Vol. 92 No. 11
Before we enter on Committee Stage of this Bill, I should indicate to the House that amendments Nos. 4, 5 and 6 in the names of Senators Robinson and Keating are out of order on the ground that they involve a potential charge on the public revenue.
SECTION 1.
I move amendment No. 1:
In page 2, after line 16, to insert the following:
"‘abortifacient' means any appliance, instrument, drug, preparation or thing designed, prepared or intended to terminate pregnancy which has resulted from sexual intercourse between human beings;".
The purpose of this amendment is to insert in the definition section a definition of "abortifacient". In the Bill as printed the word appears in section 10 but there is no definition of it contained in the definition section and this should be remedied. This also ties in with another amendment which I have, No. 14, concerning the appointment of a committee to decide on whether a particular thing is or is not an abortifacient. I understand that the workings of some of these devices may cause difficulty in deciding whether their effect is to act as an abortifacient to cause an abortion or whether they are contraceptive in the strict meaning of the term. I think, however, that the matter should be clarified so far as the Legislature can clarify it for two reasons. One, it puts our position on this matter clearly beyond any doubt, that we universally, unanimously I hope, will declare to the public that this House is totally against the principle of abortion in any shape or form and that we want to close the door totally on the admission of that principle. We want to do it in our legislation here and we do not want to leave any interpretative loopholes to be filled subsequently or opened subsequently by a court on some subsequent day.
I have no doubt that everybody in this House and in the other House as well is opposed to the practise of abortion. This amendment is designed to spell out in statutory form that opposition. The first leg of the amendment refers to the definition section where abortifacient should be defined. People might say that there is no need to define the obvious but there is a danger that one would get into a circular definition — an abortifacient is something which causes an abortion. We have to avoid that danger by defining exactly what we mean by an abortifacient. We do not want some other body at some other stage to try to decide what we intended by the word "abortifacient" in section 10. Consequently we should define very clearly what it means in the definition section.
The court in the McGee case, when it introduced this so-called notion of marital privacy — a concept which I hope will be argued out more thoroughly on some other occasion — unwittingly opened the door by introducing that concept to the introduction of the principle of abortion on the grounds that abortion or the working of an abortifacient could be a matter peculiarly within the competence of marital privacy. We should make it clear so far as we can in this House that the Legislature is totally opposed to any extension of that principle so as to admit that abortion would be a constitutional right under the guise of being the implementation of marital privacy. Consequently I would urge the House to accept this amendment for the reasons I have stated.
I support Senator Cooney's amendment. Perhaps I should say that in the area that we are talking about, while not in any sense claiming expertise in human medicine, I do by my professional training claim a certain expertise in mammalian physiology and mammalian reproduction also and therefore in the matter of the distinction between a contraceptive and an abortifacient which Senator Cooney's amendment seeks to clarify. I think that if we look at the history of a number of sorts of contraceptive we can see that there has been a doubt as to their method of action and we can see that certain commercial interests have been willing to obscure that doubt for the sake of actual monetary advantage.
There are two categories of contraceptive to which this doubt applies. One is the so called IUD which is inserted into the uterus and which may act to prevent conception. By that I mean the union of a living ovum with a living sperm. It may act as an irritant in the intra-uterine location to prevent the implantation of that fertilised ovum. It therefore may act in an abortifacient way.
If we look worldwide we see that abortion is a problem. We see further that attitudes differ worldwide. There is no doubt that the attitude in this country is very resolutely, very firmly and overwhelmingly against abortion. An effort is made on the part of those people who want to outlaw contraception to say contraception and abortion are really all the one thing and one leads to the other. Indeed, that point has been argued in both Houses on this Bill. Therefore to ensure a proper professional approach to the matter on the part of those companies offering devices for sale or offering chemical preparations for sale, a definition in the Bill which forces them to declare, even if there is a doubt, that a device or a pharmaceutical product may function only as a contraceptive, it may function only as an abortifacient or it may function as both. We want to see a position where the latter two categories are simply not offered for sale in Ireland, and that people who believe they have a conscientious right to contraceptives are not put into a situation where they may, even inadvertently, be using abortifacients. Therefore, this distinction, though it is a not an easy one is a fundamentally important one.
I am surprised to note that a word of this kind, which is a highly specialist word with a technical meaning, is used in the text of the Bill without being subject to a definition. I think that all sides, and perhaps even the tiny minority who believe in abortion in certain very defined circumstances, would wish for clarity on this, because what is not permissible is that the two quite distinct categories of contraceptive and abortifacient should be confused. We have seen — it is a real issue in this sense — the drug companies behave irresponsibly in regard to pharmaceutical products over a couple of decades. The record of the use of hormone-based preparations, whether originally natural hormones, but in all the subsequent developments synthetic hormones or hormones derived in some instances from plant sources or semi-synthetic hormones, both by the pharmaceutical companies and by the medical profession has been irresponsible. They have been prescribed in quantities that seemed to be excessive; there is widely documented medical literature on the harm they do. But the attitude of the drug companies was: here was something that once somebody opted for product X, it was not one does like a vaccination or a shot of antibiotics or something, it was to be used for the whole reproductive life of that person. You had a tied-in consumer who was dependent on that product substantially for decades and they pushed these products out with very heavy advertising, without sufficient research either on their activities with regard to the reproductive system or indeed their activities in regard to circulatory system and other systems of the body.
The record on that is doubtful. The more prudent, responsible and thoughtful doctors have, in fact, been pulling back. I want to make it clear that passionately as I believe in the right of contraception for those who wish it — and I do not need to reiterate that because it is in my speech on Second Stage — we have to be extremely careful to make a distinction between abortifacient and contraceptive on the one hand and, secondly, we have to be extremely careful to guarantee responsible and good behaviour on the part of the suppliers and to guarantee the utilisation of all available medical knowledge. We have to guarantee that in the light of their record over the past couple of decades during which things like intrauterine devices and contraceptive pills based on hormones have been widely available. Had their record been more responsible and indeed had the scrutinising effects of some of the State agencies in some of those nations which have historically permitted the use of contraceptives been more rigorous, then we would not have had the adverse medical records that are now so widespread all over the world.
I want, as an advocate of contraception, simultaneously to advocate the greatest possible protection of the public and the greatest possible enforcing of good behaviour on the great companies who have made enormous profits out of this, and the greatest possible and clearest distinction between contraceptive and abortifacient. What I would call the cause of contraception, is in fact, damaged by the irresponsible use of products and the cause of contraception is damaged by the confusion of contraceptives with abortifacients, by the blurring of that distinction. It can only do good to the peace of mind of those who believe in contraceptive availability on the one hand and the peace of mind of those who find this whole concept abhorrent on the other. For everyone's peace of mind clarification of this issue can only be beneficial. So, I support Senator Cooney's amendment.
In the medical field there is the question of the implantation of the seed. Does this section mean that if a woman goes to England and has this operation performed and becomes pregnant it is all right to use an abortifacient to terminate the life of that particular child because there was not actual sexual intercourse between two human beings?
That is exactly the point I was going to make. First of all, I want to make some statements which would perhaps clear the ground a bit for us in our approach to this matter.
I am sure we are all agreed that abortions and abortifacients are not acceptable. In this House and in the Dáil and in the community at large we are firmly and categorically opposed to any form of abortion. This House and the Dáil very accurately reflect the opinions and feelings of the general public on this matter. The first point I want to make is that this Bill does not deal with abortion at all. This Bill deals with family planning and the availability of contraceptives for family planning purposes. I deemed it prudent in framing and structuring the Bill to save the situation in so far as abortion and abortifacients are concerned, to preserve the existing total prohibition on abortion. That is achieved in section 10. But I want to make it clear to the House that section 10 is a saver section, a section inserted to preserve the existing situation. The Bill does not deal with abortion except in that limited way. The law on abortion is in the statute of 1861. That statute has stood the test of time. It would be a major and important statutory undertaking if we were to begin legislating again on abortion. That would require an entirely major piece of legislation and it would be a very difficult piece of legislation. My approach has been to let the existing law stand but to clarify the situation in so far as the law on abortion might impinge or have an impact upon this legislation. That is achieved by section 10. If you were to have some sort of a definition of abortion or abortifacient you could not possibly attempt to do that without going into the law of 1861 again and looking at it, recasting it, restructuring it and restating it. That is the strategy of what is involved here. This Bill deals with family planning and contraceptives.
Apart from that, I want to make a few other points. This definition which is given here and the point made by Senator Dowling illustrates exactly the sort of difficulty we would create for ourselves were we to start definitions of this sort. We would be getting into very dangerous territory, very complicated and complex territory, because as Deputy John O'Connell pointed out in the Dáil the medical knowledge on this whole area is still evolving; it is not yet clearly defined; it is by no means certain in a number of different areas.
The wording of the definition given by Senator Cooney shows the error we could fall into. It clearly excludes the termination of a pregnancy which was created by one of these newly developed techniques which we read about in our newspapers whereby births and pregnancies are brought about not by sexual intercourse but by other methods. Thus the termination of such a pregnancy would not come within the terms of this definition. I do not say that if we wanted to do so we could not perhaps re-cast the definition to cope with that situation, but it shows the sort of area we are going into and the dangers there are in trying to define matters in the present evolving, incomplete state of medical knowledge on this whole subject of pregnancy and fertilisation and so on.
