Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013: Second Stage [Private Members]

I move: "That the Bill be now read a Second Time."

I find it somewhat unbelievable that it is nearly three years since Deputies Mick Wallace, Joan Collins and I first introduced legislation to try to deal with the X case ruling in what was the first proactive discussion on Ireland's abortion reality. It was at that time four incredible women - Arlette, Amanda, Ruth and Jenny - went public about their circumstances and the tragic decisions they had to make to take a trip and have a termination after receiving a diagnosis of a fatal foetal abnormality. That was one of the first times people actively promoted themselves having had to undergo a termination. They went on the "Late Late Show" when they had a significant impact on people around the country. With their partners and families, they set up Termination for Medical Reasons. This week they were in Leinster House, waiving their right to privacy to share their stories. It is an absolute insult to them that the Government is attempting to oppose this legislation. It is indefensible and I appeal to the Government in the couple of days before the vote is taken to change its view. If it is really listening to the people in question about their pain and torture, the alternative of doing nothing does not seem to be good enough.

I acknowledge the role played by the individuals behind the campaign and ask people to view the documentary made by Mr. Luke McManus on YouTube. It includes the powerful and heart-rending testimony of people involved in this type of situation. It should be compulsory viewing for anybody before the vote is taken. On behalf of these wonderful people, I introduce this legislation which is the product of input by legal minds such as Ms Jennifer Schweppe in University of Limerick, Dr. Ruth Fletcher and Dr. Eimear Spain who gave of their time free gratis in the public interest and the common good. I salute them for this.

The Bill is about the rare and tragic cases in which parents receive the worst news possible during a pregnancy, often well into it, that the foetus to which they are so looking forward to giving birth has a condition which means that it has no chance of being born alive. The grief is unbearable, with the first reaction being hope this is and could not possibly be true, before the realisation sets in that the diagnosis is correct when the bottom falls from their world. There is nothing we can do to change that grief and there will be no happy ending with the Bill. We can ensure, however, that the ending would be less sad, as, although grief and loss can be dealt with, the anger stemming from feeling let down by one's country, shunned and stigmatised is entirely different.

When people are presented with this diagnosis, they are given two options. They can carry the pregnancy to full term or try to organise a way to leave the country to have the pregnancy terminated. Those who choose to continue the pregnancy would be unaffected by the proposed legislation. They receive very little support in Ireland; they are given the diagnosis and sent home to wait for the child to die. The Bill deals with the others, those who cannot bear the prospect of carrying on, with people congratulating them on the impending arrival, patting the bump and so on. They believe the best and most humane option for them is to terminate the pregnancy.

I will not repeat the stories and testimony we have all heard, but the mental and emotional scars people endure are made worse by the lack of medical help and support. Such issues have been highlighted by the masters of the maternity hospitals who have argued the current position means that people can be deprived of the opportunity to engage in full consultation with medical practitioners in Ireland. There is no post mortem on the aborted foetus or advice or counselling afterwards. There is a lack of follow-up services and secrecy. This is barbaric, cruel, inhumane and degrading treatment - it is torture and it is happening today, as somebody is probably now receiving that heart-breaking diagnosis. Others will receive it next week and the week after. Ruth from the Termination for Medical Reasons campaign stated, "I cannot get over my own anger until it changes because it is happening to people every week and it is just not fair."

I am heartily sick of the nauseating hypocrisy we have had to endure in the House. There have been shallow words of sympathy and tears from Deputies, 50 of whom are on the record of the House as saying something needs to be done. If Members do not do it, who will do it, as we are the legislators? If those who said it really believe it, they must come in behind the Bill. We have circulated the open letter written three years ago by Labour Party members, including three MEPs, three Senators and 15 Deputies. They indicated to the then Minister for Health, Deputy James Reilly, that it was incumbent on the Government to introduce legislation to set out the criteria whereby terminations of pregnancy could be carried out in circumstances involving fatal foetal abnormalities. That was three years ago and five of the people in question are now Ministers or Ministers of State. They are part of the Government on which they called to do something. What are they doing? The Government has done nothing and its response is merely to tell us we cannot go ahead with our proposals. If they really believed in what we are trying to do, they would formulate an alternative, but they have not done so; instead, they have abandoned people. In the forthcoming days I urge them to change their position.

Nobody can put forward a legitimate moral argument for opposing the Bill. The Government is using the old nugget that the legislation is unconstitutional. That is a cop-out. This is the same constitutional provision that was used in arguing against us before Christmas. The Constitution is being used by the Government and others to block this legislation. In any case, the Government cannot know that the Bill is constitutional, as the only way legislation can be deemed to be unconstitutional is by testing it in the High Court or the Supreme Court. The Government has only received the opinion of the Attorney General and guess what? Attorneys General have been proved wrong.

It was a former Attorney General who took the action against Ms X in the Supreme Court ruling in the X case. Ms X won that case and the Supreme Court decided that that girl had the right to a termination in Ireland. Not only that, but of course we know that previous Attorneys General have strongly argued the opposite position to that Attorney General's. The European Court of Human Rights - in D v. Ireland, where the Irish case won - said that D's case was deemed inadmissible because the State argued that she had not exhausted all domestic remedies. The courts upheld the view that she had a reasonable prospect of success before the Irish courts in seeking a termination in those circumstances.

I will not quote from the judgments in those cases, but they are clear in stating that even if the unborn had a right to life, the right to life was not actually engaged as it had no prospect of life outside the womb.

I have heard the Minister say that he is relying on the same advice. However, the advice the Government got before could not relate to this because this is the first time there has been an amendment to the Protection of Life During Pregnancy Act. When the latter Bill was being moved, the then Minister of State, Deputy Alex White, said it could not confer new rights to terminate a pregnancy - it had to clarify existing rights. That is exactly what we are trying to do with the Bill before the House.

Where a foetus or an unborn is incompatible with life - where it is agreed by two medical practitioners that it is not capable of being born alive - then it is our contention that it is perfectly permissible to have a termination in this country. The advice of the Attorney General before made the point that if a foetus had a condition that made it incompatible with life, but was capable of being born, then it attracted the protection of Article 40.3.3°. If the Minister is saying that - and he seems to be - then the corollary is also true - that if it is not capable of being born alive, then no such protection exists. Not only are we saying that abstractly, but the courts have also examined what it means to be born alive. There is no universal standard, but it is clear that doctors can determine with relative certainty whether a foetus will survive.

The recent tragic case before Christmas 2014 of PP v. HSE, involving a woman who was on a life-support machine, added to what we are saying here. In that case, they discussed a genuine prospect of the foetus being born alive, they talked about the stress for the family and the foetus, and said it would be a distressing exercise in futility had it continued. Therefore, the ruling went on to mention Article 40.3.3°. We believe strongly that that legal opinion has added to the other points. There is an overwhelming body of legal opinion that now states it is compatible with our Constitution to have this situation. The only way we will know that, however, is if we have it tested and pass this Bill.

The only other reason that is advanced to oppose this idea is the sort of urban myth that medicine can never be sure a baby would not survive. We have all heard the stories of these strapping lads who are marching around the country, whose mothers were told that they were never going to survive. I have to say that this is absolute nonsense and an insult. If they are strapping lads now, they were born years ago. Medicine has moved on dramatically since then.

A woman being told that there may be a difficulty with the foetus and to expect a problem, is an entirely different situation from a scientific diagnosis given under modern medicine that some foetus has a fatal foetal abnormality. We are talking about foetuses without a brain, a skull or kidneys - tragic complicating conditions that give them a zero chance of life. The myths about a misdiagnosis do not apply to these circumstances.

I find it insulting that women, couples and doctors would get a diagnosis two-thirds through a pregnancy and say "That's shocking, so we'll head off and terminate the pregnancy". It is the most heartbreaking thing to happen to anybody. There are tests and more tests, while people hope against hope that they could be wrong before, unfortunately, the reality dawns that there is no hope in that scenario. Making a decision in those circumstances is no different than the decisions that are made every day to turn off a life-support machine. It is tragic and heartbreaking but absolutely necessary. To consider it as anything else is insulting, in my opinion.

