This Bill provides the first opportunity for a full debate in either House of the Oireachtas on the subject of family planning. It allows the Seanad to discuss the general principles involved in any changes in the law and it also allows the Seanad to consider the specific framework which Senators Horgan, West and I have put forward in this Bill for such amendment. I should like to appeal to my fellow Senators: let us approach this subject with compassion rather than dogmatism and with open-minded concern rather than bigotry. Family planning involves the most intimate relationship between a man and a woman. It is a subject matter which has been discussed very broadly outside Parliament in recent times. It is also a subject which was taboo for discussion for a very long time. It is now to be debated inside Parliament.
It is worth noting that family planning is now supported positively by all the Christian churches. This includes the Catholic Church which is in favour of responsible parenthood, in favour of family planning. The difference between them relates only to choice of means. This Bill would create the possibility of a wider choice of means of family planning and the possibility of getting full information on the subject. It is in other words an enabling Bill. It is in fact entitled "An Act to facilitate family planning and for that purpose to amend section 17 of the Criminal Law (Amendment) Act, 1935, sections 16 and 17 of the Censorship of Publications Act, 1929, and sections 7 and 9 of the Censorship of Publications Act, 1946." It would not compel any person to use contraceptives, or any doctor to prescribe contraceptives, or any chemist to stock contraceptives. It would facilitate family planning by allowing choice to the individual citizens concerned.
When an attempt was made by Senators Horgan, West and me to introduce a similar Bill in 1970, four years ago now, there was a significant resistance both in the Oireachtas and in the general public to any change in the law. In the intervening period no Government Bill was introduced either by the previous Government or by this Government. When we tabled this Family Planning Bill there was a similar resistance to any change. Meanwhile however the Supreme Court has acted on one section of the existing law, that is subsection (3) of section 17 of the Criminal Law (Amendment) Act, 1935, and has deemed that section to be repugnant to the Constitution. This was one section which we had repealed in the framework of our Bill, which certain bigoted, unthinking people opposed, in a blanket form— opposed in many cases without having read the Bill because they opposed any change in the law.
It is from this unthinking approach that I want to move us to an approach of being open to discussing family planning, open to the possibility of changing the law. I want to refer to the judgment of one of the judges in the Supreme Court, Mr. Justice Henchy, on this section to bring the subject into a human context and out of an academic or dogmatic context. I quote from the text of Mr. Justice Henchy's judgment in the recent Supreme Court decision in the McGee case, where he says:
Section 17, in my judgment, so far from respecting Mrs. McGee's rights, violates them. If she observes this prohibition (which in practice she can scarcely avoid doing, and which in law she is bound under penalty of fine and imprisonment to do), she will endanger the security and happiness of her marriage, she will imperil her health to the point of hazarding her life and she will subject her family to the risk of distress and disruption. These are intrusions which she is entitled to say are incompatible with the safety of her life, the preservation of her health, her responsibility to her conscience and the security and wellbeing of her marriage and family.
Those who in a dogmatic and blanket way oppose any change in the law have opposed a change which a Supreme Court judge was able to look at using that sort of phraseology, and I emphasise that this is a subject matter on which we must be compassionate and which we must look at without closed minds.
I submit that we have a twofold task before us in considering the subject of family planning. We have the task, firstly, of regularising the position following the Supreme Court judgment in the McGee case. We have the task, secondly, of examining the law as it stands in relation to family planning and deciding whether it is adequate to promote the basic human right and promote the right of information on this subject matter.
I want to turn first to the more limited task of regularising the position as a result of the Supreme Court judgment. It is my contention that the law as it stands is unsatisfactory and could not be supported by any responsible Member of either House of the Oireachtas, whatever his party affiliation or whether he be independent of the political parties.
I would submit that the case which I shall make for the unsatisfactory nature of the law should make it clear that, whatever the details of the Bill to amend the law on family planning, there could be no doubt of the obligation and duty on this Oireachtas to regularise the legal position by bringing in a law. I believe that it is not a time for short-term party advantage or playing party politics. The subject is too important; it is too basic; it has too significant human consequences.
Let us turn then to an examination of the present state of the law. As the law now stands, any person, married or unmarried, and with no age limit, can use contraceptives, manufacture contraceptives, distribute contraceptives and, since the recent judgment of the Supreme Court in the McGee case, import contraceptives. Also, the pill is regarded not as a contraceptive but as a cycle regulator and therefore does not come within the legislation prohibiting the sale of contraceptives. More than 38,000 Irish women, be they married or unmarried, use the pill under a prescription every month. However none of these people can inform herself fully on on the subject. As the law now stands, they cannot acquire responsible literature describing the various forms of contraceptives, warning them of the potential danger of the contraceptives which they are importing from abroad, warning them of the conditions which make it unsafe for them to use the pill and generally advising them in a full manner on the whole question of family planning and of the choices open, if the person wishes to exercise choice, in the methods of family planning.
