardship and a sense of shame, isolation and stigma when they seek health services abroad that are criminalised in Ireland. Criminalising abortion stigmatises and isolates women and denies them appropriate, accessible and affordable health services. It results in a lack of consistency and accountability in the delivery of health care services, a lack of training and skills development for doctors, a lack of continuity of care for women and significant constraints on the ability of doctors to act in their patient's best interests.
Criminalisation of abortion in Ireland imposes financial, psychological and physical hardship on women. It acts as a form of discrimination and intersects with other forms of discrimination to further disadvantage vulnerable and marginalised women. The women and girls who experience most difficulty are those who are already marginalised and disadvantaged such as those with little or no income; women with care responsibilities; women with disabilities; women with a mental illness; women experiencing violence; young women; migrant women; and women asylum seekers. In the Irish context, the criminalisation of abortion gives rise to particular concerns because abortion is only lawful to save a woman's life as distinct from her health. No other country in Europe makes the distinction made in Irish law, permitting abortion to save a woman's life but not to preserve her health. The distinction is clinically virtually impossible to make, but the Protection of Life During Pregnancy Bill requires doctors to make it. This, in effect, requires them to wait for a clinical case to deteriorate until the risk to health becomes life-threatening. In the process, a woman's life may well be endangered or lost.
In the context of a fear of criminal prosecution, therefore, medical service providers are effectively prevented from exercising clinical discretion in their patient's best interests and applying best clinical practice and intervening when a serious health risk presents. The idea that we are fine with 4,000 women a year travelling to England to have an abortion but are not fine with their getting a pill in the post to deal with the same issue is strange. It appears to be okay for them to get on a boat and get the pill in England and take it before they get back on the boat or the Ryanair flight. Is that fair and practical? Is it rational? Will the Minister try to justify why the Government has not dealt with this draconian provision in this new Bill? I find it difficult to believe the Minister believes it is a good idea that a woman who takes an abortion pill she buys on the Internet could spend up to 14 years in jail for doing so. Will he explain to me how he thinks this could possibly be right?
There is no justification whatsoever for criminalising abortion. I do not know what exactly is the Fine Gael Party political position. There are probably mixed views within the ranks on the issue. However, I always understood the Labour Party was a pro-choice party and that it believed, whatever about the legal and constitutional limitations, abortion was a valid choice for women and that they had such a right. It seems incomprehensible to me that a party that describes itself a pro-choice and believes abortion is a valid option for women in a range of circumstances could, at the same time, support the criminalisation of abortion and women who procure abortions or doctors who provide them with such a service. That is incomprehensible and it beggars belief it could even suggest this.
We are not discussing the politics of any party. I ask the Deputy to speak to the amendment.
This is about criminalisation.
Yes, but we are not dealing with parties.
He had to get that in.
Yes, because I genuinely find it hard to believe.
That would be all right on Second Stage but not on Report Stage of a Bill such as this.
I am genuinely shocked. On Committee Stage the Government was asked on a number of occasions whose idea this was. Again, whose idea was it?
The people of Ireland, unfortunately.
No, the people of Ireland did not at any point express a desire for a 14 year prison sentence for women who procured abortions or for those who provided such a service. The only possible justification there could be for the criminalisation of abortion is, as Deputy Clare Daly mentioned, the practice of back-street abortions. That is the only justification. However, that is not a justification because to perform an abortion on a woman without her consent would be a most serious criminal offence and a grievous assault, resulting in grievous bodily harm and God knows what else. It is already a crime. Similarly, it is a crime for somebody who is not a qualified medical practitioner to carry out an abortion. Therefore, there is no necessity to include this provision in the Bill.