There are legally and medically sound reasons why this Bill is valid, as well as humane considerations. Apart from that, it is absolutely necessary in order for us to comply with the most basic obligations in terms of our human rights. Last year, the United Nations Human Rights Committee said it was very concerned about the criminalisation of people in these circumstances. It talked about the severe mental suffering caused by the denial of abortion services for women in cases of fatal foetal abnormalities. The committee said it was a breach of articles 2, 3, 6, 7, 17, 19 and 26 of the UN Convention on Human Rights. The UN committee told us to revise our legislation, as well as the Constitution. That is what we are trying to do here today.

The Bill before the House would bring us in line with Northern Ireland. Last week, the Northern Ireland Department of Justice had a ruling against it whereby the Northern Ireland Human Rights Commission won the right to take a judicial review in the North. The courts there said it was not good enough for the Minister for Justice just to consult on these issues, he also had an obligation under human rights law to deal with them. We, too, have an obligation to deal with these issues.

All the boxes are ticked on this matter - medical, legal and human rights law. Time after time, opinion polls indicate the Irish people want this situation to be dealt with. They want people to be able to face these tragedies surrounded by their loved ones, their families and medical support. The only thing that is in the way is this House, which is blocking that. It is completely and utterly unacceptable that that is the case. Anything we get opposing this measure will simply be excuses. That is an absolute betrayal of people in this tragic situation.

Amanda, one of the founders of "Termination for Medical Reasons", said:

Stop making excuses while women in this horrendous situation continue to contact us week after week, unsure of where to go or who to turn to; in shock at the extent to which they are abandoned and stigmatised in the wake of the Irish Government's continuing excuse making. Enough is enough. You are the legislators. You are the law makers. You have signed up to deal with these sensitive issues. It's your job. I'm tired of this sadness and the anger that comes with answering phone calls and emails from distressed expectant parents in the same situation that we were in two and a half years ago, and having so little to offer them other than emotional support. Change is beyond due. I would say to this Government, it is finally time to recognise it and deal with this issue.

I would like to acknowledge the work undertaken by Deputy Clare Daly in the preparation and publication of this amendment to the Protection of Life During Pregnancy Act, which is before the House this morning.

The Bill provides for lawful termination of pregnancy following a diagnosis of fatal foetal abnormality which is defined in this Bill as "a medical condition suffered by the foetus such that it is incompatible with life outside the womb". The provisions for certification following receipt of such a diagnosis broadly mirror those of section 7 of the Protection of Life During Pregnancy Act 2013. The two medical specialists required to certify under this amendment would be an obstetrician and a perinatologist.

It was just before Christmas when we had our most recent debate on the issue of abortion, again on foot of a proposal tabled by Deputy Daly. During that debate I gave my own views on this particular issue. I do not wish to repeat them in detail but, to summarise, at that time I indicated that I consider myself to be pro-life, as I accept that the unborn is a human life with rights and I do not support abortion on request or on demand. I also stated and sincerely believe that this is an issue where there are few certainties and where families and doctors often find themselves having to making extremely difficult ethical and clinical decisions. Due to my experience as a doctor in the recent past, and as Minister for Health, I have come to the conclusion that the Eighth Amendment to the Constitution is too restrictive, as it has no regard for the long-term health of the mother, or for the viability of the foetus or unborn child. It also forces mothers and their partners to bring to term a child that has no chance of survival outside the womb for long.

This is exactly the type of clinical scenario that Deputy Clare Daly's Bill aims to address and, therefore, I recognise her intentions.

However, as was the case last December, I cannot support this legislative proposal because the Bill is unconstitutional. A referendum would be required to amend the Constitution to ensure legislation, such as outlined by Deputy Daly, could be introduced. The Dáil cannot pass legislation it knows to be unconstitutional. The view of the Attorney General is that this legislation is unconstitutional. Moreover, the legislation requires a doctor should do what is impossible, namely to certify that a child would definitely not be born alive. In most cases, the child can be born alive, even if he or she only survives for a short time. This includes conditions such as anencephaly, trisomy 13 and trisomy 18. I agree we need to consider misdiagnosis. Our medical services are much more advanced than they used to be and there have been enormous strides in obstetrics and foetal medicine. Misdiagnosis still does happen, it is not a myth.

Article 40.3.3° reads:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

In Attorney General v. X in 1992, also known as the X case, the Supreme Court considered the meaning of the eighth amendment in the circumstances that arose. A majority of the members of the court held that if it were established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful.

The Protection of Life During Pregnancy Act was signed into law by the President on 30 July 2013 and was commenced on 1 January 2014. The main purpose of the Act is to restate the general prohibition on abortion in Ireland while regulating access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. The Act provides for existing rights within the constitutional provisions and the Supreme Court judgment in the X case. It does not confer any new substantive rights to a termination of pregnancy. The Act upholds the right to life of the unborn and the right to life of a pregnant woman whose life is threatened by her pregnancy, as required by Article 40.3.3°. Accordingly, a referendum would be required to amend the Constitution before Deputy Clare Daly's legislative proposal could be introduced. This is because the proposed amendment goes beyond what is provided in the current Act and what is constitutional.

At this juncture, I am sure Deputies who support this proposal will question why I am not advocating the need for a referendum, if I truly believe that the eighth amendment is too restrictive. As I said in December, the current Government has no electoral mandate to hold a referendum on abortion and there is no consensus on what form any amendment should take. Should it delete the eighth amendment? Should it amend it further to introduce new safeguards for the unborn? If so, what form should the follow-up legislation take? Indeed, there is one commitment on abortion in the programme for Government. This commitment was to examine the judgment in the A, B and C v. Ireland case and to make recommendations on how this matter should be properly addressed. This undertaking has now been fulfilled through the enactment of the Protection of Life During Pregnancy Act 2013.

It should not be forgotten this is legislation that had been overdue for more than 20 years. As I stated last December, what I believe is required now is a considered and careful public debate to find a consensus. However, I do believe greater compassion is required to find this consensus and to inform our discussions. The situations that this amendment tries to address can only be described as tragic. I wish to extend my sympathy to any family that has to experience it.

Before I conclude, I will remind the House about the supports available for women experiencing a crisis pregnancy. The Health Service Executive through the crisis pregnancy programme, funds the provision of crisis pregnancy counselling services. In 2013, just over €3 million was provided directly to 15 State-funded crisis pregnancy counselling services through the programme. These services operate out of more than 50 locations nationwide. Approximately 4,000 women attend such services annually, a number of which attend for more than one appointment. The woman's partner and-or family members also attend these services for support. The crisis pregnancy services provide post-abortion counselling and several of them support access to free post-abortion medical check-ups. The HSE has a campaign to increase awareness among women that post-abortion services are available in Ireland. The abortion aftercare campaign, which consists of targeted online and print advertisements, encourages women who have had an abortion to attend for post-abortion medical check-ups and promotes the availability of free post-abortion counselling.

The programme has met with a group representing women who have received a diagnosis of fatal foetal abnormality on relevant crisis pregnancy counselling and post-abortion counselling options available and ways to improve the standard of service nationwide. Following on from this engagement, the crisis pregnancy programme is in discussion with maternity services on supporting the implementation of the draft standards for bereavement care following pregnancy and perinatal loss. These standards have been developed to assist and direct all health care professionals in their provision of bereavement care to parents, including a diagnosis of fatal foetal anomaly. Advice will be provided on the availability of counselling services for women and their partners at diagnosis. The crisis pregnancy programme will work with maternity services, as well as crisis pregnancy counselling services, on the development of a referral pathway between maternity services and crisis pregnancy and post-abortion counselling services to ensure no one affected slips between the cracks. I hope these developments will provide some much needed help and support to those who need it in times of crisis.

I oppose this proposed legislation because, although it is well intended, it is unconstitutional. Accordingly, I do not support this Bill at this time.

The Minister spoke about not having a mandate. I wonder when he will get a mandate. Will it be in the Fine Gael election manifesto seeking a repeal of the eighth amendment through a referendum? Other matters have been dealt with without a mandate. For example, the introduction of a property tax was expressly in the manifestoes of the two Government parties but they said the opposite of what happened. It strikes me that this is a means of avoiding taking a decision that needs to be taken.

When a principal officer from the Department of Health told a UN committee that denying the women in question the right to an abortion was the will of the people and it goes back to the eighth amendment, I recall from the body language of the Minister for Justice and Equality, Deputy Frances Fitzgerald, on television how uncomfortable she was. Barbaric as this is within the country, it looks far worse from outside.