The present situation is one of lack of coherent regulation. There is a very real danger that citizens will suffer injury to their health through lack of responsible information. It is an untenable situation in that the only way in which people can get certain types of contraceptives is by importation from abroad, with no control and no safeguards. It is a most unsatisfactory and dangerous state of the law in that people could rightly say that the country might be flooded with literature and with these devices. Anybody looking at this country at the moment could well think that we have a contraceptive mentality, so much has the matter been discussed in general outside Parliament, but until now, alas, not within Parliament.
As well as that we have incidents like the prosecutions in the District Court yesterday, which bring the law into hatred, ridicule and contempt. It is not good for law itself and for the institutions of this State that responsible and reputable doctors, gynaecologists and professional people should be hauled before our criminal courts on such a matter. The only good result from the prosecutions yesterday was that they were dismissed. There is no doubt that such examples are unhealthy for the institutions and laws of our State and bring them into contempt.
The argument is very strong that the law in so far as it regulates or controls the whole subject of family planning is not satisfactory, is no longer a coherent structure and has very real dangers built into it. I would hope that the Members of the Seanad in the course of this debate, and also the Members of the other House, in examining either this Bill or a Government Bill, when that is forthcoming, will have the courage to face up to this situation, because they have the advantage over their constituents. The average Irish person is not faced in the same way with the opportunity to examine the present state of the law and to consider a proposal for change. The average person may very well be confused, is obviously concerned, and rightly so, and may in consequence be resisting change. This is a very good example of where there must be leadership from the representatives of the people, and not a rather cowardly fear of the grassroots opinion and fear of change, lest it might translate into a turning away either from a particular politician or from a party.
Therefore I would submit that we ought to take this subject matter out of the realm of party politics by agreeing to the concensus view that there is a need for the law to be regularised in the public interest. We can differ perhaps on the degree to which there might be liberalisation or the degree to which there might be restrictions and controls built in. But on the fundamental proposition of need for regularisation of the position through an Act of this Oireachtas, I would submit that no Senator or Deputy examining the position can dissent from that in good faith.
In addition, so far I have been examining the precise state of the present law, but I would submit that persons reading in full the judgments of the members of the Supreme Court in the McGee decision would not be content to leave it at that. They would have to take into account that the judges made it clear that they ruled on the unconstitutionality of subsection (3) of section 17, because that was the only section which was strictly relevant to the decision, and they left it very much in doubt as to whether the other sections were constitutional. I shall quote from the judgment of Mr. Justice Walsh to illustrate this:
As this particular case arose primarily out of the ban on importation, I think in so far as Article 41 is concerned, the declaration sought should only go in respect of subsection (3) of section 17 of the Act of 1935. That does not necessarily mean that the provisions as to sale in subsection (1) cannot be impunged. If, in the result, notwithstanding the deletion of subsection (3), the prohibition on sale had the effect of leaving a position where contraceptives were not reasonably available for use within marriage then that particular prohibition must also fall. However, for the moment I do not think it is necessary to make any declaration in respect of that.
This is a clear indication from a Supreme Court judge that he is not ruling on the constitutionality of the section because it is not strictly relevant to the case before him. He is only declaring the ban on importation unconstitutional.
With that particular extract from the judgment of Mr. Justice Walsh one should read a short extract from the dissenting Supreme Court judge in the McGee case, the Chief Justice. Mr. Justice Fitzgerald was the only member of the Supreme Court to dissent from finding that subsection (3) of section 17 was repugnant to the Constitution, but he said in his judgment:
It is, I think, well to realise that the plaintiff's claim here is as a citizen, and that if any portion of section 17 of the 1935 Act is declared unconstitutional the benefit to be derived from such a decision is equally to be enjoyed by every other citizen, be they married or not.
In other words, Mr. Justice Fitzgerald was making it clear that any ruling was on the basis of the citizen's rights and applicable to all citizens, married or not.
There is one possible way in which the law in relation to family planning in this country could continue to be changed. We could continue to have people bringing individual cases before the High Court and Supreme Court and testing the constitutionality of the prohibition on sale of contraceptives and the constitutionality of the prohibition on being able to read about family planning in the relevant provisions of the Censorship Acts. We could have over a period of a number of years—because law suits take a length of time—a series of decisions which chipped away in a piecemeal fashion at our law, leaving an unregulated and unco-ordinated situation and one which gradually liberalised—probably more than many legislators would wish—the law relating to family planning.