The general point I want to make on it is this. In an area like this it is much better to be simple and clear cut — if you like, the old Ten Commandments principle, "thou shalt not", or "thou shalt". I think the right approach here so far as abortion and abortifacients or any of those things is concerned is to state the principle and then leave it to be decided by the courts at any time in the light of the best available medical knowledge at that time. That is the approach I have adopted here: the Bill simply states the simple universal rejection of abortion and abortifacients. The situation would then be that at any time if the matter arises it is something to be decided in the light of the highest level of scientific medical knowledge and on the facts of the situation.
I firmly believe that attempting a definition of this sort in this legislation would certainly get us into a number of difficulties and we might defeat the very purpose we are trying to achieve by attempting to be specific in this way. The danger of trying to be specific, as anybody here who has had the experience of framing legislation knows, is that one inevitably excludes something that one wants to include by the inadequacy of the definition.
I would hope this amendment would not be pressed because I do not think it would achieve the objectives that the proposers have in mind. We are all agreed on the overall purpose we wish to achieve; we wish to have the law as strong and as clear as possible in the prevention and prohibition of abortion and abortifacients. I think the simple and direct approach which I have adopted in the legislation in the Bill is the better way.
I am in sympathy with the amendment and with the intention behind it because, as Senator Keating has said, the public does suffer from certain anxieties in relation to this constant confusion between abortion and contraception. Therefore I find myself in sympathy with the purpose and the spirit of the amendment. On the other hand, as the Minister said, the whole question of abortion has already been dealt with in legislation and section 10 in this Bill is quite specific in reinforcing the prohibition against it. It is comforting to one who abhors the notion of abortion — and I could hardly ever see myself in a position where I would support any measure to allow it on to our Statute Book — to get the assurance of the Minister on the matter. But considerable weight is to be attached to his explanation as to the kind of difficulties that might be raised by Senator Cooney's amendment. It could assemble more problems that it would dispel. The Bill is quite unequivocal in its opposition to abortion. So, while I would feel sympathy towards Senator Cooney's amendment, I do not think it is one which I would tend to support.
It is common case on all sides that the Bill is against abortion. But this is not a Bill dealing with abortion; it is a Bill dealing with the provision of contraceptives. For the first time in the history of the State, Parliament is about to pass legislation providing for the making available of contraceptives in certain restricted circumstances. We are all aware that this is a grey area but nevertheless we are all aware that some of these contraceptives are or might be abortifacient in their operation.
What I am seeking to do in this Bill is to try to spell out very clearly that in making contraceptives available as a matter of law to certain categories of the population, at the same time we want to make it doubly clear that we are not permitting the making available of any device which might be an abortifacient. That is what I am trying to do in this amendment. It is not enough for the Minister to say that abortion is saved by section 10. Of course it is saved in section 10. The criminal law is there in the 1861 Act anyway and there is nothing in that Act that I could see that would require that saver. That is not what we are talking about.
We are talking about this grey area of contraceptive or so-called contraceptive devices that might be abortion-making in their operation. It is to spell out that situation that I move this amendment. All of us are opposed to abortion and the law on abortion is quite clear and straightforward, but the law with regard to contraceptive devices whose operation might be in some doubt is not clear and this is what I want to spell out in this Bill and I suggest to the House that this Bill is a suitable medium for making that particular law clear.
I am suggesting that it be made clear in two ways: first, in regard to the word "abortifacient" which Senator Keating pointed out is a technical word used in section 10, that we attempt to define it in the definition section so that we discharge our obligation for passing laws that are certain and clear and that we are not "passing the buck" to the courts to do our work for us. I think we should pass laws here that leave the courts in no doubt as to what our role is and what their role is, and their role is the application of laws passed by this House — occasionally the interpretation of laws passed by this House, but never, I hope, the making of laws, because this House has left a vacuum or a gap in what it has passed.
I want to suggest that in this instance on this subject we have an obligation to be very clear that we are not passing a law that permits the supply of devices which might be abortifacient. We want to pass a law that prohibits the supply of any such devices and I would suggest to the House that the way we do that is first of all to define as best we can what an abortifacient is. The definition that I suggested apparently is adequate except in so far as it may not be in the rather extreme cases of artificial insemination as applied to human beings. If the definition is to be rejected on that ground, I think that is really stretching the arguments because to talk about artificial insemination in human beings in the Irish context is to introduce a fair degree of unreality. Nevertheless, if it is put forward seriously as a reason why the definition is defective, it is quite a simple matter to get a form of words added to the present form of words in the amendment to cover that most unlikely event in the Irish context.
The uncertainty about whether or not a particular thing is an abortifacient cannot be totally removed by definitions because of the nature of the scientific problems involved. What I suggested in the linked amendment, No. 14, is that the Minister appoint a committee to advise him whether a particular thing that might come on the market at any time is an abortifacient, even though it might also be a contraceptive. The Minister should have available to him some formal advice set up by statute so that the principle that we are all opposed to, abortion, would not be admitted under the Act. The amendment also provides that where the committee might not find it possible to be categoric in their opinion as to the operation or effect of a particular device, that is, whether is was a contraceptive or abortifacient——
May I interrupt the Senator to inquire if amendment No. 14 is being taken with amendment No. 1?
I thought that the Cathaoirleach would have directed me to take the two together. I have no objection to taking them together. Amendment No. 14 prohibits the providing of a contraceptive which, in the opinion of the committee, is or might be an abortifacient. This takes into account the difficulties in deciding whether or not a particular device is abortifacient in its operation. It may not be possible, objectively and conclusively, for the committee to decide that point. To reassure public opinion and to reassure ourselves, we should allow the effect of the committee's deliberations to be a prohibition on devices which are doubtful. If the committee cannot come to a definite scientific conclusion then that particular device is prohibited. That is the way it should be. As I have said, I am making these arguments in the context of a totally new departure, a departure whereby the State is blessing for the first time the availability of contraceptives. I want to make it very clear to everyone that the State is not blessing the making available of devices which might be abortifacient in their operation. On the contrary, the State is taking extreme care to prohibit such devices from being supplied under this new legislation. First, we can tighten up the definition if it does not meet the Minister's views. Secondly, we provide for a committee to advise the Minister to ensure that even doubtful articles are excluded.
This discussion started off on section 1 and now amendment No. 14 has been introduced which adds another and completely different principle into the discussion. First of all, I support Senator Cooney's point that our job is to make legislation as explicit as possible and leave as little open to interpretation as we can and make ourselves as clear as we can.
In reading Senator FitzGerald's Second Stage speech — I regret I was not here when he made it — I accept his views as a legal expert on most things that there are many parts of this Bill in which the interpretation is open to some doubt. I do not think that this is good legislation. This may have been done deliberately but I would have preferred a much shorter and more explicit Bill which did not go into all the detail the Minister has done but just repealed a certain——
That is what the amendment is doing.
The difficulty is that we are now discussing two amendments. We started off discussing amendment No. 1. We are now discussing amendments Nos. 1 and 14 and the two things are——
The House agreed to discuss the two amendments together.
I agree with Senator Cooney's point concerning the definition, making our terms clear. On the other hand there is the problem of appointing a committee, particularly if what Senator Cooney says is put into legislation. For example, medical knowledge in this area is changing and no doubt will change further. There could be a situation in which a particular device at one time is regarded as an abortifacient and at another time, when more is known about the working and physiology involved, it is clear that it is not. What is to happen to this device on the advice of the committee? Are the committee empowered to give new directions to the Minister or are the directions of the committee, once they are made, put into some sort of regulatory form and incorporated into our law through regulations which the Minister may make? Amendment No. 14 is only feasible if the committee have nothing but an advisory function. For example, subsection (3) is permissible. One cannot allow prohibition on something which, in the opinion of the committee, "is or might be". That is too vague. That is introducing an element of vagueness which is contrary to the principle which Senator Cooney enunciated in amendment No. 1. That is why I find difficulty in discussing these two amendments together. Amendment No. 1 has a good deal of point to it. It is attempting to make an explicit definition of a technical term. If a technical term is used in the Bill — I doubt that the word "abortifacient" is used in the 1861 Act — it should be clearly defined. However, it seems that amendment No. 14 is introducing an element of arbitrariness, an element of vagueness, which goes against the principle which Senator Cooney has outlined.
I could not accept or support an amendment which included the clause "which in the opinion of the Committee is also or might also be an abortifacient". That is introducing so much vagueness into the whole operation that it is nullifying what Senator Cooney is attempting to do in the first amendment. That is why I have some difficulty in discussing these two amendments together. I am basically in favour of the principle but amendment No. 1 upholds the principle of clarification whereas amendment No. 14 makes it totally obscure.
It is interesting that we are debating methods rather than objectives. I want to make a few points in clarification of my own stance of not seeking to interfere with the expression of views by Senators.
I want to deal with the principles of drafting. By far the best legislation is the sort of legislation which says simpliciter“thou shalt not steal”, “thou shalt not murder”. Legislation which goes on to attempt to define stealing inevitably gets into trouble. That is a simple unchallengeable statement of the principles of good drafting. One only defines in legislation when one has to. I do not think we have to define here.
Senator Cooney's point about the courts, which was re-echoed by Senator West, that it is our duty to legislate and not leave legislation to the courts, is true. I believe that we are legislating when we lay down the principle. Something is permissible or it is not. Something is acceptable or it is not. People shall do this or they shall not. That is legislation. The interpretation is traditionally left to the courts because no Legislature, no matter how wise, old or farseeing it may be, can possibly visualise everything, every circumstance, every change and every evolution.