Over the past two years, I have gone several times with the Doctors for Choice group to the Liverpool Women’s Hospital. It has an outstanding record of trying to bring to term a compromised foetus. The hospital does not carry out a termination willy-nilly. The way women in such circumstances, indeed their families, are treated is very humane. The humanity shown by the staff to these women and their families was in such contrast to how they were treated here and the reason they had to go in the first place.

I would describe myself as pro-choice because I do not have the right to impose my will on another woman who has to take a pregnancy to term if she does not have the money to leave the country or it does not terminate in advance of a full 40-week term.

Further issues include the large cost that is involved and the risk to health created by the way in which the procedure is conducted. It is a two-stage process, yet many women return having only had one stage completed. The kind of overall care that is required in such circumstances has not been discussed by the Government side. We are putting women at risk.

A family wants to pay respect, not just to the foetus, but to the baby for which it hoped. People try to repatriate the remains through DHL packages or in the boots of cars-----

-----and hope that they will not to be stopped. It is outrageous that we are putting them in that position. They want to acknowledge what would have been their hopes and expectations, but which have sadly been terminated because there was an incompatibility with life. There has been mention of postponements and claims about not having mandates while having sympathy and so on, but we started with the A, B and C, X and Y cases and will surely have cases comprising a further half a dozen letters of the alphabet before we reach the realisation or at least gain the courage to do what is right. We need to legislate in that regard.

I congratulate Deputy Clare Daly on publishing this Bill and being a consistent campaigner on the issue. All of the polling shows that the public is way ahead on the matter. I do not know why the Government parties, particularly Fine Gael, are so far behind the public on something that has humanity at its heart. People are trying to deal with a difficult situation in as sensitive a way as possible, but it seems that a small group of powerful people have a greater hold on public policy than the majority of those who want this issue addressed humanely.

I welcome the opportunity to contribute on this issue again. Often, it presents itself in the Dáil as a divisive one but, given the Bill's narrow focus on fatal foetal abnormalities, consensus could be found with a bit of imagination and commitment to address a humane issue that affects a small number of people tragically every year.

Last year, I received a telephone call from a person whom I knew well. He had been delighted that his wife was pregnant. They were thrilled, having tried for a child for some time. They went for their first scan with all of the expected enthusiasm, excitement and trepidation, only to find that the child had no chance of life outside the womb. Of course they wanted a second opinion. They sought it but were informed of the same. They sought many opinions in the hope that just one could give them a thread of hope for the child's survival outside the womb. In the end, none of that comfort came to them in the medical diagnoses.

They were left with a difficult decision to make. As Deputy Clare Daly asked, should they walk the street, meeting people who talk about the wife blooming and discuss all of the excitement that a child brings or should they face the other choice? The decision agonised them. My view on the matter was framed by something in particular. They told me that they had felt demeaned by having to go to England. They had wanted to have their child in this country but could not.

We must be imaginative, brave and bold in how we deal with this issue. As Deputy Clare Daly stated, we need more than compassion. We must put the arm of the Parliament around people and be forceful in agreeing a solution to the issue. The Minister stated that the Government did not have a mandate to address the matter. It probably does not, but it probably does not have a mandate for many of the other measures it has taken. Not having a mandate from a previous election should not stop a Government from tabling proposals and ideas. The Parliament is what gives us our mandate when we do something collectively.

We must consider this matter in a way that can achieve consensus. In every speech I have made in the Chamber, I have stated that I am pro-life. I do not support abortion on demand and do not believe that the Irish people do either, but what of fatal foetal abnormalities and its devastating blow to families who want to have children? Let us be clear - the choice will still be theirs. If a woman received a diagnosis of fatal foetal abnormality and we facilitated a termination in this country, doing so would not be obligatory. She would have the choice of going full term or terminating the pregnancy at an earlier stage. Some extremists hold the view that a termination would almost be mandatory, but there will be a choice, one that can be made in the comfort of a woman's own home with her family sitting around her and in the knowledge that, if she goes for a termination, it will be done in the comfort of her own country and in a hospital that can provide the care and follow-up treatments and therapies she needs.

While the Government does not have a mandate on this issue or for any of the measures it takes on a daily basis, I suggest that we consider this matter, not just in the compassionate way that the House espouses, but in a way that will take account of a woman who is carrying a baby she wants but that will, as the Bill reads, die immediately when born.

The Bill has a narrow focus. When discussing the issue of termination, I try to be non-partisan and do not play politics with it. For many decades, people have played politics and it has been divisive. Numerous times, it has been asked whether terminations for fatal foetal abnormalities will open up the possibility of terminations for babies with disabilities or deformities. I would not speak, let alone support this Bill, if I believed for one second that it had the potential to allow for the termination of any child due to disability. The Bill is purposely narrowly focused on addressing the issue of incompatibility with life outside the womb, namely, fatal foetal abnormality. Going full term or terminating the pregnancy in this country should be the choice of the woman and her family.

Many people will cite reasons for such terminations being unconstitutional. I do not know whether that is true. I always take my party's legal advice when tabling a Bill on behalf of the party. I am speaking in a personal capacity today. Our party will offer its members a free vote on this issue. The idea that the Parliament will do nothing because we believe it is unconstitutional is to say that we will never do anything on this matter. Not for one moment do I believe that we will have a referendum in the short to medium term unless one is forced on us again by the courts or other constitutional institutions. People will mount challenges and seek to vindicate their rights, a court will make a decision and we will be obligated to act.

Let us debate and vote on this Bill or an amended version of it. If it is unconstitutional, let it be found so, as we will then have a definitive decision on what must be put to the people to address this very tragic issue, which causes people significant trauma and the country an element of shame.

The Bill that is being introduced by Deputy Clare Daly is part of the unfinished business from the Bill that was debated here in June 2013. At that time, there was much discussion and a vote on an amendment that would have made provision for terminations in Ireland in cases of fatal foetal abnormality. Today, we are discussing very tragic cases in which women and parents are told that the foetus - the baby in the womb - does not have a chance of surviving outside the womb. As far as I am concerned, this Bill has a very narrow remit. It is not about abortion on demand. It is about very specific cases.

It is undoubtedly heartbreaking, harrowing and unbearably sad for any parent who is expecting a child to be told of a fatal complication with the pregnancy. When we speak about fatal complications, we do not mean mental or physical disabilities, Down's syndrome or the possibility of autism or a visual or hearing impairment. If the term "fatal complication" included any of those things, I would not support this Bill. I support the right of the unborn to be born. In the case of a pregnancy where the medical opinion and facts show there is no chance of life outside the womb, there should be a right to a termination in this country without the additional stress and expense of travelling abroad.

I think we need to know someone who has had the heartbreaking news of a diagnosis of fatal foetal abnormality broken to them to understand the devastation that is experienced in such circumstances. I refer to people who have known the joy of being pregnant, looking forward to the birth, buying the baby clothes and the pram and thinking of names, only to be given a picture of the scan and told the medical fact that the unborn will not survive outside the womb. Such people then have to choose between carrying the unborn to full term, with the possibility of miscarrying in the meantime, and travelling to the UK for a termination with all that entails.

We need to consider whether constitutional protection can be afforded to a foetus that does not have the capacity to be born alive. In one case, Mr. Chief Justice Murray found that the fertilisation of the ovum is the first step in the procreation process and that to extend constitutional protection is to assume the capacity to be born. If this is not the case, as in the case of a foetus found to be suffering from a fatal abnormality, the lack of a capacity to be born as such changes the rights of the foetus in relation to the mother. Cases before the courts are indicating that the original legislation is not comprehensive and is not allowing for certain cases. A brave and forward-looking Government is required to lead with amendments to repair unintended deficiencies in the current legislation.

I would like to address the argument that it is constitutionally inappropriate to place the rights of the unborn on an equal footing with the rights of the mother when the foetus is found to be unviable. Those involved in the drafting of this Bill have made the legal argument that "foetuses suffering from fatal foetal abnormalities constitute an exception to the prohibition on termination of pregnancy under Article 40.3.3° on the grounds that in these circumstances the balance between the right to life of a woman and the unborn shifts in favour of the woman". While the original point of the legislation is to protect the life of the unborn, a kind of legal vacuum or difficulty occurs when the unborn's life is not a viable prospect.