I would submit that this would be a very sad state of the law if legislators abdicated their responsibility and left it to the courts; so that we would be dependent on individual plaintiffs bringing their single problems before the court, to gradually chip away at the existing law. We must face up to our responsibilities as Members of this Parliament. We must restore the balance by providing a properly planned and properly considered framework within which we regulate the whole subject matter of family planning.
Action by the Oireachtas is necessary for two reasons: first, because of the nature of the subject matter. If it becomes necessary for individuals to bring actions in the courts the results will be pragmatic, piecemeal, unco-ordinated and will result in a bad overall situation; secondly, because political scientists observe it as a weakness in the system if one leaves the legislating to the judges. It is not the function of the Judiciary to legislate. It is the function of Parliament. We must not abdicate to the Judiciary the function of gradually finding our laws unconstitutional and, therefore, in effect legislating. We must take upon ourselves the primary responsibility. We must exercise the function of legislating without fear of the grassroots, without fear of misunderstanding and with a compassion and a concern for the human beings who are affected in their daily lives — in their intimate relationships—by the laws which we pass.
This is the first task before the Oireachtas; to regularise the unacceptable nature of the existing law. The second task I believe goes further. It is to consider the objective of the proposers of this Family Planning Bill. We seek to amend, for positive reasons, the law relating to family planning and to protect and sustain the right of individuals to use contraceptives and to plan their families and also to ensure that they have the proper access to information in this regard.
In describing family planning as a basic right we find that Ireland has clearly recognised that the right of family planning is a basic human right when it voted in favour of Resolution No. 18 of the United Nations Human Rights Convention in Teheran in 1968. This was a commitment by Ireland at the international level, made in 1968. The relevant passage of the resolution is worth quoting. It reads:
Couples have a basic human right to decide freely and responsibly on the number and spacing of their children and a right to adequate education and information in this respect.
We have seen other examples of where we put on a good international face. Outwardly we are in favour of the right to family planning and full education and information on this. Inwardly, in our national law and institutions, we do not always comply with what we regard as a basic right and obligation we are happy to subscribe to on the international level.
The implications of the Teheran resolution is that the law of the state should protect this right; it should ensure that there is access to adequate information and to a choice of means of family planning. In his judgment in the Supreme Court Mr. Justice Walsh made it clear that this right is recognised by the Supreme Court and recognised in a very substantial and unqualified form. I quote:
The sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. If the husband and wife decide to limit their family or to avoid having children by use of contraceptives, it is a matter peculiarly within the joint decision of the husband and wife and one into which the State cannot intrude unless its intrusion can be justified by the exigencies of the common good.
The question of whether the use of contraceptives by married couples within their marriage is or is not contrary to the moral code or codes to which they profess to subscribe or is or is not regarded by them as being against their conscience could not justify State intervention. Similarly, the fact that the use of contraceptives may offend against the moral code of the majority of the citizens of the State would not per se justify an intervention by the State to prohibit their use within marriage. The private morality of its citizens does not justify intervention by the State into the activities of those citizens unless and until the common good requires it.
It is not sufficient to say that the majority of Irish people do not want to use or do not approve of contraceptives. It is not possible to justify any State intervention on those grounds. The Supreme Court has made it clear that there is a basic right to plan a family, a basic right to use contraceptives to do so, and that the State cannot justify prohibiting this right on the grounds that it offends against the views of the majority in the country.
There is a good deal of authority in the Constitution for this basic right. In Article 40, section 1, it is provided that "all citizens shall, as human persons, be held as equal before the law". This article has been interpreted in various judgments of both the High Court and the Supreme Court as referring to equality in their human personality rather than equality in an economic sense. The State in Article 40.3.1 "guarantees in its laws to respect, and, as far as practicable by its laws, to defend and vindicate the personal rights of the citizen". Here again the court has defined what these personal rights are and has made it clear that they are not confined to personal rights as set out specifically in other sections of the Constitution but can be stated from time to time by the courts. The obvious example is that the Constitution at no stage guarantees a freedom of movement around the country and yet this would be regarded by the courts as a personal right of the citizen.
In the case involving fluoridation of drinking water some years ago the Supreme Court decided that a person has a right to bodily integrity, and in the McGee case the judgment of several Supreme Court judges—and here one notes the judgment of Mr. Justice Griffin—recognised a right to privacy. I would submit that the rights of the citizen include a right to medical safety and that as the law stands at the moment too many women—and it is women in this case — are at risk on medical grounds because of the law relating to family planning, because of the exclusion of choices in methods of family planning.