If we start to define abortifacients, let us look ahead to the examination of the situation by the courts on some future occasion. Most Senators know that courts do not look to the intention of the Legislature. They take the words in the statute as they find them. They cannot do any more than that. They must devise the intention of the Legislature from the words as they appear in the statute. If we define abortifacient in any way, the courts will then look at each one of those words and say that if something or other is included in those words that it is forbidden. If something arises which is not dealt with within the framework of this definition, the courts will then say that the Legislature took trouble to spell out exactly what it meant by abortifacient and what is to be included in the definition of abortifacient and, therefore, anything it did not include must be left out. That is the simple principle of court interpretation. If the Legislature goes to the trouble of spelling things out in detail then the courts will say that something that is not included in that detailed elaboration is automatically excluded. If the Legislature went to the trouble of clearly indicating exactly what it intended to be included, ipso facto everything else is excluded.
That is an important matter in this context. Medical knowledge is changing. It is extraordinary how vast the unknown territory is. In my view it is not possible to frame words to define abortifacient which will not subsequently be shown to be inadequate, as Senator West has indicated.
Senator Cooney says that if this amendment is not acceptable on the wording, let us devise something else. My argument is that we cannot devise something else because the next definition will also be inadequate. It is not very realistic to say that the instance put forward by Senator Dowling is unrealistic. It is possible that this situation could arise here tomorrow morning. The whole medical world is changing. Even if it were not changing, it is quite possible for somebody to go abroad, accept this new way of conceiving and come back to live here. It is possible that we would be confronted with the situation that Senator Dowling mentions. I am not making a big issue of that point. I am only talking about it in the context of the adequacy of the definition. Here is a set of words designed by Senator Cooney who has legislative experience, who has put legislation through this House, and we find this definition inadequate and unacceptable. If we came up with some other definition I am certain that somebody would be able to find a flaw in it. Even if we were to find a definition which would satisfy all of us, my case is that because of the changing scene in medical knowledge and the medical world we cannot know that it will not be found inadequate in a year's time. The safest thing to do to achieve what we all want to achieve is to state the simple principle that abortifacients are prohibited and leave it to be decided in the case of any particular abortifacient in the light of medical knowledge at the particular time.
I want to make another point on the structure of legislation. Senator Cooney will have to accept that the main law dealing with abortion and abortifacients is the 1861 statute. A definition in this Bill would naturally affect the 1861 statute. We do not know what complications or difficulties it would give rise to in the context of the implementation of the 1861 statute. It would be very dangerous to put a definition into this Bill of something which is principally dealt with in another statute. The definition may have implications for that other statute which we are not aware of and which we cannot visualise. To define abortion or abortifacients we would have to go back to the 1861 law, look at it comprehensively, restate it and probably bring in a new statute. From that point of view alone it would be very dangerous to put this definition into the Bill. My primary argument is that it is introducing an unnecessary complication to spell out in detail what we think abortifacients are when we do not know. Whatever we put in will stand and anything we leave out will be excluded.
A committee would not be desirable. I agree with the criticism made by Senator West that it would be a statutory committee. It would only complicate the situation. The first question that would arise would be the membership of the committee. The amendment proposes five persons, including persons with medical qualifications. I could put five doctors on a committee tomorrow morning and anything that would come before them they would condemn as an abortifacient. I know that there are men who sincerely hold these opinions, qualified medical people. I could create another committee of five doctors who would have a completely different view. As the Minister for Health has access to competent advice from the Medical Research Council, the Medico-Social Research Board, the professional organisations and the College of Physicians and so on, another statutory committee of this sort would only complicate the situation unnecessarily. In any event, I think the way to deal with the situation is to state the simple unassailable principle that, as far as this House is concerned, abortion and abortifacients are prohibited and then leave it to the normal operation of our legal jurisprudence to decide whether the law is being contravened on the basis of the best medical evidence available at that time.
I appreciate the emotions behind Senator Cooney's amendment. The precise meaning of many of the sections and subsections in this Bill puzzle a great many people. I sympathise with the Minister's reasoning that things change rapidly and expert opinion even today is divided on this question and will undoubtedly be divided on future developments. I hasten to disagree with the Minister about the unreality of genetic advances in science being available in Ireland, either now or shortly. There are doctors and scientists in this country who are very much aware of and very much inclined towards practical demonstrations of their awareness of the latest advance in genetic science. I feel that these advances are to be welcomed.
I have to confess to a slight air of unreality as we are discussing amendments Nos. I and 14 because abortifacients and abortion have more to do with women than with anybody else, yet we are, through no fault of the Minister, of course, discussing them in almost totally male surroundings and with almost total male contributions. It is important that the women among us make their views clearly known. A small group of women in what you might call the feminist movement in Ireland feel that abortion and abortifacients have only to do with them and only to do with their own decisions about their own bodies and what shall or shall not happen. While I understand the reasoning behind that view and have a certain sympathy with the kind of events that have led to that reasoning, I think it is wrong and I do not agree with it. A small section of the radical feminist movement and other sections of our society believe in abortion, but I must dissociate myself from that point of view within the feminist movement.
If it was necessary to include section 10 as a saver on abortion, it would seem to be logical to include a definition of "abortifacient" in the definition section. I cannot understand the Minister's argument that it is all right to have a whole section as a saver but too dangerous to have a definition in the definition section. Whether we like it or not, there has been a campaign associating contraception with abortion. Unlike Senator Keating, I am an advocate of contraception and an opposer of abortion. Since there has been an articulate and vocal campaign to associate the two, and since there are some contraceptives which may or may not be abortifacients, it would seem logical to include a definition. I am sure that all Senators have been given a leaflet from Knock Shrine, of all places, entitled "Weep not for me. An abortion clinic in your area? The facts say ‘Yes'". It seems that this leaflet and others like it strengthen the view that a definition should be included in the definition section.
It is interesting that subsections (1), (2) and (4) of amendment No. 14 were part of Senator Cooney's Bill in 1974. Subsection (3) was not. Subsection (3) reads: "A person shall not import, sell, manufacture, supply or advertise a contraceptive which in the opinion of the Committee is also or might also be an abortifacient." I do not like the word "might". As Senator West said, if it is a definitive committee of experts they should be saying what is and not what might be an abortifacient. I oppose subsection (3) of amendment No. 14 as I cannot understand why it was included.
The Minister said that he could appoint five doctors to the committee in the morning and that they would all say that everything was an abortifacient. More likely they would all say different things. If we cannot trust doctors to decide what is an abortifacient, why are we asking them to decide whether we may or may not use contraceptives?
We are not.
I am glad to hear that.
I should like to reiterate my absolute opposition to subsection (3) in amendment No. 14, which reads: "A person shall not import, sell, manufacture, supply or advertise a contraceptive which in the opinion of the Committee is also or might also be an abortifacient." I think that the concept of a committee of five people literally deciding the intimate destinies of the population is Orwellian. Suppose they were five right-wing Catholics. I am in agreement with the Minister about the definition section, though I see both sides of the story. "Abortifacient" means an appliance, instrument, drug, preparation or thing designed, prepared or intended to terminate pregnancy. The old-fashioned form of abortion was a bottle of gin and a hot bath with a ride over bumpy roads on a bicycle. Would they come within the definition? I do not know because I am not a lawyer. But I would prefer not to enter into that area. The principle is clear and that is it. We should let the courts decide it.
To understand this matter better I would like to seek a little further clarification both from the Minister and from Senator Cooney. I asked the Minister in my speech on Second Stage, and I thought I got an affirmative nod from him, but may I ask again more specifically whether he is in a position to say, on the present state of medical knowledge, that the device known as IUD which prevents, as I understand it, implantation of a fertilised ovum in the wall of the womb is an abortifacient?
I am not.
Then I understand the Minister's difficulty all the more about a definition.
Coming to Senator Cooney, if we were to adopt his definition I would first of all be unhappy because I do not know exactly when a pregnancy commences. The definition is based on the assumption that an abortion takes place when a pregnancy is terminated. Does it commence when the fertilised ovum is implanted in the womb or when the ovum is fertilised? Again that is a matter which would determine whether or not the IUD is an abortifacient under the definition. I do not know what the answer to that is in the present state of the law.
I am also unhappy about his definition because of the words "designed, prepared or intended" all of which seem to leave it to the person who makes and presents these things to nominate whether the thing is a contraceptive or an abortifacient. The intention may be that it be a contraceptive; it may be known that it also has abortifacient properties.
No doubt that was in Senator Cooney's mind when he went on to propose amendment 14. Even if amendment No. 14 were accepted and a committee did say that a particular thing was an abortifacient that, as I read it, has no effect whatever on his intended definition. It could still be argued that the particular thing was designed, prepared and intended to be a contraceptive because Senator Cooney has omitted to put into the definition words which I would consider important, namely, the words "having the effect of terminating". All this really argues the Minister's case for leaving abortifacient in the abortion laws to be determined as the state of medical knowledge advances.
I want to take the other side from the last two speakers. The Minister has not conceded it in his own mind or in his presentation but it seems to me that, by referring to the year of the enacting of the current abortion law, he has made a very strong point against himself. It is in section 10, paragraphs 58 and 59, Offences Against the Person Act 1861. That was 118 years ago. At that time, apart from a mixture of superstition and magic, there——
The Ten Commandments are even older.