Under existing legislation, the duty of the State is to defend the rights of the unborn in so far as it is practicable. Clearly, non-viability has an impact on the practicability and on the mother's rights under Articles 40 and 41 of the Constitution and Article 8 of the European Convention on Human Rights. Any attempt to balance a life that is full and complete with a life that has been or will be cut short due to tragically unfortunate circumstances, as in cases of fatal foetal abnormality, heaps misery on women and parents who deserve compassion, sympathy and care in such very difficult circumstances.

I agree with the argument that this cannot be left to the legal profession. It has to be up to the Government to lead on this. We know the Attorney General has advised that the Bill is unconstitutional, but others disagree. Ms Schweppe, who assisted in drafting this Bill, has said that "the State is under no obligation to force a woman to carry a pregnancy to term where there is no prospect of life". It takes a great deal of courage and strength for women and parents to decide to terminate a pregnancy in the knowledge that the unborn will not survive outside the womb. Under the Thirteenth Amendment to the Constitution, Irish women have the right to make the journey to the UK for a termination, but I do not believe citizens of Ireland should have to travel abroad in these circumstances. It is cruel to force a woman to carry an unviable life to full term. In many cases, foetal complications can cause miscarriage, which in itself can lead to further health problems, regardless of the trauma of the whole experience of having to travel.

The very narrow remit of this legislation extends to those unborn who cannot survive outside the womb. It is about allowing women and parents whose unborn will not live outside the womb to have that termination in Ireland. As Deputy Clare Daly stated, it is about clarity for people in this very difficult situation. I find it a total contradiction that medical advice can be given about travelling to another jurisdiction for a termination, but that termination cannot be held in this country. I want to acknowledge all the work Deputy Daly has done on this Bill. There is a dire need to look at this properly.

I have said on the record on many occasions inside and outside the Chamber that I want to see in legislation a measure that would provide a legal framework for the termination of cases of fatal foetal abnormality. I would go further by allowing for terminations in cases where there is a severe threat to the ongoing health of the mother, and indeed in cases of rape and incest. I realise that there are validly held views on both sides of this argument. Not everyone would agree with the right to abortion in the latter cases. I honestly believe the vast majority of Irish people agree that the cases covered by Deputy Daly's Bill should be legislated for. In fact, they find it incomprehensible that people are forced to carry pregnancies to term in these circumstances. I emphasise the word "forced" because I am aware that many women want to complete the pregnancy, even if it ends in just a few moments of life. Equally, there are women who would find it absolutely unbearable to carry a pregnancy that will end with a dead baby. This cannot be seen as a matter of using abortion as contraception, or as abortion on demand. It cannot even be seen as the right to choose. There really is no choice. In all of these cases, the babies are desperately wanted by their mothers, who are excitedly looking forward to giving birth. As the diagnosis of fatal foetal abnormality often comes very late in the pregnancy, the whole extended family is involved in the preparations and is looking forward to the arrival of a healthy baby. All we can offer to these women under the existing law is a trip to England.

Quite apart from the emotional misery and mental suffering that such a diagnosis brings, the pregnancy is usually quite advanced, which means that travelling presents an added physical danger. Irish women tend to present in hospitals at a much later stage than women who live in countries where safe and legal terminations are available because they need to make travel arrangements outside the State, organise to get this service in a hospital, find the money and, in many cases, organise babysitters. The stigma or perceived stigma associated with an abortion, and the lack of clarity around the law, means the level of communication between the mother and the doctor who has been caring for her is often restricted. There is often a complete breakdown in the continuum of care. In many cases, women turn up at hospitals when they are miscarrying or have already miscarried and are afraid to report to their doctors what has happened. The hospital might know exactly what has happened - that the woman has had the first stage of the termination procedure in Britain. There is a lack of communication. Nobody can speak about this issue because of the shame and the stigma that surrounds it and the fear caused by the chilling effect of our unclear legislation. This lack of communication is downright dangerous. It is an absolutely inevitable part of the covert and almost farcical behaviour that we oblige doctors and mothers to engage in.

It has been reported that Irish women going abroad are encountering further delays because hospitals have emerging waiting lists for procedures. Of course they are going to look after their own cases before they deal with Irish women. It is almost impossible to imagine what it must be like to get the news that one's baby cannot survive outside the womb, and then to be told one will have to go on a waiting list.

One woman described it as torture and it is. I agree with Deputy Clare Daly that we should stop doing this to women. I really wish this Bill was the solution and the way to stop doing it but it is not. As Deputy Daly herself admits, it must be tested in the courts and must go straight back into the courts. How many times has it been said, both in this Chamber and in the courts themselves, that such decisions are for women in consultation with their doctors operating in a clear legal framework? Such decisions are not for the courts. However, there is no clear legal framework here and I honestly believe that if passed, this Bill would only complicate matters further.

I have stated previously and still believe the only way forward is to remove the eighth amendment from the Constitution following a national debate on what, as a society, we wish to see in terms of criteria for terminations. This should followed by clear, unambiguous but minimalist legislation that would lay down the broad parameters and limits of where terminations would be permitted but which would leave the precise detail and medical decisions to the doctors and patients, which is precisely what happens in absolutely every other area of medicine. I also have stated previously that I want the referendum that would allow such legislation take place as soon as possible. I believe Ireland is ready for and wants such a referendum and that people would wish to include the circumstances for which Deputy Clare Daly seeks to provide.

While I admire Deputy Daly for persisting with this issue, I believe that far from solving the problem, it might make it even more complex. The thesis is that the court should adjudicate on whether a foetus which cannot be born alive could be considered unborn and if not, then it is not protected by the eighth amendment. I note that after 40 years, Members are back trying to define "the unborn". I recall that bitter debate, in which no one ever could decide what "unborn" meant. Even then, it was described as an exercise in trying to decide how many angels could dance on the end of a pin. We never found out, the courts do not know and we must stop tying ourselves in knots trying to find out what it is. The amendment is full of ambiguities and inconsistencies and in short, it is unfathomable and it is time to let it go. Enough women have suffered at its hands and it serves no one's interests, certainly not women or their doctors. I share and understand Deputy Daly's frustration and impatience but I honestly believe that for as long as the aforementioned amendment remains in the Constitution as the backdrop to and constraint on legislation, women will be ill-served and will continue to suffer the indignity of having their personal cases go before the courts. Every few months, cases - the details of which one cannot even conceive - go to the court and this will continue for as long as that amendment is in the Constitution.

The Bill concerns cases in which the foetus is not capable of being born alive and where it is agreed by two specialist medical practitioners in good faith that this is the case. The Minister has stated there sometimes is misdiagnosis and he of course is correct, as everybody makes mistakes. However, given today's technology, the likelihood of two medical practitioners making the same mistake is a lot less than many other areas in which decisions are made. I would say that at least 30% of the people in prison in Ireland are not guilty of what they are in there for and that these people make far fewer mistakes than most. Deputy Clare Daly made a strong argument that this Bill could be passed without interfering with the eighth amendment. I acknowledge there are people who think otherwise. However, had the Government the courage to pass the Bill, those people could appeal it to the Supreme Court, as is their right, and let us see what would be the result. If it turned out that they won, the position would be no worse than it is at present. As other Deputies have mentioned, the Minister's argument that the Government does not have an electoral mandate to challenge the eighth amendment is horseshit. The Government did not have a mandate to introduce the property tax and nor does it have a mandate to pay the unsecured bondholders. That is a pathetic argument on the part of the Minister and in fairness, the present Administration would not be the only government to do things for which it lacked a mandate. I suggest every government in the history of mankind has done this and the Minister should not give that argument to Members.

This Bill seeks to end the barbaric practice in which the country abandons women and couples at a time when they most need help, effectively forcing a woman to choose between carrying to term a foetus that will never be born alive or fleeing the country like a fugitive for a termination carried out by strangers in a foreign place where she will have little or no support. This legislation also will help the medical professionals who must refuse, against their duty and instincts of care, to provide crucial medical help due to the lack of clarity regarding the legal implications in this respect and who, in addition, face the prospect of 14 years in prison. Ireland's inhumane abortion laws rightly have received criticism from human rights watchdogs around the world. In its fourth periodic report on Ireland carried out in 2014, the United Nations Human Rights Committee expressed its concern at the criminalisation of abortion under section 22 of the Protection of Life During Pregnancy Act and recommended explicitly that abortion legislation in this country be revised to provide for cases of fatal foetal abnormality. Ireland is one of just two European Union member states that do not allow for legal terminations in such cases. Citing recent cases against Poland at the European Court of Human Rights, the Irish Council for Civil Liberties stated the treatment in Ireland of women with pregnancies in which the foetus is diagnosed with a fatal abnormality could amount to inhumane or degrading treatment, therefore violating Article 3 of the European Convention on Human Rights.