The most obnoxious aspect of this provision is not even the chill factor which it will undoubtedly maintain for doctors in making decisions in the interests of women's health and lives. It will undoubtedly weigh on their minds that if they act outside these very unclear guidelines as to when, how and where they can intervene to protect a woman's life, they could be guilty of a criminal offence and subject to a penalty of 14 years in prison. That certainly will have a chilling effect. Setting aside even that, however, the most obnoxious aspect of this provision is the issue of stigma. The Minister knows what I am saying. Anybody who claims to be pro-choice and respects the fact that abortion is a valid choice for women in some or all circumstances knows that the question of stigma is a very serious consideration.
This provision very clearly says something to the thousands of women who travel to Britain every year for abortions. They do so for all sorts of reasons - because they have been raped, because they have a pregnancy which involves a fatal foetal abnormality, because they are facing inevitable miscarriage, because their health is threatened or because they feel they are too poor, too old or too sick to have a baby. This provision says to these women that what they are engaging in is a form of criminal activity and that the people who are providing them with the service are criminals. The Government is maintaining that stigma which is so damaging to the psychological welfare of women. As the Minister knows, one of the major points made by the women involved in Terminations for Medical Reasons when they made their presentations to Members of this House was how horrible it was, faced as they were with a diagnosis of fatal foetal abnormality during the course of a wanted pregnancy and having to travel to Britain for an abortion, to know, in addition, that what they were doing was considered criminal in the State. This provision maintains that aura and stigma of criminality around what they and other women have done and will do in the future.
I know the Minister does not believe for one minute that what women in that situation have done is criminal. In fact, I hope he does not believe for one minute that the thousands of women who travel every year to Britain are engaging in something that is criminal, yet the Bill says that to undergo that procedure in the State is a criminal act. The women who travel to Britain do not live in a parallel universe where they will have the procedure performed there, where it is not criminal and then come home without a full awareness that what they have done is deemed a criminal offence in this jurisdiction for which they could face a prison sentence of 14 years.
The Deputy has made his case. There is no point in engaging in repetition on Report Stage of a Bill. Instead of making a Second Stage speech, he should focus on the amendment.
Thank you, a Cheann Comhairle.
I ask the Deputy to speak to his amendment.
The point I am making is about criminalisation. I do not see what could be clearer.
The Deputy has made his point. The debate is due to end at midnight and many other Members wish to speak.
I was just about to finish. I am, however, perfectly in order and do not see why the Ceann Comhairle had to cut across me.
The Deputy is not perfectly in order; moreover, he consistently engages in checking the Chair. When I tell him something, I am telling him what is in Standing Orders, not what Seán Barrett says.
What is in Standing Orders?
No repetition is allowed on Report Stage.
Where have I engaged in repetition?
The Deputy cannot go on and on.
(Interruptions).
I was making a point about stigma.
This is Report Stage. It is a different issue.
I know the Government does not want to hear what I am saying.
(Interruptions).
The Deputy is making the same point ad infinitum.
I ask Deputy Richard Boyd Barrett to complete his contribution.
The Government refuses to deal with this most important of issues. It is shameful that it would seek to maintain the criminalisation of women for doing something which is their right.
We have heard the Deputy's point.
We are coming very near to the end of this mammoth legislative debate. I will try to be concise because I know other Members wish to speak.
It is utterly unacceptable that we would criminalise women in this day and age where they have undergone a termination in the State in circumstances that are not permitted under current legislation. I remind the Minister and Ministers of State that they are criminalising women faced with fatal foetal abnormalities, suffering inevitable miscarriage, who are victims of rape and incest who might avail of a service in the State, and who determine, after a difficult consideration, that it is in their best interests to have a termination. Should any of these categories of women opt to have a termination in the State, they could, under this provision, be put in jail for 14 years. It really is appalling. We must remember that the State facilitated a referendum to allow safe passage out of the State for women in this predicament to have a termination in another jurisdiction. Allowing that situation to continue amounts to major hypocrisy.