I decline to pursue where that thought might lead us. There was not any substantial knowledge of reproductive physiology of humans or of animals at that time. There just was not any. There was not any serious biochemistry in the relevant area. There was no knowledge of hormones. It seemed to me the Minister was doing something that I thought was very dangerous because the definition is difficult. He quoted an obviously true saying that knowledge is evolving and, in parenthesis, one might say — and I have seen suggestions to that effect — that the amount of information in the world doubles every decade. In this area which is very actively researched, I would have thought that the doubling time of knowledge was much less than a decade. So the information is enormous and is continuing. Some of it is very hard information and some of it, right at the frontier of what is new, is soft information liable to revision in the light of new information and new experiments. But to draw the conclusion that therefore one cannot have definitions may be fine from a lawyer's point of view but from a scientist's point of view which are the blinkers I would bring to this debate, it seems to me a frightful thing to say because every one of the experiments, every one of the new pieces of knowledge in fact increases the precision that is possible.
That is why it seems to me relevant to go on to say that there ought to be an expert committee. I know that the Minister yields to no man in his admiration for the Irish medical profession. But I thought he traduced them a little when he said he could pick five people. Ministers only put people of serious standing on committees. Every profession contains its lunatics of course and provided they do not do anything awful enough to be put off the register they remain on it. But we are not talking about the lunatics; we all have to pick people of serious standing. My belief is that whatever the particular philosophical or religious preoccupations of people of good standing within their profession they would not disagree about the facts. I very much doubt the Minister's statement that he could produce a committee of five serious doctors who would term everything an abortifacient and though he did not go on to draw the opposite conclusion or say the opposite thing I think it was implied in what he said that he could pick a committee of five who would say that nothing was an abortifacient.
That is unfair to the people on both sides who are passionate holders of their philosophical or religious point of view; they are also, if they are serious people, passionately concerned to find out what is true. Any decent scientist is able to separate truth from opinion. I find in my controversies on this issue with people with technical expertise — although I do not have as much expertise as a doctor, I have more than a layman — that we do not disagree much about the facts. We can delineate quite clearly the areas where the knowledge is extremely vague or changing almost instantly. The disagreement is in interpretation. I notice that Senator Martin referred to the Orwellian situation of having expert advice. Is it less Orwellian to have five doctors in good standing in their profession, and chosen by serious Ministers, than to have this interpretation made by judges or by juries or by both? Is that what we are getting into?
The Senator could not be serious in saying that the courts should be less omnipotent in these areas than a committee of five appointed by the Minister.
The Minister is perhaps accidently misunderstanding me. I am suggesting that the serious decision that one is likely to get from five doctors or five persons of good standing on a special committee is at least as likely to be a reasonable one as the decision one would get from a judge. It seems to me a very serious indictment of our whole legal system. Judges are very good at parsing words but they know very little science and all of the real knowledge in the world in the last century has come from the scientists.
The Senator is challenging our whole constitutional position.
My disapproval of the Constitution is known and we can argue that another day. I am quite happy to have a wide debate but out of deference to the Minister and the desire of Senators to finish this and get home, even though the Minister introduced the matter I decline to pursue it. We probably ought not to broaden the debate in that way so I will not seize the opportunity that the Minister has given me.
The Minister has a committee that functions in the whole pharmaceutical area of an expert committee and expert committees are proliferating of necessity, and very properly. There is no new principle here. We are talking about whether there should be expert judgment as to what is or is not an abortifacient. My approach is that we are talking about one very narrow category in the whole spectrum of contraceptives because we have everything from vasectomy to methods that are called natural; all the difficulty with this Bill and all the confusion in it arise from what I consider to be a false distinction between natural and other methods. We have all the possible surgical interventions with either male or female; we have the physical barriers, caps and sheaths; we have spermicidal creams; we have hormones; we even have thinkability of things like vaccines which may come along quite quickly and we have methods based essentially on timing which to say is natural is to traduce language and to introduce totally unscientific concepts into serious debate.
With all those things existing it seems to me legitimate to say it is permissible to exclude those contraceptives which are known also to be abortifacient but also, following Senator Cooney's amendment, those where knowledge is not yet precise enough to say that we can decide which are, or may be, abortifacient; the words "may be" means that a reasonable doubt exists as to whether they are or are not. The battery of contraceptive information — and it is a heavily researched question around the world — is increasing all the time. That being the case one has no need to bring into the whole basket of possible methods the ones that may be abortifacient as well.
I say this in the recognition that at a time in the future there will be a debate here, as there has been all over the world, about abortion. That is something that will come, perhaps in a decade or perhaps in half a century; we cannot say when. I am satisfied, on the evolution of thought all over the world, that it will come. What I want to do is to stop the sort of dishonest and bogus argument that Senator Hussey gave an example of — and to which we have all been subjected — that says contraception and abortion are the same thing.
I want this distinction made clear. It seems to me anti-knowledge, antiscientific, even anti-ordinary common sense and reason to say that because knowledge is evolving rapidly a definition is impossible. If that were the case and if the Minister were right, then what we were doing with all the time that even we and the people in the Oireachtas as long as I have been here have spent on definitions? If one cannot define because the knowledge is getting more precise and getting better as is the result of research then one cannot define anything; words become meaningless and then we say let us leave it to a court and when we leave it to a court we are leaving it to an oddly selected group of people whose knowledge is very good in some areas and very bad in others. It seems to me that we are shying away from the sort of precision and accuracy that is necessary. For those reasons both of these amendments, the first to enunciate a definition and the second to then adjudicate the interpretation of a particular new product, are both practical and necessary.
I want to go on to one further point, which is the question of the new techniques that are coming along. There is an explosion of knowledge in everything from genetic engineering to artificial insemination by parent or by donor and the next step, the implantation of fertilised ova from another mother and possibly spermatozoa from another father as well. All those things are progressing very rapidly and they will impinge on matters of definition at a later stage. But is it thinkable that when they become, on any significant scale, matters of ordinary medical practice here, as they will do, that we could proceed to that stage without regulating legislation. I suggest that it is not. I suggest that we are going to have to face legislation in this area anyway the moment it becomes a real issue. That seems to me to be the answer to the objection that Senator Dowling made.
I want to agree with Senator Martin in that I would be alarmed by subsection (3) of the proposed amendment and Senator Keating's arguments have not done anything to reassure me. It would seem to me that what he is saying, in fact, is that Government should be scientists in view of the fact that the only worthwhile additions to knowledge have been from science.
The idea of a Minister appointing a faceless committee of five is undemocratic in any sense. Suppose, for example, the Minister was not the present Minister who, personally, has such liberal views on these matters but suppose the Minister was a very illiberal Minister — and we must remember after all that in the last few years, one Taoiseach and two Ministers have indicated very clearly their very conservative views on these matters — it might be possible in that case that the committee so appointed would be unimaginably conservative. If I might be facetious about so serious a thing, they might even define — to follow Senator Martin's line of argument — a bicycle as an abortifacient, a situation which would delight the sardonic shades of Myles na gCopaleen.
I do not think I want to say too much about it because I am really oppressed by a sense of not knowing enough about every element of this whole matter. I would like to make a couple of points which seem to me to be important. While I do not, in fact, agree with what I thought to be a rather scornful dismissal by Senator Keating in an otherwise marvellous contribution of the connection between contraception and abortion, I think there may be elements of truth which are not perhaps within the range of what I might call calculative thinking involved in the connection here. Senator Hussey made perhaps the most important single point in the contribution I have listened to about the importance of the Legislature clarifying for the public that, while it is making available — to use loose language — services which include contraception it is making it a very definite proclamation, promulgation, that it is not favouring in any way by its measures the abortifacient operation, I do not think that the saver in relation to this is adequate.
On the dispute between Senator Keating and the Minister on judges and doctors, I would certainly say that if we are left with a word like the word "abortifacient" undefined I would pick five faceless scientists in favour of five yet to be chosen judges to determine what is an abortifacient. But that is not the position as I understand our system. Even under the Constitution that Senator Keating diverts from, whether in part or in full I am not clear, the position of the judges is to interpret the language which the Legislature in any statute chooses for the judges and to give that meaning to that language which that language bears and is capable of. In that matter I would certainly entrust the judges with all the power, with their training in this matter of interpretation, which I would not entrust to any group of scientists.
In this whole thing my sympathy is stretching from people who distribute the packages at street corners to those who would lock one up for mentioning intercourse and this includes the Minister; my sympathy extends as magnificently as that. But he did seem to me to fasten rather too easily on to the language of Senator Cooney — and indeed this might be relevant to the contributions of other Senators — in relation to both amendment No. 1 and amendment No. 14. Members of the Seanad are not parliamentary draftsmen; they are not paid those huge wages they should receive for that task nor are they expected to have that particular kind of expertise. What they are essentially doing on Committee Stage is presenting the basis ideas to the House for discussion on the relevant section. Then if the idea commends itself to the assembly and to the Executive who advise such a considerable part of the assembly, then the parliamentary draftsmen's aid is called in to present the thing in a technically correct and finally proper way. That would take care of the criticism which Senator Whitaker made with regard to including in the abortifacient anything which has that effect. One could take words from amendment No. 14 and put them into amendment No. 1. That is not my point at the moment. The Minister seemed to say that there was some danger being created because if we defined an abortifacient we would be limiting in some way and fastening down in some way the judicial interpretation, the ability of the Judiciary to evolve in response to increasing knowledge. I share Senator Murphy's view that one of the things we will have increasingly to know more about is how to absorb the new knowledge that is coming from a particular method of acquiring knowledge, that is, the methods appropriate to science.