Any discussion on termination in this country inevitably and unfortunately raises the issue of constitutionality. However, the specific and limited nature of the provision in Deputy Clare Daly's Bill is such that it would be compatible with the Constitution and that no change to the existing constitutional provisions would be needed. In this regard, I recall the debate in the Dáil in 2013 on the Protection of Life During Pregnancy Act, during which the then Minister of State at the Department of Health, Deputy White, defined the protection in Article 40.3.3° of the Constitution as applying to unborn life "which is capable of being born alive". As the proposed Bill only deals with a foetus that is found to be incapable of being born alive, on the Minister's logic Article 40.3.3° would not apply and there would be no constitutional bar on the provision. I also refer to the Government's response to the case of D v. Ireland before the European Court of Human Rights. When pregnant with twins, which both tragically were found to be incompatible with life, this woman sought a termination in a jurisdiction outside Ireland. It is interesting to note that the Government, while arguing that the woman had not exhausted domestic remedies before taking her case to Strasbourg, held that there "might be an issue as to the extent to which the State was required to guarantee the right to life of a foetus which suffered from a legal genetic abnormality". Basically the Government was arguing that it was an open question as to whether the Constitution would have allowed a legal termination to have been carried out in this case.

The Bill before Members today seeks to provide legal clarity in acknowledging the rights of women and medical practitioners under the Constitution. This lack of legal clarity came to the fore in the tragic case of PP v. HSE in December 2014 in which a clinically-dead woman on life support was forced to act as a human incubator for three weeks for a foetus which was at too early a stage in the gestation period to have a hope of survival outside the womb. Mr. Justice Kearns of the High Court found that keeping the foetus alive in these hopeless circumstances would constitute "a distressing exercise in futility for the unborn child". Integral to the judgment in this case was the consideration of whether the foetus had a genuine prospect of being born alive. The capacity for all people to see things as they see fit and as suits them is powerful and the level of hypocrisy around this debate in this Chamber is too bad.

I call Deputy Catherine Byrne.

I thank Deputy Clare Daly for bringing this Bill to the House. If there was ever a Bill I would like to support, it is this one. However, as the Minister already stated in his opening remarks, this Bill is unconstitutional and a referendum would be required to amend the Constitution. However, I believe Deputy Clare Daly knows this very well and, therefore, I cannot support this Bill at this time.

I, like many Members, have met and spoken to many couples who have had to face the devastating news that their unborn child will not survive outside the womb due to a fatal foetal abnormality. We have all listened to the heart-wrenching stories of women who have travelled abroad to have their pregnancies terminated and the very sad stories of their journeys home without their babies.

I believe that in our maternity hospitals today, especially in the Coombe, the Rotunda and Holles Street in Dublin, the women who are diagnosed with a fatal foetal abnormality or other serious conditions in their pregnancies are shown nothing but compassion and support by not only the doctors and the nursing staff but by everybody working around them.

I welcome the Minister's comments regarding the Crisis Pregnancy Agency which is currently in discussions with maternity services to support the implementation of the draft standards for bereavement care following pregnancy and perinatal loss. I believe this is already happening on a personal basis each day in our hospitals. I welcome the fact that these standards have been developed to assist and direct all health care professionals in their provision of bereavement care to patients, including those who receive a diagnosis of fatal foetal abnormality.

Whether it is in the lifetime of this Government or the next, I sincerely hope that a legal solution can be found to give this group of parents every opportunity to remain in their own country to be cared for, surrounded by their loving family and friends, who can fully support them through the very difficult time when they have been diagnosed and received this terrible news.

As a mother and a grandmother of three beautiful grandchildren, I believe that every mother wants to have a pregnancy that goes well but when the devastating news comes that things are not always right, it is only through the support of one's family and friends that one can cope through that difficult time, whether one's baby survives or not.

I thank Deputy Clare Daly for bringing this Bill to the House but, unfortunately, this legislation, as it stands, is unconstitutional and, therefore, I cannot support it.

The next speaker is Deputy Boyd Barrett and the Leas-Cheann Comhairle suggested a speaking time of seven minutes would allow everybody to contribute.

Often in this Chamber as Deputies we have to talk about injustices, unfairnesses or cruelties that happened to other people and we have to convey their concerns, pain and desire for a remedy, but, occasionally, one has to talk about something of which one has direct personal experience and, for me, this is one of those occasions. Next Tuesday 13 years ago I had to bury my daughter, Ella, who was born with fatal foetal abnormalities - trisomy 13. She would be 13 this spring. It was a beautiful spring day exactly like today when we had to bury her. Myself, her mother and her two brothers think about her every day. We have a tree, which a friend of ours kindly gave us at the time, planted on Killiney Hill to remind us of her and we go up there every year to remember her and think about how she might still be here. She was a daughter that we desperately wanted.

When we received the diagnosis that she had a condition that was incompatible with life we could not understand it. We could not get our heads around that idea. We went to the ends of the earth from geneticists to doctors, got first, second and third opinions and looked at alternative medicine to see if it had some different perspective. We looked in every possible direction to cling on to the hope that she might live but there was no doubt about it. It was an absolute certainty that she would not live because she had a condition that was incompatible with life, and that makes this situation that we are talking about completely unique. It has nothing to do with the right to life because one cannot protect a life when we are talking about a condition that is incompatible with life - it cannot be protected. That is the point of this Bill. That is why the Constitution does not apply; the constitutional protection to life does not apply because this is a life that cannot be saved. Setting aside all the debates and disputes about life, choice and all the rest of it, this is a life that cannot be saved, even though this is a life which the parents want desperately to be saved.

Therefore, the issue of misdiagnosis does not come into it because in these circumstances the parents will go to the ends of the earth. We do not even need the safeguard of the certification by two doctors that is in this Bill. I can guarantee that every parent in this situation will go not only to two doctors but to three, four, five or six doctors They will explore every single possible avenue in the desperate hope that their child will survive. It is only when it becomes clear and when they finally get their heads around the fact that there is no chance of survival that they will relinquish that hope. Therefore, the issue of misdiagnosis does not come into it and neither does the issue of constitutional protections for life. This is a tragedy whatever way one looks at it, and it is a tragedy that will stay with the people who are victims of it for the rest of their lives and not only for their lives but if there are brothers or sisters involved, for their lives too. My children think about their sister all the time and desperately wish that she was there but she could not survive. She was a victim of the cruelty of nature, nothing else, something that we cannot control.

Therefore, the only question before this House and all the Deputies present is: are we going to, in some way, alleviate, or at least not compound, the terrible tragedy of losing a wanted child, which the parents, and the families, of babies with these conditions are going to suffer? That is the issue. Are we going to allow hundreds of people again this year to go through this terrible tragedy and make it worse for them? They are going to go through the tragedy anyway, they are going to feel the pain and they will feel it for the rest of their lives, but are we going to make it worse? That is the issue. It is within the power of the people in this Chamber to ensure that it is not made worse.

This morning in Holles Street or in Rotunda there is a very good chance that another couple are getting this news and they will be utterly devastated. They will explore every single option in the desperate hope that the news they have been given by the doctors is not true.

When they receive that news, the least we can do is to ensure they have the right to decide how an inevitable ending of life occurs and whether they will have all of the support, comfort and backup we can give them in a situation where a tragedy is inevitable. That is the choice the Minister has. I appeal to the Deputies next Tuesday to reach across and press the green button to give some support to those who will suffer it that this terrible life-affecting tragedy will not be compounded by the actions of Deputies in this Chamber.

Like many others, I would like to see the repeal of the eight amendment sooner rather than later because it has compounded some huge tragedies in the State that none of us wants to stand over or see happen again, given all of the cases we have seen in the past.

A point was made by a speaker that she understood Deputy Clare Daly’s frustration. This is not about Deputy Clare Daly’s frustration; it is about the frustration we have heard expressed by Deputy Richard Boyd Barrett and the families who have had to deal with this horrendous situation, which is not new. Doctors do not diagnose fatal foetal abnormalities to see whether pregnancies can be terminated in this country. It has been an ongoing issue for a long time. Doctors have been giving such prognoses every day of the week and the year for decades. What the Bill robustly attempts to do is to allow a situation where such families can lawfully terminate a pregnancy in this country within the confines of their own cultural life and in a situation where they are comfortable to do so.