Some of the women who have made that journey gave their testimony to the Government and other Members of the Oireachtas. They spoke about how they had felt alienated and traumatised as they left the State to undergo a medical procedure, at great expense, in another country. The Government does, in fact, recognise the problematic nature of this provision by way of the inclusion in section 22(3) of the condition that a prosecution for an offence under the section may be brought only by or with the consent of the Director of Public Prosecutions. It is merely a safety net for the State, a way to save the Government's blushes in the event that a situation is stumbled upon where a woman would actually be prosecuted. If that were to happen, there would be outrage among ordinary, decent people in this society and great embarrassment to the Government, in the same way that the Government in 1992 was deeply embarrassed as a result of what had happened to the unfortunate victim in the X case. The provision has been included to try to alleviate such an eventuality or prevent it from happening.
The reality, of course, is that if we did not have the safety valve of the availability of safe terminations in Britain and if, instead, back-street abortions were taking place here, with the inevitable tragedies that would result, abortion would have been decriminalised long ago because the people would demand it be done. I hope the Government will accept the amendment to remove this barbaric criminalisation which should have no place in the legislation.
The penalty of 14 years in prison and an unlimited fine is an extraordinarily onerous sanction. It does, without question, carry forward the chilling effect deriving from the Offences Against the Persons Act 1861 into the new legislation. The European Court of Human Rights, in its deliberations in the case of A, B and C v. Ireland, paid significant attention to the threat of criminal prosecution under the 1861 Act, the severity of sentences likely to be imposed on conviction and the chilling effect this had on clinicians in terms of their willingness to make a determination and treat women in need of lawful termination services.
That is a key issue. To impose a 14 year sentence opens up the prospect of a challenge that may be successful. The criminalisation of pregnant women under the provisions is likely to act as a significant deterrent to women seeking services under the Bill. Several Members have said women will continue to go to Britain even where there is an entitlement under the Constitution. It could open up the State to further prosecution under the European Convention on Human Rights. A remedy that is not accessible is not a remedy and so it is tantamount to no remedy in international law. Deputy Collins referred to people going to other jurisdictions so I will not labour that point. We are all getting tired and coming towards the end of the debate.
In setting out such a punitive regime pertaining to unlawful terminations, clinicians are likely to err on the side of refusing to certify women seeking terminations under the Bill in order to have certainty of avoiding prosecution. I did not think that was what we were trying to achieve. I have serious concerns about the sanctions. I do not understand why the standard sanctions that apply to clinical malpractice do not apply in this case. It is extraordinary and almost unique that this is treated in a separate way.
Criminal sanction is warranted for backstreet abortions or where people are unlicensed. It is intended only to address the likes of clandestine medical institutions with untrained and unlicensed people. It is reasonable that the kind of sanctions here will make the legislation a great threat rather than an enabling item of legislation for women to get something they are entitled to under the Constitution.
There could be unintended consequences. We may find unsafe practices, such as women taking large amounts of the contraceptive pill or a rolling back of the availability of contraceptives where people look for alternative solutions. The sanctions are out of keeping with an honest approach even in a highly restricted sense. I am concerned we are opening ourselves up to other challenges, some of which are likely to succeed.
Amendment No. 153 seeks to exclude the criminalisation of the pregnant woman. It seeks to differentiate the pregnant woman from any others involved in assisting her. The proposal to criminalise the pregnant woman and to make her subject to a 14-year prison sentence is inhumane, barbaric and anachronistic. It is indefensible and should be removed from the legislation. The 14-year sentence is, in itself, extraordinary. In recent years in the court system, prison sentences for the heinous crime of rape and manslaughter have been significantly less than 14 years.
At the committee hearings and in the debate tonight, the Minister said he is obliged by Article 40.3.3° of the Constitution. The Irish people did not vote for or instruct any Government to criminalise pregnant women involved in these situations. They did not vote for or instruct to propose a 14-year sentence in such situations. The section criminalising the pregnant woman is inhumane, barbaric and anachronistic and should be deleted.