One of the arts and knowledges we will have to know more about is how do we absorb that and benefit from it without destroying ourselves. However, I want to emphasise the point that the word "abortifacient" need not be defined as meaning anything in any sense which would exhaust it. The words could be and should be "abortifacient includes" and then the very words which commend themselves to the parliamentary draftsmen could be set forth. Then one would have words which the Judiciary could construe which would have a significant and definite meaning for the Judiciary and which would present a real impediment and a real obstacle to those people who, are mentioned by Senator Keating, are in the business of peddling abortifacients as contraceptives and want to be able to come in here to do that. The section should say that an "abortifacient shall include," and here the words which are the best words which parliamentary draftsmen can produce at that time can be inserted in addition to that, such other knowledge as the Minister, by regulation, on the advice of such bodies as the Minister may choose to have.
There are lots of extra medical advisers available to the Minister at the moment. But one very significant thing in relation to this area is that the Minister with all the wealth of advice he has, despite the unfortunate language he used about any given five on one side or the other which I do not think to be true because I think there is professional integrity involved on both sides in this debate, with ethical opinions well articulated or not as the case may be, is not making any use of that medical knowledge and is not making it available for the purposes of this legislation in relation to this matter of the definition of the word "abortifacient". I did not look up the Oxford English Dictionary which I normally use as a sort of a third pillow and I do not know if the word appears in it, whether I was pronouncing it properly in the strange way they tell one to. I do not know whether it should be pronounced as Senator Cooney pronounced it or as Senator Keating pronounced it. It is certainly not a word which would have such a natural meaning as would leap into the mind of any judge. It requires a definition which is not an exclusive definition, which includes an ability to take advantage of advancing knowledge. I find it difficult to think that there is likely to be a situation where something is thought today to be an abortifacient and tomorrow it is going to be discovered not to be an abortifacient. I find it more likely to think that advancing knowledge is going to determine that something today is thought to be harmless and is going to be found tomorrow to be harmful. It seems to me that the thalidomide kind of situation is the more likely result from scientific advance. But I would have thought that if there was a will to have it so there could be a saver for that type of situation and, indeed, not to add another amendment for debate to this section, I have put down an amendment in my own name which might provide an opportunity to deal with that type of amendment.
I want to ask something clearly. Senator West, Senator Hussey, Senator Murphy and myself have made very specific criticisms of amendment 14, subsection 3. I want to read it again because the implications of this seem to me quite sinister. They are extremely sinister when one considers that, on the one hand two distinguished lawyers, Senator Cooney and Senator FitzGerald who has absolute reverence for the Constitution, for the legal procedures and the Legislature and, on the other hand, Senator Keating whose liberalism——
Mine is a critical reverence.
It is a critical reverence, indeed. That is the only kind of reverence that can be defined as reverence. I just want to read this subsection again because it really involves who is going to run the country. I described this committee of five as Orwellian, or McCarthyist, Huxleyan, if one likes, and I am thinking of Aldous, who wrote Brave New World, and the whole implication of a world run by scientists is at the back of this:
A person shall not import, sell, manufacture, supply or advertise a contraceptive which in the opinion of the Committee is also or might also be an abortifacient.
It is not the Minister but these people, if language means anything, who are to be given power over the domestic destinies, the sexual lives of the population from this point on. That is a criticism that has not been answered by Senators Keating or FitzGerald. Senator Cooney has not spoken since the criticism was made. I would be astonished to think that Senators FitzGerald or Keating approved of the principle explicit in that subsection.
Of course the language can be improved. The language which is really fantastic here is the language of Senator Martin with regard to a general proposal made by a Member of this House which is for consideration by this House and which is capable of improvement if the idea is that the executive should have assistance in this matter of formulating. That is all that is involved in this. Nobody is tied to the particular terms or language used.
I am enjoying the debate and do not wish to interrupt, but in Committee, everybody gets a chance to speak as often as he likes. It would be better to let people continue without interruption.
When I said that five doctors would give one opinion and five more would give another opinion, I was not in any way impugning the integrity of these doctors. I was merely advertising to the fact that this is a most complex, complicated and ill-defined area. To my knowledge, there are five doctors who would have a very positive view about when a pregnancy commences, what an abortifacient is and so on, which would be in complete contradiction of the views held by five other doctors. That is the point I want to make clear. I was not impugning the integrity of the medical profession in any way.
The only other point I want to make is that Senator FitzGerald has come along in defence of Senator Cooney's amendment. In order to defend it, he had to put forward yet another amendment of his own. He wants to change Senator Cooney's amendment now to change "means" to "include". This could keep on all day. The Seanad has exercised itself on this matter at some length. The contributions have been stimulating, interesting and of a very high intellectual quality. Clearly there is real difference of opinion between Senators on what exactly should be done. At this stage in view of the difference between very learned and intelligent Senators, it might be better simply to accept the proposal of the expert parliamentary draftsman if we cannot agree, in our wisdom, on what to do. He put forward this solution to achieve what we all want to achieve. We are all agreed on the objective. It is only a question of mechanics. The expert mechanic in this matter is the parliamentary draftsman. He assures me that this does exactly what we want and is the best way of doing it. Perhaps when we have this level of intellectual disagreement among us as to what should be done, we might fall back on that simple expedient.
It might be no harm at this stage to clarify what we are after in this amendment. The 1861 Act set up the offence of abortion. There is no question of changing that Act at all. That is the law and that will be the law after this Bill passes, amended or unamended. What we want to set out very clearly in this Bill is what comes within the 1861 Act. We want to set out very clearly that we are opposed to anything which would cause an abortion. The Minister agrees with that because there is a provision in section 10 that nothing in this Act shall be construed as authorising the sale and so on of abortifacients. I would pronounce it "facient". Not being an Oxonian I would say "fachio" instead of "fácio".
The others probably speak about "Kikero" as well.
The Minister in section 10 does not want abortifacients to be available, sold, imported, manufactured, advertised or displayed. He does not use the word "supplied". This is something we can deal with when we come to section 10. I take it that it is his intention that these should not be available. That is all the Minister has in the Bill. That immediately raises a number of questions the first of which is, what is an abortifacient? We go back to the definition section. There is nothing in the Bill which tells us what it is. In the absence of a definition the point could arise to be determined where the State authorities tell a citizen, "You cannot sell that particular object because it is an abortifacient". The citizen says, "I say it is not an abortifacient". There is nothing in the Act to help either of them to come to a conclusion. The State authorities would probably pursue the matter through the courts.
An odd omission from section 10 is that the sale, importation, manufacture or advertisement for sale of abortifacients is not specificially made an offence. I am sure the Minister will explain that to us later. I assume it is intended to be. The question has to be decided by the courts. The courts will be asked to hear medical evidence on behalf of the State, contrary medical evidence on behalf of the citizen and come to a conclusion, first, as to what is an abortifacient, as there is nothing in the Act to help the court and secondly, if the particular thing comes within what the court thinks would be an abortifacient.
That will be the situation if we pass the Bill as it now stands. I am saying to the House that we should not pass the Bill in that state. We should set out what we mean when we write the word "abortifacient" into a Bill. That is why my amendment is intended to do.
There are scientific uncertainties or questions arising from the definition put forward in the amendment. The point was raised by Senator Whitaker as to when does the effectiveness take place? This is a scientific matter and possibly a moral one which I am not competent to advise on or suggest an answer to. Quite clearly it is a difficult scientific area as to when a pregnancy commences and when an abortion takes place. That obviously cannot be solved in a definition section. It is an evolving matter. As more knowledge becomes available, different conclusions may be drawn. One obviously cannot automatically, forever and absolutely provide a scientific answer in a definition in an Act of Parliament. To remove the doubts from that necessary gap in the definition, I have provided in amendment No. 14 that there should be a committee to advise the Minister from time to time, on request, as to whether any particular thing is an abortifacient. In making these decisions, that committee would have to go into the question of what the effect of that device is on the process of conception. If they feel that it inhibits ab initio presumably they will advise the Minister that it is a contraceptive but if it is interfering after conception has taken place it is an abortifacient. Consequently we and the Minister would know that the supplying of such a device would be unlawful and would lead to penalties.
There might be an area where the committee would be unable to say to the Minister quite positively and definitely, "This device is a contraceptive", or on the other hand, "This device is an abortifacient". In relation to a particular device the committee might have to say to the Minister, "We are not sure, because of the present state of scientific knowledge, what is the effect of this device".
What I am saying in regard to the much maligned subsection (3) of amendment No. 14, is that in that situation the Minister should give the benefit of the doubt to the majority who are against abortion and exclude that device because it might also be an abortifacient in the opinion of the committee. They cannot be conclusive about it but because it might be we are asking the Minister in the amendment to exclude it. There is nothing Orwellian or sinister in that. The vagueness arises because the committee are unable, because of their lack of scientific knowledge or the imperfect state of scientific development, to give a definitive opinion on that point. That is why I say that if a doubt remains it should be resolved in favour of the majority who are hostile to the concept of abortion. That is why the words "might also" are used in subsection (3). I do not know if that will remove the objection of the Senators, all from the universities, who have criticised those words.