Rather than saying the Bill is unconstitutional or that there is no electoral mandate to hold a referendum, if the Government believes the legislation is not sufficiently robust, how could the Minister with responsibility for people who find themselves in this position not introduce more robust legislation until such time as the eight amendment was repealed? The solicitors and legal experts who drew up the Bill are quite confident that, as Deputy Richard Boyd Barrett said, it only deals with a case in which a condition is incompatible with life. That is the crucial element of the legislation because it cannot be challenged by Article 40.3.3°. We do not believe any judge or court would find differently on the matter.

In the Attorney General v. X, in interpreting the term “practicable”, the court stated the duty to protect the life of the unborn meant the court should not make orders “which are futile, impractical or ineffective.” The Supreme Court interpreted the term to mean that which was practicable, rather than what was possible. Thus, just because it is possible for a woman to carry a foetus to term, although not to be born alive, does not mean that it is practicable to insist on she doing so. That is what the State is insisting on doing - either that or a woman must travel to Britain or somewhere else to terminate her pregnancy. A previous speaker spoke about how it had become more difficult to have a termination outside this jurisdiction, as there were pressures on the health service in England, for example, and many women found they had to wait longer to access a termination procedure.

It is not just morally imperative that we examine the issue for families affected by this issue, it is also a legal responsibility to consider all ways to assist. The very restrictive proposed legislation does not deal with a situation where a foetus could live outside the womb for three or four minutes or one day or one week; it specifically relates to a fatal foetal abnormality, a diagnosis that it could not live outside the womb. That is the intention of the Bill and the solicitors are confident that the Bill is robust from that point of view.

I urge Deputies to pass the legislation. If passed, although I would not like to see this happen, if the President wanted to do so, he could refer it to the Supreme Court to test its constitutionality. If the Bill were to be passed, the women and families affected would at least have some comfort in knowing that they could deal with the issue in their own state, rather than having to travel abroad. I appeal to all Members to seriously consider the Bill and read the information provided and the legal explanations from the solicitors and barristers who have drawn it up and debate it with people who find themselves in the situation and would like to gain relief for families affected.

We received a telephone call in the constituency office the other day from the father of a woman who had received a diagnosis of a fatal foetal abnormality only five weeks ago. She had to travel to Britain. He said it was horrific for a family to face and that they never wanted to see it happen to anyone. Hundreds of people have been affected, not just the mother who is grieving but also the father, the grandparents and children – all those who have to deal with the issue. It is within our remit as legislators to pass the Bill to deal with it.

Two constituents of mine and the Minister contacted me about the Bill as they were going through this scenario. I will briefly read the details of one Castleknock family:

Our family are currently suffering under the restrictions imposed on medical staff, patients, families and friends by current legislation. Our daughter and her husband were delighted to announce the news of their first baby last October.

I will give an edited version of the e-mail:

They were told that their baby is a baby girl ... [who has a condition that] is incompatible with life outside the womb...

What cannot be emphasised strongly enough is the impact that this has caused on our daughter and her husband, their parents, families and friends ... she has been too distressed to work since the baby’s diagnosis. They have been mourning the loss of their baby since week 14 of the pregnancy without the actual resolution of delivery...

If the proposed amendment was in place she would have been delivered in a sensitive caring supportive environment at 17-18 weeks; she would have received counselling and medical support and would be back at work again, healing and looking forward to planning for another baby ... Instead she and her husband will be travelling to Liverpool on Monday 9 Feb where they will deliver her baby.

My daughter and her husband have nothing but praise for the wonderful medical care and support they have received from all the staff in Holles Street but they are powerless to care for her appropriately in this pregnancy.

I put it to the Minister that it is absolutely embarrassing, sickening and shameful that we have families and women being put through this in 2015 in this country. He referred to a mandate. I defy him to walk out through the gates of Leinster House and find one person on the street who would support one family being put through this or who would oppose the legislation and support what was being done. Women are being forced to carry dead babies to full term, or else they are forced to leave the country to deal with the issue themselves in a foreign place without the support of their family, at their own expense, having made their own arrangements.

I support the Bill, as does the Socialist Party and the Anti-Austerity Alliance. I will not get into a Jesuitical debate about whether one can predict that a foetus will live for two or three minutes outside the womb. In fact, the Bill is extremely narrow. We are having this debate, yet again, because of the eight amendment. An extremely tiny minority would oppose the Bill. I have received one e-mail from an avid, anti-abortionist, pro-life person.

However, this tiny minority foisted the referendum on the rest of us 32 years ago. It does not have support in society any longer, but the Minister is continuing to stand over that situation.

For how long will we have these debates? We have had the death of Savita Halappanavar, there has been a migrant rape victim, a clinically dead pregnant woman and women are being forced out of our country every day. I am also appalled if the Labour Party does not support this Bill and that Fianna Fáil and Fine Gael have stood over this situation for the last few decades, when they could have dealt with it.

If the Bill is unconstitutional, what will the Minister do about it? A spate of referenda are due to be held in the next few months. Is the Minister seriously saying that the referendum regarding the age of the President is more important than this? It is unbelievable that the Government is holding a referendum on marriage equality, which I fully support and for which I will campaign, but is this not equally important? The United Nations has already condemned this country. Obviously it does not matter if women complain, but this country has become a source of international opprobrium by now. The same situation applies in Northern Ireland where sectarian parties such as the Democratic Unionist Party, DUP, and the Social Democratic and Labour Party, SDLP, are preventing legislation such as this being introduced there.

It appears that women and families are yet again prey to the role of the church in this country over the years in preventing this legislation being introduced. The Minister should do the decent thing and support this legislation. Let it get tested in the courts if somebody wishes to initiate a case. The Minister is shaking his head, so will he agree to introduce a referendum to repeal the eighth amendment during the lifetime of this Government? I agree with the Minister that, ultimately, it is the only way to deal with giving women and their partners the power to make their own decisions. It should not even be at the behest of two doctors. People should be able to make these personal decisions for themselves and have the matter dealt with through our health service. We should not export the problem by sending people abroad on ships and airplanes at their own expense to deal with it by themselves.

I am glad a Labour Party Member has come to the House to listen to the debate but it is shameful if the Labour Party intends to stand over this issue not being dealt with. It is disgraceful.

This legislation is unconstitutional. The Bill says that fatal foetal abnormality means a medical condition suffered by a foetus that is incompatible with life outside of the womb. However, the Constitution protects unborn life within the womb. As the legislation would permit termination of life within the womb I believe it is unconstitutional on that ground. One can get involved in theological arguments and fine details, but on its face this legislation is unconstitutional. That is also the advice from the Attorney General.

It is our duty as legislators to legislate within the Constitution. Article 19 prohibits passing legislation which is repugnant to the Constitution in any way. That is our duty as legislators and it is particularly the duty of the Government not to put forward legislation that is unconstitutional. Some of the people who argue for this Bill to be passed would have said, in respect of the legislation regarding the X case, that the Oireachtas had a duty to legislate because the Constitution and the Supreme Court judgment on what the Constitution says required such legislation. On the other hand, they press people to vote for legislation that is unconstitutional.

Ours is not an à la carte Constitution. We must legislate within it. If one wishes to legislate outside the Constitution, the way to do so is by putting forward a proposal-----

A referendum.

-----for a referendum to amend the Constitution. I believe that is the way forward on this.

When will the Deputy propose it?

I am a little older than Deputy Coppinger, but I was in school when the eighth amendment of the Constitution was passed in 1983. I was unable to vote in the referendum but I recall campaigning - my parents were involved in the Labour Party - against it passing. I am not sure that the answer is necessarily a straightforward repeal of the eighth amendment, but I am certainly open to that discussion. However, we should bring forward legislation for a referendum on this issue. That should be the next step.

This Government has a record in this area. After 20 years it was the Government that legislated for the X case. Many Members who would have found it hard to vote for that legislation due to their personal views did so because they knew it was their duty to pass the legislation as a result of the Supreme Court judgment. They walked through the lobbies. That is our record as a Government.