The pill is the only cycle regulator or contraceptive available. It is not a type of contraceptive which is medically sound for all of the women who might wish to use contraceptives. For example, the pill is unsuitable in many cases for medical reasons: if there is a history of deep vein thrombosis or pulmonary embolism—and this will usually have been associated with a previous pregnancy—or if a woman suffers from hypertension, high blood pressure, diabetes, liver disease or from varicose veins or even migrane. Very often these are problems of older women, women who have already had a number of pregnancies and who are now high-risk women for this type of contraceptive. It is not enough to give the simple viewpoint: "What is the problem? The pill is freely available." The pill is not medically suitable for physical conditions of a large number of women who may be the very women who most need to be fully informed on the methods of family planning in order, if they wish, to be able to regulate their families in this way.
We need to provide in our legislation for the availability of full medical advice and for full information on the various methods of family planning, showing the dangers of certain contraceptives for certain conditions. This choice is not provided by allowing people to write away to England or elsewhere and to import devices for their personal use without the medical protection to which these people are entitled.
I would submit that if the State is really protecting the personal rights of the citizen it must also protect their health, particularly that of women of a certain age who have already had a number of pregnancies. These are the women at greatest risk, already mothers of families. These are the particular women at the moment who are in great medical danger because of the state of the law.
In other provisions of the Constitution we have further support for a change in the law in order to fully defend and vindicate the rights of the citizen. Article 41.1 recognises the family as "the natural primary and fundamental unit group of society" and guarantees that the State will "protect the family in its constitution and authority." This article was used extensively in submissions before the Supreme Court. It must be obvious to anybody who is genuinely concerned about family life in Ireland that a very crucial factor in protecting the family is to enable a choice in family planning methods to be available. It is basic to the family structure in Ireland that we make the choice in methods of family planning available to those who wish in conscience to use contraceptives and also that we educate and inform by amending our Censorship Acts to allow responsible literature about family planning to be available.
Article 44.2 provides that "Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen." We went to very elaborate trouble not so long ago to remove from Article 44 of the Constitution the provision relating to the special position of the Roman Catholic Church. We did this with the best of motives. That particular provision had been interpreted as being evidence of discrimination in favour of the Roman Catholic Church in our Constitution. We wished to remove it to ensure balance within the society of the Republic, and also to show our goodwill to the Northern part of the country in allaying fears which had been expressed there.
For the same reason but with much more significance we must ensure that the laws of the State do not reflect the morality of a particular religious denomination. It would be useless hypocrisy for which we would be rightly condemned if we removed a declaratory section which appeared to discriminate in favour of a particular church and left in our laws the actual teeth of that discrimination by favouring the denominational approach of one church in its views on family planning. We cannot afford to leave such legislation on our Statute Books.
It would be bad for our own community in the South, which is what we are primarily concerned with and where we find adequate reason for changing and amending our laws; and it would be bad in a context where discussions are in progress for establishing a Council of Ireland. We would have no right to the respect of those in Northern Ireland—nor indeed to our own self-respect—if we could remove a declaratory section which gave a particular church a privileged position but did not remove the laws which supported the privileged position of that church by repeating the denominational moral outlook of that church which is in conflict with the moral outlook of other Christian churches in this State.
We can have no doubt that on this question of family planning the official views of the churches are different and that their official moral outlook is different. Any doubts which members of the Seanad might have had on this point must have been allayed by communications received from the various minority churches. Members of the Seanad would agree with me that to receive such communications is highly unusual. Members of the minority religions in the South do not readily express an official view on legislation coming before the Oireachtas. This is not their usual pattern. It is very heartening that they have expressed their official position by informing every Senator and every Deputy of the authoritative view of these minority churches. Their views should be respected and should be given equal standing with others who might have a different moral outlook also supported by the authority of their church.
I should like to put on record the views of these minority bodies, beginning with the statement of the General Synod of the Church of Ireland sent in a letter to Members of the Seanad dated 1st February, 1974. It reads:
The Archbishop of Armagh and our committee have been following with keen interest the proceedings in the Seanad and the public discussion on the Family Planning Bill, 1973.
Because of our deep concern regarding the personal rights and freedoms involved in this issue we would like to draw your attention to the views of the Church of Ireland on this and related matters.