I do not take the Minister's point that definitions should be brief. He used an unfortunate analogy when he spoke about the law "thou shall not steal" and that is the end of it. It is very far from being the end of it because as in the case of the words "steal" and "larceny" there were many definitions to define precisely what was meant.
The law does, and rightly so, attempt to define specifically what it means from time to time.
Most of that is in case law.
No, it is in the Larceny Act of 1916. It has been defined by case law to the extent that in England, as a result of all the definitions and refinings, they have remodelled the statute law, something we have not got around to doing yet, in a simple way. Nevertheless there is a definition there.
Some Senators are concerned that the definition may not be complete. It may be defective and may admit things not intended to be admitted and so on. No draftsman, no matter how expert he is, can draft a definition that will stand up to the test of all challenges for all times. This definition is reasonably adequate to make clear to the courts and to the public what we, the Legislature, mean when we use in section 10 the word "abortifacient". In the absence of that definition how is anyone to know what section 10 means? The definition sets out that it means an appliance, instrument, drug, preparation or thing designed, prepared or intended to terminate pregnancy.
Senator Whitaker raised the point, he can correct me if I interpret him wrongly, that if a contraceptive had the effect of terminating pregnancy but was not intended to do so, it would not come within the definition of abortifacient. He is reading only one word of the definition, the word "intended" because the words "designed", "prepared" or "terminated" are alternative words that must be read together. If the device is designed, even unwittingly, so that it terminates pregnancy then it is an abortifacient within the definition as I read it.
Therefore a bicycle, although it was not intended to do it, but if it does it, is an abortifacient. That is just what the Senator said.
The Senator is introducing a scientific element and I do not intend to follow him down that road on his bicycle.
Would Senator Cooney admit that his amendment is defective in regard to the situation mentioned by Senator Dowling? We could not accept it as it stands.
An abortifacient would not——
It would exclude the termination of an implanted pregnancy.
As it stands, if a pregnancy results from artificial insemination——
It could be aborted under the terms of the——
No it could not because it would be an offence under the 1861 Act. I agree with the Minister that in so far as this Act deals with devices which could be abortifacients the definition would exclude an abortifacient in relation to that type of pregnancy. It is a simple matter to add the words to the definition "Pregnancy resulting from sexual intercourse or artificial insemination", or otherwise.
The Senator is amending his own amendment.
That is not a sin.
The Minister amended one of his own in the Dáil.
The purpose of debate is to tease out implications in what is put forward for debate to see whether proposals are defective or restrictive and whether they can be improved or extended. Thanks to the intervention of Senator Dowling, we now see a way in which this definition could be improved. I do not think it automatically means the definition is faulty because we can find room for improvement in it. Senator FitzGerald reminds me that that is what Committee Stage is all about. We can toss notions and ideas back and forth to each other and inspire each other so as to produce better legislation in the heel of the hunt.
What we want to do is exclude from legislative blessing devices which could have the effect of terminating pregnancy though they are distributed or supplied as contraceptives. As this is a grey scientific area I am suggesting that the Minister should take advice from a committee of experts and even if the experts cannot be definitive and still have a doubt, that that doubt should be resolved in favour of those who do not want to admit the principle of abortion.
On subsection (3) of amendment No. 14, the Minister must be delighted to see Senators on this side of the House battling it out on amendment No. 1. Senator Cooney has missed the force of the objections a number of people have put forward. Perhaps Senator FitzGerald has also. I do not know. I am not necessarily opposed to defining abortifacient or to the setting up of a committee to advise the Minister. This is covered in subsection (1) of amendment No. 14. Subsection (2) provides for the composition of the committee. Subsection (3) gives the committee statutory powers and changes the whole set up. Subsection (3) states:
A person shall not import, sell, manufacture, supply or advertise a contraceptive which in the opinion of the Committee is also or might also be an abortifacient.
If this committee is set up its function of advising the Minister would be miniscule in comparison to its function of giving its decisions or doubts statutory effect. It changes the sense of the whole thing. I am not objecting to a committee being set up to advise but I object strongly to a committee being set up whose deliberations were immediately given the full force of law and not just its decisions but its doubts. That is a situation which changes the whole principle of the committee.
Senator FitzGerald has referred to Members, when they are producing amendments, not having the services of the parliamentary draftsman. That is the case in general but it is not solely confined to this case, because Senator Cooney introduced a Bill in 1974. This point was covered in section 7 of the Control of Importation, Sale and Manufacture of Contraceptives Bill, 1974. Section 7 of that Bill included subsections (1) and (2) of this amendment but not subsection (3). There is no subsection in the Bill that Senator Cooney introduced as Minister for Justice which has any connection or which bears any relation whatever to subsection (3) which changes the whole purpose of the committee. I am not objecting to the words "might also". I am just objecting to the principle in subsection (3) by which the deliberations and the doubts of this committee are immediately given statutory effect without any reference to advice to the Minister. That is what I am objecting to. It totally changes the whole function and role of this committee. That was not the function or the role of the committee that Senator Cooney, as Minister for Justice, introduced in section 7 of the 1974 Bill. It is a change in principle. That is important and for that reason I could not accept the appointment of this committee. The committee's deliberations get immediate statutory effect quite apart from any advice the committee may give the Minister or anybody else. Therefore, I oppose the whole idea of the committee.
The contribution of Senator West has done a great deal to clarify subsection (3) of amendment No. 14 but, with Senator Martin, I hope that he will feel in restrospect that invoking George Orwell, Aldous Huxley and Joe McCarthy in this context is out of proportion and exaggerated.
The Senator accused me of being sectarian and divisive.
I will accuse him of that again before we are finished but that is different from what Senator Martin said here.
There are different standards.
No, just a different subject matter, same standard. The point is presented as one of law versus science and of the existence of two cultures and who is going to rule us, will it be scientists? Law has existed as long as we know about civilisation. Real hard science is exceedingly recent. The whole problem is to reconcile the two of them without giving either of them the ultimate democratic rights and powers that must reside in everybody. That is a truism; nobody would argue about that.
I would. The law must prevail in a democracy.
I have had another opportunity from the Minister, which I will decline, to enter a very wide-ranging discussion. We do not want to be here beyond Friday so I will not pursue that. I said the task was to reconcile science and law and the other things in society. Science is about truth and discovering what is true and what is provable. To put law above that seems to be a mistake. The task is to reconcile what is true and what is legal and also to incorporate new knowledge in a very rapidly changing society. I will not pursue it further than that.
The nub of the matter as it is seized on correctly by Senator West is the question, which as he develops it I find difficulty with also, of giving immediate statutory power to what the committee say. There will have to be a committee for expert advice; we know that committees like this exist. The Minister has working for him what I believe is called the National Drugs Council which carries on this sort of work continuously. If one has resort to the courts then it is taken intermittently, by chance and after long intervals. If one has a statutory committee they monitor the new things that come along. If the committee said such and such a thing is an abortifacient, the Minister would have no option but to take that advice and prohibit it.
It is not a matter of the doubts of the committee; the committee would be saying "that is not an abortifacient, that is an abortifacient" but about another category of products presented to it, it is not possible to say. To declare that the knowledge does not exist to say definitively whether it is or is not, is not expressing a personal doubt; it is indicating the current state of knowledge. The doubts of the committee do not arise. The best way to do it is by a special committee and not by recourse to the courts which is intermittent, patchy and may not happen for years. We know what the courts are like in these matters. I would prefer a continuous monitoring by a statutory committee. Hard cases make bad law and indicating the dottiness that might arise from a very partisan selection of committee members does not invalidate the principle.
Senator West has a real point when he says that it should be to advise the Minister and the Minister would have no option but to take that advice. Special committees like that should not be given statutory powers. They ought to work through a Minister. But were they to indicate an opinion about whether or not the device was an abortifacient or whether current knowledge did not permit one to say definitely whether it was or was not, Ministers would have no option but to accept what they advise. Advice would be quite strong enough in this context.
I take that point having listened to Senators West and Keating. It is a valid point because, as drafted, subsection (3) of the proposed new section would give unusual powers to this committee. It is a question of transferring the powers to the Minister to be exercised by him on receiving the advice of the committee. It would be a matter for the Minister then whether to accept or reject the advice of the committee, but normally an expert committee would not find its advice rejected. The Minister would make the necessary banning order, so the effect would be the same. But from the point of view of the proprieties of the legislation, it would appear that the Minister acted on behalf of the Legislature. The acting Government of the day would be the banning authority, not the committee set up by the section. I take the point, it is a correct point.
Is the amendment withdrawn?
With regard to the first amendment, the Minister has pointed out, as have Senators, that there are things in it that could be improved by redrafting. I would ask the permission of the House to withdraw it at this stage on the understanding that I will put it down again on Report Stage. I think I am entitled to do that.
I am not in a position to accept that. I am not giving any undertaking on that.
There seems to be a mistake in amendment No. 2.
I do not think so.
I move amendment No. 2:
In page 2, line 18, after "pregnancy" to insert "from".
I think amendment No. 2 might also be withdrawn. It seems to me that if it were accepted, the words would then read as follows:
"contraceptive" means any appliance, instrument, drug, preparation or thing designed, prepared or intended to prevent pregnancy from resulting from sexual intercourse.