As on Committee Stage, I seek to include the wording "other than the pregnant woman" in section 22(2), in other words, a person other than the pregnant woman guilty of an offence under this section. The purpose and intent of the amendment reflects the overwhelming opinion of Irish people today. It is not unique to those who argue from a pro-choice point to view, in terms of care and compassion to a woman who faces a crisis situation in pregnancy and whatever steps she may take, nor is it unique to the huge swathes of middle ground opinion. It is also reflected among a considerable number, if it is not the majority view, among those who describe themselves as pro-life. I have met it, heard it and listened to it and accept it is a view that straddles the range of opinion that reflects on the issues at the heart of this legislation.
As with Murphy's Law, it is only a matter of time before a situation presents in our courts with the unwanted consequences of this provision unfolding before our eyes. On Committee Stage, I instanced a pregnant young girl accessing tablets on the Internet, taking them, finding herself unwell and presenting in hospital. Where does the legislative provision place medical practitioners in respect of a variety of situations, such as the attempt at an end of life situation on the establishment of the fact that she had taken abortifacient tablets?
Many circumstances can present and it is the loneliness and the aloneness of that young girl that will challenge everyone here. It will underscore how inappropriate is this provision as it presents and provides for.
I accept fully that these provisions are necessary in terms of those who would carry out illegal abortions in this country in whatever setting, but there is no outright cry or demand for the criminalisation of women who seek or secure abortions. The contrary is the case. Irish people, as I have stated, from all opinion on this issue, are broadly of the same mind, that they do not want to see the woman or girl criminalised.
Members spoke of what happens in this State and of women having to travel to Britain. Accessing the tablets on the Internet and possessing them is not an offence. The offence would be if the young woman then took them, being pregnant, here in this jurisdiction. What are we saying to women here who take possession of these tablets for that purpose of ending the pregnancy, that they should go north of the Border for the glass of water? It is bizarre.
While I can anticipate the response that the sentence is up to 14 years, it is not prescriptive and it will not be 14 years, the other night I listened to an eminent pro-life voice on the television argue that this situation will never arise and the courts would never prescribe a sentence in the sets of circumstances that I and others here outlined this evening.
May I remind the Deputy there are four other speakers plus the Minister?
There are. I am speaking in my first contribution on this important matter of criminalisation.
I am merely saying there are 20 minutes left.
I want to finish my arguments on why this should not be in the Bill.
I reject the empty assurances of voices on the television screens who state this will never present, that the courts would never decide so. The prescription is in the legislation. I am afraid it could well happen and my fear is that it will. Just as assuredly as, in 1992, the X case presented, there will be situations that the Minister will not be able to anticipate, but he can be sure that, if it can happen, it will. We are leaving ourselves open to a very sorry vista indeed.
Women should not be criminalised in this situation. I commend, however imperfect, the formula I and others presented to arrive at a situation that there would not be such within this legislation. I commend it to the Minister, in the spirit of the appeals across the House. Let me point out again that those who have spoken in support of this position today already reflect right across the spectrum of opinion on this issue and on this Bill.
I will ask some questions first to gain a little clarity in the context of the amendments, and I await the Minister's reply.
As we all will be aware, we are obliged inside here to uphold the Constitution. First and foremost, Article 40.3.3° is quite clear. We must vindicate the right of the unborn as well. I think we must bring it back and I want clarity from the Minister. Are there age limits on this? Is there an age limit as to when a woman decides to procure abortifacients on the Internet? What about, for example, a 14 year old girl who is pregnant? A cursory Google search on the Internet can secure abortifacient tablets. One hit describes how one takes them, it describes the side-effects, it describes the nausea feelings, it describes the bleeding, but then it goes further. I am asking a question as opposed to making a statement here. It then goes on to advise, if there are complications, if there is heavy bleeding and if it does not stop after three or four hours, that one should go to a doctor. I point this out for a reason. If, for example, there is a young pregnant girl in this country who for whatever reason cannot continue with the pregnancy and cannot tell her parents, who is alone, isolated and vulnerable, and she gets onto Women on Waves, the website I hit when I googled a while ago, and she procures the tablets and takes them, in the event that there are any complications arising and she presents to a doctor eventually, I have two questions: could she be prosecuted under section 22(1), which states "It shall be an offence to intentionally destroy unborn human life."; and is there an obligation on medical professionals to bring that particular issue to the attention of the authorities in terms of informing An Garda Síochána, which, I assume, would pass the matter on to the Director of Public Prosecutions? In this debate, I have never channelled myself as either pro-life or pro-choice, but I genuinely think this is an important question for a number of reasons.