The programme for Government committed to the establishment of an expert group to examine the issue. The expert group reported and we followed that through to its conclusion and legislated for the X case. If parties are in favour of a referendum on this issue or on a broader amendment they should formulate their proposals and put them to the electorate at the next election, which is due soon. Then the incoming Government, if it has the mandate, should legislate for the case provided for in this legislation, where there is a fatal foetal abnormality.

I welcome the opportunity to speak on the Protection of Life in Pregnancy (Amendment) (Fatal Foetal Abnormalities) Bill 2013. First, I extend my sympathies to mothers and parents who have had to deal with the problems and challenges we are discussing today, particularly those who had pregnancies with fatal foetal abnormalities. We all agree that such an outcome is a life-changing event, deeply distressing and must be treated in the most careful manner. We must listen, understand and be compassionate. I appreciate that there will be very strong, sincerely held views on all sides about this issue, although the majority might support its introduction. We must deal with any debate relating to such complex and sensitive issues in a measured manner. We also must strive to have a legal framework that protects women, families and expectant parents.

The Bill deals with a specific sub-question in the debate about abortion, that is, abortion in the case of fatal foetal abnormality. Fatal foetal abnormality is defined by this Bill as " a medical condition suffered by a foetus such that it is incompatible with life outside the womb". It has been decided not to make use of a list of conditions as this would be too crude a tool in a balancing that includes appraisal of comorbid conditions and all to varying degrees. I note that two medical practitioners are to make the decision. The Bill requires two medical practitioners to agree and, having examined the woman, to jointly certify "in good faith that the foetus in question is suffering from a fatal foetal abnormality". Of the two practitioners "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". I note the argument that Article 40.3.3° of the Constitution, which guarantees to protect the equal right to life of the mother and the unborn as far as is practicable, applies to the unborn only when it is capable of being born alive and therefore does not apply in cases of fatal foetal abnormalities.

The Bill before us is not in line with Sinn Féin Party policy and, therefore, we cannot support it at this time.

This consideration is a matter for our members to undertake democratically and is currently being addressed. We have a policy that is democratically decided and we, as elected Members for Sinn Féin, have a duty to articulate and uphold the party policy we put before the electorate, irrespective of our personal positions.

We in Sinn Féin have stated previously that the woman's voice must be at the centre of the process and that no undue obstacles or delays should be put in the way of necessary treatment. We have debated this issue over many Sinn Féin Ard-Fheiseanna, and we have reached an agreed policy position. Some will not be pleased that we will abstain on this question but it is the members of our party, as democratically delegated, who will decide the policy. We will go before the electorate at election time to get a mandate for that policy.

We have a motion that will be put before our Ard-Fheis in a few weeks time that will facilitate discussion of this issue, and I look forward to that. We believe that the best way to move forward on this and other related matters is by measured and respectful debate in which we listen to all sides. Everyone in this debate has deeply held views, each believing their position is correct.

We believe that Irish society has a responsibility to not only address the issue of abortion but to also address the fact that approximately 5,000 Irish women travel to Britain each year for abortions. It is a national scandal, and we must address that. We support the right of a woman to seek a termination of a pregnancy where her life is at risk or in grave danger, and in cases of rape or incest. However, we cannot support Deputy Daly's Bill at this time as we have not concluded our discussions on this within our party structures.

That does not mean we do not hold this question in importance and address it on a regular basis. The opposite is the case. We have continuously updated our policy on abortion at successive Ard-Fheiseanna, and we will do so again over the next few weeks. We must ensure that our policies are truly representative of our members and that the members have a say in determining it. Two or three people in a room do not decide that.

What is keeping them so long?

Our party operates democratically, and the party delegates from each cumann in the party throughout the country will make that decision.

Our current policy would require an amendment to the eighth amendment of the Constitution. We believe that the issue of amending Article 40.3.3° should be referred to a second constitutional convention for that matter to be dealt with. There is a huge issue around that and it is something we will develop and articulate in the future.

We accept that those who have proposed this Bill, and many mothers and families, are anxious to have this issue addressed but any development of our position will only be reached through thorough consideration and debate within our party, and that will be take place in the next month. I look forward to that and to us reaching a conclusion on this issue.

As there are no more speakers offering, the Minister has a right to speak twice. He has five minutes.

I do not have much more to add to what I said previously but I want to pick up on a few points made by Deputies.

Deputy Wallace referred to the possibility that 30% of people in prison are wrongly convicted. I do not know if that is true. I certainly hope it is not, but a miscarriage of justice can be reversed, and people can be released. Terminations are not reversible. One of the reasons we do not have the death penalty in this country is exactly for that reason.

Deputies Wallace and Coppinger suggested that we pass the Bill and allow "someone to appeal it to the Supreme Court". That is not the way our Constitution works. Someone cannot just go to the Supreme Court. They need to have locus standi.

Our Constitution is a joke, by the way.

Essentially, what they are asking for is a hard case, and they are looking for that to happen again-----

It is 90 years old.

-----which is not a view I would take. The President can refer a Bill to the Supreme Court, but that is a different matter.

For whatever reason, the property tax managed to make its way into this debate with both Deputies Wallace and Murphy saying the Government did not have a mandate to introduce a property tax. That is not quite true. A property tax, albeit in the form of a site valuation charge, was in page 18 of the Labour Party manifesto. It is from this that our mandate for the property tax derives, and my party's manifesto included a commitment to introduce water metering and water charges. It is not correct to say, therefore, that we do not have a mandate to do what we have done in regard to both of those items.

(Interruptions).

Deputy Wallace should read the exact paragraph on that in our party's manifesto, which will explain it better for him.

Section 1(2) of the Bill states fatal foetal abnormality means "a medical condition suffered by a foetus such that it is incompatible with life outside the womb". No speakers other than Deputy Boyd Barrett mentioned any specific conditions but I will mention two more - a neurotube defect like anencephaly or trisomy 13, which is Edwards' syndrome. It cannot be said with certainty that those conditions are not compatible with life outside the womb because in many or even most cases they can be compatible with life outside the womb, albeit only for a short period of time.

What we do in the Dáil always is debate two laws: the law that is before us and the law of unintended consequences. That is in response to Deputy Coppinger's comment, "So what".

It is a woman's decision.

The question we have to address here is the meaning of the term "incompatible with life". Does it mean that the baby can be born alive, which seems to be what some of the speakers opposite have implied? As Deputy Tuffy pointed out, if it does cover babies that can be born alive it is unconstitutional and even if it does not the constitutional protection to the unborn also applies to the child in the womb. The Bill states "incompatible with life" but what does that mean? Is it life for a few hours, a few minutes, a few days or maybe for a few months? That is not a Jesuitical issue. It is something that must be defined in legislation and it is why it is important to get legislation right.

Deputy Collins suggested that it did not mean that at all but that it only meant cases - I am not aware of the diagnosis to which she is referring - where there is no chance whatsoever of the child surviving outside of the womb, even for a few seconds. Others in this debate have said something different, namely, a few minutes or maybe a few days. They were not clear.

Different again was Deputy Coppinger's contribution, which referred to women carrying dead babies. That is another thing entirely, and is totally incorrect. Somebody who is carrying what Deputy Coppinger describes as a dead baby is somebody who has had what we describe in medicine as a missed miscarriage. Every day in maternity hospitals throughout Ireland missed miscarriages-----

What about Savita Halappanavar? She was not-----

That was not a missed miscarriage. Deputy Coppinger does not know what she is talking about. It is quite bad. A missed miscarriage is a case where the foetus is dead in the womb - no heartbeat and no brain activity. It happens all the time in our maternity hospitals, and those dead foetuses are removed by dilatation and curettage, D and C. The Deputy does not understand the legislation she is proposing, which is very poor. If she were as informed as she were passionate, she would be a much better legislator.

She is not proposing the Bill.

The proponents opposite are clearly confused. They are making different arguments and believe different issues can arise from this Bill, and that is exactly what we always do with this issue. We pass legislation or amend our Constitution without fully understanding the consequences of that and what we are actually proposing. It is not defined well enough, and it needs to be much better defined.