Is that not the point of contraceptives? A device to prevent pregnancy from resulting. Pregnancy results — pregnancy has already happened. The contraceptive is an abortifacient. Do you not need the second "from" there, to make sure that you are defining the device which is intended to prevent pregnancy from resulting from sexual intercourse?
I should point out that the definition given here is the one given in Senator Cooney's own Bill.
I wish everything I had done got the praise it has been getting here today, and that people did not want to deviate from it.
Senator Hussey has been trying to get the attention of the Chair and because of interjections, she is being denied that.
It seems to me that inserting another "from" there is a misuse of the English language. The word "prevent" is absolutely sufficient there by itself. To put in "to prevent pregnancy from resulting from sexual intercourse" is tautology, if I am using the word correctly. To "prevent" means to stop something happening. I would be in total agreement with the Minister there. I do not think he should accept something which is an incorrect use of the English language.
My only suggestion is that a committee consisting of Senator Martin exclusively should be established to determine this matter.
I am in too Orwellian a mood today to make precise definitions.
I address myself to only one part of this section which is the definition of contraceptives. I believe that principles of good law, of science, of logic and of commonsense are all violated by this Bill. I tried to draw attention to that central defect in the Bill by means of an amendment in the names of Senator Mary Robinson and myself, which is amendment No. 5 to section 2, which was ruled out of order by the Cathaoirleach. I accept the decision of the Chair, although I think it is a bad decision. I can, in fact, raise the same subject matter on definition. The basic weakness of the Bill to me is the false distinction between what are called natural methods of contraception, natural family planning and so on, and methods which, by implication, are artificial. That distinction between natural and artificial exists in a certain theological approach to this matter; but it seems to me to be without meaning. In the effort to sustain that false division between natural and non-natural, or between natural and artificial, or between the word "natural" and whatever other word is used for the other category of contraceptives, that seems to me to be false and the whole Bill seems to be in enormous difficulties because of that and the definition of a contraceptive seems to be in difficulties because of that.
Let me illustrate what I mean. All of the so-called natural methods—and there are many of them and research is progressing on them and there will be others—are methods which I would characterise as relating to the time of ovulation. The theory behind it is that if you can determine the time of ovulation then you can determine the fertile period in the reproductive cycle of a woman and if the partners voluntarily avoid the fertile period, then they are obtaining contraception, on the one hand without sin and on the other hand, without violating the laws of some countries. This seems a bogus definition for this reason.
In defining the time of ovulation and in deciding what is the safe period in relation to that moment of ovulation, one uses a large, increasing amount of knowledge as a result of research, but, secondly, one uses material objects. For example, one of the methods is to use a thermometer because there are recognised temperature changes in or about the moment of ovulation, associated with it. There are apparently changes in acidity in the reproductive tract of the female; there are electrical changes and there are also changes in something I happen to know about because of my research with domestic animals, particularly the crystallisation pattern of cervical mucus. I read the definition of a contraceptive which says "any appliance, instrument, drug, preparation or thing designed, prepared or intended to prevent pregnancy resulting from sexual intercourse between human beings," and I ask myself is a device, developed by some research scientist and marketed by a large electronic company, to measure these relevant electrical changes in order to determine the moment of ovulation, a contraceptive? Is a thermometer used to determine the moment of ovulation a contraceptive? You make a little circular chart, which I suppose all have seen, where you have days of ovulation, days of the month and you can rotate the outside chart to see which are the safe days for any given month, on the assumption that ovulation exists on any particular day. Is that chart a contraceptive?
I have never seen one.
The Minister purports not to see my point.
I said I have never seen one.
The Minister assured us on Second Stage that he had carried out an unparalleled amount of research and consultation in regard to the formulation of the Bill. I am a little surprised that he has not seen one.
Consultation, I said, not research.
Lots of people have. There are devices to check the acidity, the pH. There are devices to check cervical mucus and there are, indeed, calendars. What I want the Minister to tell me, used in the context of determining the moment of ovulation, used in the context of determining the safe period, used, therefore, in the context of intending to prevent pregnancy resulting from sexual intercourse, are those things contraceptives?
I support Senator Keating in his remarks on this section. It seems to be a valid point that he should ask exactly where we draw the line between the natural and unnatural methods of contraception, so-called. All these various sophisticated means have been developed solely to help women to know all about their own bodies and their own cycles and have been scientifically developed over a long period of time; they could not be used for anything else. They are designed purely and simply with one purpose in mind—to give a woman full knowledge of when she may or may not conceive as a result of sexual intercourse. They could not, by any stretch of the imagination, be described as having any other uses. I do not think it is very funny for the Minister to say that he has never seen any of these things. I think that is quite amazing.
I did not say that. Please do not misquote me.
I thought you said you had never seen one?
Senator Keating said we had all seen a particular type of chart. I said I had never seen one. That may be funny to the Senator.
I said I supposed we all had.
No, it is not funny. I do not find it funny that you have not seen one, because they are in common use and are very important.
There are lots of other things I have not seen.
They are very important to a great many women, in fact of vital importance to many women. It backs up a point of view which I mentioned on Second Stage, that the people who have not been consulted on this are the women to whom these things are absolutely vital. I support Senator Keating in his assertion that these sophisticated charts are definitely in the area of contraceptives. We should know exactly what the Minister's intentions are in this respect.
I agree with Senator Keating on the artificiality of the distinction between natural and unnatural methods of family planning. My belief is that the correct definition of natural family planning method is a method that is approved of by the Roman Catholic Church. It is essentially a theological distinction and everything else is lumped in as an unnatural method of family planning. I do not accept the distinction.
I want to make one other point on this section, and that involves the definition of family planning service. The family planning service is defined as:
...means a service for the provision of information, instruction, advice or consultation in relation to any one or more of the following: (a) family planning, (b) contraception, (c) contraceptives;
By the definition of family planning service, if read carefully, it means that family planning service has nothing a priori to do with the family. It can have, under subsection (a), but under (b) and (c) it says contraception and contraceptives are concepts which have no a priori connection with the word “family”. That means that a family planning service can encompass people who are not members of a family. This is important, because I believe—and I am not the only one who believes this—that our family planning services must be available to adults, whether they are married or not. This is, therefore, a very important distinction.
I seek clarification, too, on the point raised by Senator West. I was reading family planning, because of the meaning that "family" has in the courts and its traditional meaning in daily use in this country as meaning a family in the normal sense of the word, that is, a married couple married in accordance with the laws of the State. I am sure that the Minister, in the consultations to which he referred in his opening speech that were described as lengthy, detailed and constructive, heard that there was a very wide view that the services provided for in this Bill should be confined to the family, in the sense in which we have always understood it. I would ask the Minister to indicate in his reply if he did, in fact, get that point of view and if that is the point of view he expects to see implemented in the Bill.
Which particular point of view?
The view as used here means a family as we have always understood it, a family based on a marriage in accordance with the laws of the State, and that the services to be provided for in that Act are to be provided for such a family.
Yes.
The Minister can, when he is speaking, clarify that that is how he understands "family" and that it is in that context that the services are to be provided.
I would like to add my voice to those of Senators Keating and West in objecting to the particular approach which is reflected in the definition in section 1 and which foreshadows the whole shape in which the Bill is cast. As I recall, the Minister in his reply on Second Stage, accused some Senators of not recognising that there should be unified approach; that if you are for one form, you are against the other. It seems to me that the definition in section 1 foreshadows the Bill in which this distinction is precisely observed and this discrimination is observed throughout the Bill. Could I just repeat again what I said the last day, and that is that the thinking behind this Bill seems to derive from the very conservative, theological position and the theological position itself has evolved over the last 20 or 25 years. The attitude of those who now advocate natural family planning has radically changed from the position 20 or 25 years ago, when the whole concept of family planning was anathema. One would have some respect for the position which would say that all sexual intercourse is wrong unless it is intended to result in conception. That, indeed, was historically the postion of a large section of moral theologians over the centuries. One has respect for that position, but no respect for the position which says, "Well, you can, of course, have sexual intercourse, provided that you do not use so-called mechanical means. You can encourage—and indeed it is a laudable and moral thing to encourage—research in the natural family planning, so that we can actually pin-point still further the time of ovulation so that you may have recourse to the other days in the month when there is no danger of conception." That seems to me to be sheer hypocrisy and the Bill sustains this hypocrisy.
In section 1, why is there no definition of "family planning"? There is a definition of "family planning service" but there is no definition of "family planning". In any reasonable layman's sense, family planning means planning to have your family in a certain way, certain spaces between their births and so on.
Senator, a definition section only concerns itself with defining words and phrases which are used in the legislation. It does not set out to be a dictionary.
Certainly, but when a person, under section 4, has to have recourse to a medical practitioner who must establish, in turn, the bona fides of that person, the question of family planning comes in. Surely that phrase is used in section 4, at least. We have the Minister's statement in reply to the Second Stage debate in which he gave his own definition of family planning, where he said it does not really matter whether the person wants to space his children, or have no family at all, that the doctor must respect the person's decision on that account. If the definition of family planning which emerges in the Minister's reply on Second Stage means having no family at all, I suggest that the term “family planning” is nonsense.