These views are most clearly embodied in the terms of the following Resolution passed by the General Synod of the Church of Ireland in 1971 without a single dissenting vote:
That this house welcomes the efforts being made to amend the legislation concerning contraception in the Republic and fully supports the Archbishop of Dublin in his affirmation of the declaration of the Lambeth Conference of Anglican Bishops in years 1958 and 1968 which concluded that "the responsibility of deciding the number and frequency of children has been laid by God upon the consciences of parents everywhere; that this planning, in such ways as are mutually acceptable to husband and wife in Christian conscience, is a right and important factor in Christian family life."
Indeed, the whole question of family planning and related issues has been the subject of comment in this Committee's Reports and appendices thereto since we were first established. The relevant extracts are attached for your information.
We believe that the sum total of these extracts combined with the 1971 resolution quoted above will make the Church of Ireland views on this whole subject abundantly clear. We would, however, be glad to elaborate if so requested.
This is not a letter from a member of the Church of Ireland in his individual capacity. It must be regarded by Members of this House as the official view of the Church of Ireland on the subject of family planning legislation in Ireland, requesting a change in the laws, requesting that their views— their different moral outlook, their attitude towards family planning—be given equal consideration and respect by our laws. This should not be a matter on which they find their normal viewpoint is in conflict with the criminal law of the State. Because that is really what we are talking about: the use to which we put the criminal penal law of the State. In these circumstances the official view of the Church of Ireland body is that the criminal law is in conflict with their moral outlook, their moral attitude on family planning.
I turn now to the letter sent by the Presbyterian Church in Ireland, dated 4th February, which states:
Dear Senator:
It has sometimes been suggested that it is only some individuals who have protested at the legal prohibition of modern family planning or use of contraceptives as an infringement on the rights of those who conscientiously and responsibly believe this to be both moral and desirable.
The General Assembly of the Presbyterian Church in Ireland having considered over a two-year period a report on Christian Sexual Ethics, which included a discussion of birth control, in June, 1961, resolved as follows:—
That the General Assembly approves of the following statements:—
(a) The world population trend demands that the question of family limitation be faced realistically, and that the attempts made by Governments to encourage voluntary methods of birth control be viewed sympathetically.
(b) Family planning is in itself a good thing. While persistent abstinence may be practicable for some married couples it is fraught with dangers for most.
(c) The use of contraceptives within marriage should not be regarded as in itself wrong. Nevertheless the decision to use them should not be taken lightly or unadvisably, nor should they be made a means of avoiding parenthood altogether for purely selfish ends.
In view of the Bill upon this matter presently before your House it is deemed desirable that you should be informed of the official position of our Church.
So here again, in a direct letter to each Member of the Seanad so that none of us can have any doubt about it, we have the official view of the Presbyterian Church in Ireland as well as the official view of the Church of Ireland. This is not some tiny minority speaking in their individual capacity and possibly dissenting from the official view. It is the official view expressed publicly by these churches who ask us to respect their moral outlook. We do not at present give them equal treatment before our laws. We do not respect their conscience. We do not respect their right to have their own moral viewpoint and the moral authority to teach that viewpoint and to hold it in relation to family planning. We deny that by our criminal law; we deny it in our censorship laws. We should be acutely aware that our laws at the moment do have this restrictive and inhibiting effect.
Finally I want to mention the third of these minority religions which has seen fit to put its views officially to the Members of the Seanad. The Religious Society of Friends, the Quakers, in a letter dated 15th February, 1974, communicated with Members of the Seanad as follows:—
The Religious Society of Friends (Quakers) in Dublin welcomes the decision of the Government to introduce a Family Planning Bill in the current session of the Dáil.
It trusts that the question of the use of contraceptives for family planning will be left to the individual conscience and therefore hopes that the Bill will not include any unrealistic limitations on their availability.
In addition it is considered important that information and education on family planning should be freely available. It urges that the Censorship of Publications Act 1946 be amended so that publications should not be banned simply because they advocate the use of contraceptives.
That letter is signed by the clerk of the Dublin monthly meeting of the Religous Society of Friends. Again it illustrates an unusual intrusion into the public sphere in what has become a political issue; showing the concern of these minority religions that their official voice be heard, be understood, be uncontradictable.
There is a danger in quoting from these clear statements by the representative bodies of the minority religions that this may be regarded as a question of a religious minority. But of course this is not so. The minority concerned in seeking change to allow choice of means in family planning is not a religious minority. I hope we will not have the hypocrisy to try to maintain that it is a religious minority. It may be a minority of the citizens of the State; but they span all religions and none. This is clear from the number of women who are using contraceptives, from letters from all around the country sent by women who are prepared to sign their names and state their religion. It is clear not only that this is not a religious minority but that it is, in fact, a more significant proportion of the population than had been realised heretofore.