This is flawed legislation. Even if it was constitutional, which it is not, it is bad legislation for the reasons I have explained and the reasons the Members opposite have demonstrated through their, somewhat at least, different interpretations of what it would mean. No matter what people feel about this issue, it is flawed legislation. The proponents do not even seem to understand it. It is unconstitutional in the view of the Attorney General, and for those reasons we will not support this Bill. However, I believe this is a matter we should deal with in the Thirty-second Dáil, which is not that far away, and that is a position I will be advocating within my party and elsewhere. The suggestion of a constitutional convention or something along those lines might be the correct way to move forward.

As the proposer of the Bill, Deputy Daly has ten minutes to reply.

I might even take a bit more time as the Leas-Cheann Comhairle, in doing his arithmetic on the allocation of time, miscalculated and left some of the Deputies short of their time. However, I will try not to stray too far off the ten minutes.

I am the person proposing this legislation, and I understand it perfectly. I will not have the Minister use the comments of some people who spoke in favour of this legislation to undermine the valid and legally sound legislation we are putting forward.

Three years ago, on the first occasion on which I introduced legislation to deal with some of the issues involved, I received a letter from a Church of Ireland bishop in Tipperary in which he congratulated me on taking a stand and indicated that he was sick of the systemic spinelessness of the political establishment. What he wrote came back to me as I listened to the contributions to this debate and it sums up where we stand. Not a single credible argument against the Bill has been put forward. What we have heard is very graphic testimony, most particularly from Deputy Boyd Barrett, regarding why the Bill is necessary. I was struck by the comments representatives from Terminations for Medical Reasons Ireland made at the briefing they gave on Wednesday last to the effect that in a ten-day period they were contacted by ten families affected by the enormous tragedy of fatal foetal abnormality. These are real people with real lives who are left in agony while we sit around, talk and fail to act.

The Bill before the House is incredibly limited. It was wrong of the Minister to refer to his being pro-life and that he does not support abortion on demand. I am pro-choice but I recognise Ireland's abortion reality. In that context, I am aware that the so-called eighth amendment ban did not ban abortion in Ireland. Rather, it just led to Irish women going to England, Holland or elsewhere to have abortions or to their procuring a few pills via the Internet in order to have them here. I support women in the context of all circumstances in which they might choose to have abortions.

No exceptions at all.

That is not what we are discussing, however. The Bill before the House is extremely narrow in scope and deals with the very limited circumstances. Aspects of this morning's debate have been marked by the most abstract, twilight zone-type aura. It is absolutely mad. A couple of weeks ago we tabled a proposal to repeal the eighth amendment and the people who voted against that proposal are now using the fact that the amendment in question has not been repealed to support their case. They state that the Bill is too limited and that we need to repeal the eighth amendment. That is the complete opposite of what they were arguing on the previous occasion. It is just not good enough.

The Bill deals with the narrow circumstances of fatal foetal abnormality. The Minister is absolutely correct to state that misdiagnoses are possible. Of course they are possible. That is why the families who find themselves in the circumstances to which reference has been made undergo two, three, four or even five tests. It is not going to be the case that a foetus which does not have a skull or a brain is going to proceed to become a championship footballer. The parents involved would will it to be so but it is not going to happen. That is the nub of the issue. The definition of being born alive has been discussed in the courts. It is not true to state that Article 40.3.3° of the Constitution only deals with circumstances where there is a threat to the life of the woman. That is not accurate. The judgment handed down by the High Court in the PP v. HSE prior to Christmas indicates that the article also deals with the right to life of the unborn and that the State has an obligation to defend that right as far as is practicable. Being practicable is not the same as what is possible. That has been the decision made in respect of a host of cases. The court specifically stated that it should not be a case of insisting that someone should continue with a pregnancy if it is an exercise in futility.

I did not state that people should go before the courts to have their private lives debated by barristers, etc. What I said was that those who put forward the argument that what is proposed is unconstitutional are wrong. They do not know whether it is unconstitutional. The only way to determine whether something is constitutional is if the High Court or the Supreme Court adjudicate on the relevant matter and deem it to be so. That is the reality. What the Minister is actually saying is that the current Attorney General believes it to be unconstitutional. Many other people, including the previous Attorney General, believe that she is wrong. Other former Attorneys General were proven wrong in respect of this matter, including the one who took the case against Miss X and lost. The reality is that we do not know whether it is unconstitutional. There is a provision - if the Government believes in the laws of the State - whereby this matter could be referred to the President and Council of State under Article 26 of the Constitution in order to have it adjudicated upon. Is there anything wrong with doing that? I do not believe so.

I am sick of hearing references to unconstitutionality, particularly as they appear to mean that we should just pack up our bags because we cannot do anything about particular matters. Declarations of unconstitutionality are regularly the subject of judicial reviews. What happens? Does the sky fall or does society stop working? Section 29 of the Offences Against the State Act, involving gardaí being allowed to issue search warrants in respect of their own investigations, was deemed unconstitutional in 2012. Did the world stop moving or was a national crisis provoked as a result? No. The provision was merely negated and gardaí were prevented from issuing their own search warrants. If we are right, then, as Deputy Wallace observed, we have an opportunity to alleviate the pressure and heartache that was experienced by people last week, that will be experienced by others today and that still be experienced by even more individuals next week. If we are wrong, then matters will remain the same and people who find themselves in the circumstances to which the legislation relates will not be able to avail of terminations. Unless we get to that stage, however, we cannot say whether that which is proposed is unconstitutional.

I am sick of what is happening. I have in my possession details of a litany of contributions made by over 50 Deputies in respect of this matter. In July 2013 the Tánaiste and Minister for Social Protection, Deputy Burton, stated that "... it is my personal belief that they should be enabled to do so here in Ireland. I would like to believe that we, as legislators, would be able to reach a position - at some not-too-distant point in the future - when we can provide for this." The former Minister for Justice and Equality, Deputy Shatter, is on record as stating, "On a personal level, I believe it is a terrible cruelty to require a woman to carry a child who has a fatal foetal abnormality to full term". The views of Minister, Deputy Varadkar, are also on record, as are those of the current Minister for Justice and Equality, Deputy Fitzgerald, who referred to the twilight zone in which families in this country are left. Three Ministers of State, Deputies Nash, Ó Ríordáin and Kathleen Lynch, also put their views on the record. In fact, practically the entire Cabinet has gone on record in respect of this matter. What has the Government done in respect of it, however? The answer is absolutely nothing. I am frankly sick of being told - on each occasion on which we raise matters - that action cannot be taken. If it is serious about this matter, what has the Government done? The statements to which I have just referred were made between two to three years ago.

It is an affront to me that 15 Labour Party Deputies published an open letter to the then Minister for Health, Deputy Reilly, in which they articulated many of the views we have just articulated in this debate. However, we face the prospect of their coming into the House on Tuesday next and voting against the legislation. I really hope that does not happen. It is very regrettable that Sinn Féin did not choose to deal with this matter at its party conference either last year or the year before. If it had dealt with it, then the party could have come around in respect of its position. In the context of the Labour Party and Fine Gael, all I can say is "My God". When the legislation relating to the controversial eighth amendment was before the House, the Whip was not imposed and Deputies from Fine Gael and the Labour Party were given a free vote. However, the Government will not consider allowing such a vote in respect of the Bill before the House. That fact is giving rise to a great deal of upset on the part of Deputies who are going to be obliged to vote against the Bill. I really do not care if they are upset, however, because I am more concerned about the people whose lives are being impacted upon by our lack of action in respect of this matter.

Deputy Boyd Barrett correctly stated that it is not possible to control nature. We are dealing with one of life's tragedies and although we cannot undo the damage that has been done, we can at least try to alleviate some of the problems that arise. Sadly, grief and loss are a part of everyday life for people. Bereavement is always difficult but what else would a civilised society do but try to rally around, support people and alleviate the burden that has been placed on them to the greatest degree possible. I do not know how long people are expected to listen to Deputies uttering platitudes in this House. They really are not interested in hearing such platitudes. The legislation before the House is long overdue and action is required. Between now and Tuesday next, the Government must reconsider its position and ask what would be wrong with passing the legislation. The answer to that question is nothing. There would be everything right about passing it because it would give relief to people who currently find themselves in the situation to which it relates. It would also lift the burden under which others have been placed, remove the stigma from them, ease their heartache and bring to an end the violation of their international human rights.

It is simply not good enough. People do not want excuses, they want action. I hope the Government will strongly reflect on that before Tuesday.

Question put.

In accordance with Standing Order 117(1A), the division is postponed until immediately after the Order of Business on Tuesday next, 10 February 2015.