The sanction of 14 years will not deter a 14 year old girl who is pregnant from securing tablets over the Internet. I accept there is an obligation to vindicate the right of the unborn, but this will not deter her. What it could deter her from is accessing medical care in the event of a serious complication because the website to which I referred - and many others as there are hundreds of them - also states that there could be haemorrhaging and bleeding and that could cause further complications and that one should seek medical help. For many reasons, I would appreciate clarity on that.
One should reflect on whether a 14 year old could possibly be prosecuted under the Bill and sentenced to 14 years in prison because she was in absolute fear because she was pregnant with nobody to tell for whatever reasons. That is something on which we in this House should reflect as well, but I await the Minister's reply.
I speak in support of amendment No. 150. I note the Ministers in the front row. I have respect for many of them and that makes it all the more shocking that the Government would agree to the imposition of this particular aspect of the Bill. The vast majority of citizens watching this debate outside this Chamber do not believe that a woman who procures a termination of pregnancy, other than in the narrow circumstances for which we are legislating tonight, is a criminal. Ultimately, if the Government does not support amendment No. 150, which clearly and in a detailed way sets out a progressive pathway, it is criminalising them.
Over the past couple of days, throughout the discussion in which we are gradually coming to a conclusion, there have been many comments about morality, ethics and moral philosophy, often from a myopic perspective. Surely there is nothing more problematic, from a moral and philosophical perspective, than to criminalise 50% of the population for, as they see it, procuring appropriate medical treatment, and that is ultimately what this legislation will do. If the argument is that no one will ever be prosecuted under the legislation, why place it on the Statute Book?
It is a farcical approach to law to provide a law which it is not intended to enforce and which potentially leaves the Government open to all sorts of consequences and situations. If we are to legislate in a way that is balanced and reflects what I think are the views of the public and of society, then surely the Minister must accept the amendment and take a reasonable approach. No reasonable person, whether in this Chamber or looking on, believes that 50% of the population should be potentially criminalised in this way for procuring medical treatment. This is what is being suggested and what the legislation will mean in practice. Other Deputies have outlined all sorts of different possibilities that could lead to dreadful situations and circumstances for people. The Minister should accept the amendments. To those advocating a pro-choice position, mistakes were made last night in pressing buttons, this that and the other. I hope there will not be any mistakes when it comes to this issue.
The Deputy is the only one-----
I have called Deputy Creed, please. I ask the Minister of State to please desist.
I wish to make a few brief observations on this section and on the amendments. We have spent an extraordinary long period of time - six months or more - in considering all the views and trying to balance the rights of the mother and of the unborn child. These are fundamental rights to life. What I say is probably against the grain of all previous contributions. It is being unrealistic if we are to collectively endeavour to strike that correct balance and then seek to walk away from any chill factor - the term used in the European Court judgment and in reference to the 1861 Act - and hope in good faith that all of the construct in this legislation will be abided to by every party without any sanction for anyone who may breach the provisions of that Act. We need to retain a chill factor. As Deputy Kelleher said, nobody wants to see the vulnerable girl face a sanction of 14 years imprisonment. We pass laws in this House every day which provide a range of sanctions but this House is not the authority that decides to prosecute or that administers the penalty. We are discussing the case of a person who willingly decides to flout the provisions of the law. It would be extraordinary if there were to be no sanction in that case. Of course, nobody wants vulnerable people to be punished but unscrupulous doctors may decide that they will flout the law and they may not acknowledge the equal rights which the Irish people provided in the Constitution. One party will lose out entirely, will have their life taken without any due regard to the equal right. It is ridiculous to argue that a chill factor of some degree should not be retained.
There is interference, which is upsetting the recordings.
I apologise. It is my iPad. If we are to show genuine respect and give life and reality to the constitutional provision in Article 40.3.3°. then it would be bizarre that we would not consider to be an offence the intentional taking of human life. As Deputy Creed said it would essentially make void the entire piece of legislation but also the constitutional guarantees that have been secured in Article 40.3.3°. I disagree with the suggestion that the section be deleted. However, I agree that 14 years is an extremely harsh sentence for someone who would, we imagine, be in a very difficult and delicate situation. My amendment No. 152 proposes to reduce the sentence from a draconian 14 years. Offences of equal if not greater gravity often lead to much shorter sentences. My amendment proposes the sentence to five years. I am not prescriptive and if the Minister has a suggestion of his own, Members would be interested to hear it.
I thank all Members who contributed on this section of the Bill. I will speak first to my amendment No. 155 which proposes to delete subsection 22(4). While it was initially thought that this subsection was necessary for the avoidance of doubt, subsequent advice has proved that this is not the case and for this reason I propose to delete it.
I refer to amendments Nos. 150 to 154, inclusive, 157 and 158.
I will first address the amendments which aim to decriminalise a woman who unlawfully seeks or undergoes a termination of pregnancy. While I understand concerns in this regard, I wish to clarify that a woman can currently be prosecuted for an unlawful abortion under the Offences Against the Person Act 1861 and until this Bill is passed, that is the case. The Act states, "She shall be liable to be kept in penal servitude for life". Therefore, the provision proposed in the Bill does not create a new offence for pregnant women; it merely brings the penalty for this offence in line with current parameters, not exceeding 14 years instead of life imprisonment. The Director of Public Prosecutions will use his or her discretion and the wisdom of the office in deciding whether to refer a case. The courts will also have discretion. None of us would want to see a 14 year old in the situation described by Deputy Kelleher. I cannot imagine how it would happen but equally I cannot give a cast-iron guarantee that it will not happen. The sentence of 14 years is included on the advice of the Attorney General that there has to be some relativity to the current law which this Bill proposes to replace. As Deputy Creed and the Minister of State, Deputy Creighton have argued, Article 40.3.3°. states that the life of the unborn is to be protected because it has an equal right to life. Therefore, this has to be vindicated
While it is recognised that the potential criminalisation of a pregnant woman is a very difficult and sensitive matter, this provision reflects the State's constitutional obligation arising from Article 40.3.3°. It would also be inequitable to have, as a matter of course, a significant penalty for the person performing a medical procedure but none at all for the woman who is willingly undergoing such a procedure. This provision also relates to men.
What would be done with a back street operator who was a recidivist carrying out dangerous procedures on vulnerable persons? It is a maximum, not a minimum, sentence and discretion is provided for.
The effect of amendments Nos. 151 and 158 would be to delete the provisions that cover the offence under the Bill of intentionally destroying unborn human life. These provisions replace and update sections 58 and 59 of the 1861 Act and, therefore, are essential to uphold the constitutional position on the issue. I will not accept the amendments.
Amendment No. 152 would require the penalty for the offence under section 22 to be reduced to a term not exceeding five years. I cannot accept this amendment. Based on a review of the main categories of criminal offences on the Statute Book, the term of 14 years was considered appropriate by my Department and the Department of Justice and Equality. The sentence to be applied in any case is a matter for the court involved. We debated this issue at considerable length on Committee Stage. I acknowledge it is sensitive and that it is not the intention of any Member, no matter how hard are his or her beliefs, that a 14 year old should be subject to a 14 year sentence. However, in response to the question raised by Deputy Billy Kelleher, the normal criminal law applies in sentencing and it has always been more lenient on minors than adults. That will be the case. The discretion of the courts and the Director of Public Prosecutions will apply.
Debate adjourned.