I wanted to follow a point that has already been raised on the matter of the definition of the family. In this context, I noted the comments of Senator Jago last week, in the absence of a reference to those comments by the Minister in his summing up of the Second Stage. I refer to the Official Report of 4 July at column 767 where Senator Jago said:
I hold fairly strong views on the fact that the family is the natural, primary and fundamental unit group of society and is guaranteed State protection. That is in Article 41.1, paragraphs 1 and 2, of the Constitution. I support the State pledge to guard, with special care, the institution of marriage. That is in Article 41.3 paragraph 1. For me, as a Member of the Seanad, there is only one marriage, and that is according to the law of the State.
And then the relevant bit. I had to read those bits to make sense of what comes next. The Senator then went on:
This is the basis of the family, as far as I am concerned. Therefore, to protect the family, family planning must apply only to marriage under State law.
I would like clarification from the Minister. At times he has gone close to that, but I would like to have it more explicitly. If one takes the circumstances of a stable couple—a relationship of long duration—where they and their children live in the same place and have stable inter-relationships, would the Minister clarify the definition of family planning in regard to them—what I would call a family? Apparently, Senator Jago would not call it a family, but I would think it to be so.
It amuses me to some extent that all those who take a certain view of this legislation among their arguments deplore the fact that we, as an adult community and as a Legislature, must be devoting so much time to legislating for contraceptives. These are the very people themselves who seem to want to go into every comma, word and sentence in this legislation and tease it out and give me the benefits of their philosophy, their legal knowledge and their knowledge of methaphysics and science and morals and anything under the sun.
This is a very simply, fairly straight-forward piece of legislation. It is designed to meet a practical situation. It proposes to try to deal with a current social problem in a particular way. There is nothing of enormous complexity about its approach. It simply means that artificial contraceptives should be made available to married persons for family planning purposes. It sets out restricted limited arrangements whereby this can be done. I do not think it involves all the fundamental arguments which those Senators who deplore wasting time on this legislation seem to spend so much time indulging in.
Family planning is a fairly simple concept, to my mind. The idea in the legislation is fairly simple. It is used in the same context as it is used in the Constitution. The Constitution does not define family. I do not think that causes any problem. The only thing I would do here is define family planning and family by what it is not. The Bill does not intend that single persons should have access to artificial contraceptives and it seeks to ensure that. That is the principle in the Bill, like or leave it. If you disagree with it, you disagree with the Bill.
Does not intend?
The Bill is not so intended; it is designed and constructed to ensure that single persons do not have access to artificial contraceptives, unless on the advice of a medical practitioner for some medical reasons. That is simple; you can toss it around as much as you like; you can make it as convoluted as you like, but that is the simple approach of this legislation.
The single person insertion in the Bill would have simplified the understanding by the public of this matter.
I suggest it would not.
It is an authority for married couples. Correct?
I want to suggest that it is very simple straightforward legislation based on fairly simple, straight-forward acceptable principles. I genuinely deplore this attempt to stir up hostility between natural family planning and artificial contraceptives. I had no such concept in my mind.
But the Minister is using the word "artificial" all the time.
I know that lots of people do distinguish between them. I have no concept of hostility between them. There are a very large number of persons in this country—and, for the benefit of Senator Hussey, women members of our community—who make a very real distinction between what they consider to be natural family planning and artificial contraceptives.
Because they are conditioned.
Though the learned, academic Members of this House may deplore that fact, I tell them categorically and emphatically that that is the situation in the community in which we are living and for which we are legislating. Furthermore, I want to make this point to the more sophisticated wing of the Seanad who are so advanced in their thinking on these matters——
Keep looking over at this side of the House.
——that the World Health Organisation recognises, and bases a great deal of its programmes on the distinction between natural family planning and artificial family planning based on artificial contraceptives.
They do not discriminate against artificial family planning; this Bill does.
They base their programme on the fact that millions throughout the world make a very real, solemn distinction between the two systems. My legislation is based on the fact that many thousands in this country in their minds and in their moral outlook and in their lifestyle make a very real distinction. I accept that. I accept the validity of it. I accept the entitlement of those people to make that distinction. We had people talking nonsense about a thermometer. We all know that a thermometer is an everyday instrument capable of a hundred different uses that have nothing to do with family planning whatsoever, whereas an artificial contraceptive to my mind, as far as I know—I do not know a great deal about the technicalities of the subject—can only be used for one particular purpose. So to compare a thermometer with an artificial contraceptive is to my mind to indulge in academic nonsense.
Let me repeat, the Bill is constructed along certain clear-cut lines. Senators may not like the lines on which this Bill is constructed and that is open to them. But, could we at least recognise that it is trying to deal with a reality, with an outlook in our community? The legislation accepts that a very, very considerable number of people in our community and particularly married women—married women, I think more than anybody else—would dearly love to have a situation where they could have an effective method of family planning which did not involve artificial contraceptives.
This is a simple fact. This Bill recognises that fact. This Bill tries to accomodate itself to that existing reality in our community and therefore, it does distinguish between natural family planning and family planning which involves the use of artificial contraceptives. That is only wording. It is a simple matter of family planning involving artificial contraceptives and family planning which does not involve artificial contraceptives. If anybody objects to the word "natural" I want to explain that it is only in that context it is brought in, to try to make a distinction between these two separate attitudes and outlooks which exist among our people.
There is one other very simple thing and I think it is legitimate, that is in regard to most artificial contraceptives and possibly to all, there is a medical content or a medical implication and therefore the Bill introduces controls, limitations and regulations, whereas in regard to the type of family planning which does not involve artificial contraceptives, I do not think that there is any particular need for control or regulation or limitation of any sort because there in practically every case, I think, the methods which are described as natural family planning are simply the sort of thing in which people can instruct themselves, perhaps without recourse to medical opinion.
Business suspended at 1.05 p.m. and resumed at 2.15 p.m.
I would like to confirm something the Minister said when he indictated that there are many many thousands—hundreds of thousands—of people throughout this country who would welcome assistance in what we all know as natural planning, although that term is now being used in a pejorative sense here, something that I regret. The term "natural" is used in contradistinction to the situation where the natural function is drugged or stifled and literally speaking that it is then described—but only literally speaking—as unnatural. In that sense the contrast is made. A better contrast is natural and artificial. That makes it very clear and it is possibly less offensive in verbal terms. I was glad to hear from the Minister, and I have no doubt that was the message he got from the widespread consultations he had before he introduced the legislation, that he confirms that message, that the services to be provided are to be provided in the context of the family only. This is what the vast majority of the people want. I am well aware, as he must be well aware by now, that the section of the community who want something else tended to be more vocal and more articulate and made their views more widely known and could give a false impression of their numerical strength. I am quite satisfied from my knowledge of the country outside this city that that is not so. The Bill in the limited way that it provides for family planning in the context of a family as understood by the Constitution, as understood traditionally as the family within the concept of marriage recognised by the State, gets some measure of acceptance: if it has to be at least let it be only to that extent.
I listened with interest to the Minister's statement to which Senator Cooney has just referred and that is that it is the intention of the Bill to restrict the availability of contraceptives entirely to married couples except for medical reasons. I am one of what Senator Cooney would call the minority who would wish for contraceptive facilities to be available to all adults. This is not a matter on which the parties divide; there is division inside the parties. A certain amount of the division goes on grounds of age.
The younger members in general I think would wish that these services be extended to the whole of the adult population. For example, Senator Harney made it quite clear that she was of the same mind as I was on this. It was not as clear to me on Second Stage that this in fact was to be the case and it is still not entirely clear to me looking at the Bill in great detail that the availability is in fact restricted to married couples. There is one particular clause in section 5 (1) (a) where importation of contraceptives is allowed to any person and there is no question of marital status or adulthood or restriction as far as age is concerned or any other type of restriction.
I admit that those people who think that this is correct probably are in the minority. I think the time will come when it will change but I would like to say that this view that I hold is a sincerely held one and I represent people who hold the view absolutely sincerely. As I said on Second Stage, I found it hard to make up my mind about the Bill in general. For one thing I think that it is very important that the family planning services should be more widely extended, particularly through the health boards, but it still seems to me, looking at section 1, that the words "family planning service" do not a priori have to apply to someone who is a member of the family in the married sense of the term, that as a family planning service which involves any one of the following, family planning, contraception, contraceptives, there is no a priori restriction. I would welcome a clearer statement in the Bill along the lines of the statement the Minister had made, to say that it is the clear intention of this Bill to restrict the availability of contraceptives to married couples. Now, I disagree with that and if that clear, unequivocal statement had been in the Bill I would have opposed it for my straight-forward reasons on Second Stage. I still think that there are loopholes but I feel that I must express this point of view unequivocally.
On this section the Minister has made it quite clear that one of the main purposes of the Bill is that single persons will not have access to artificial contraceptives except for medical reasons. I want to refute something the Minister said before the lunch break. We were, I think, rather castigated for some kind of academic quibbling and time wasting on this measure. I must assure the Minister that I consider this to be an extremely important Bill and I do not consider that anything I am saying on it is academic quibbling. I am not an academic anyway and I am far from academic in my approach——
The Senator represents a distinguished academy.
Several distinguished academies. It is an extremely serious Bill and in the first section we were discussing definitions. We have various definitions and then we have the phrase "family planning" and we have the phrase "family planning service" which is defined. We are all aware that there is, in fact, a very great area of discussion as to what exactly is the family. If we are talking, therefore, about restricting artificial contraceptives to people who are married would the Minister explain to us if it is people in marriages recognised by the State with a marriage partner who is actually there? Is this Bill, therefore, denying artificial contraceptives, say, to the deserted wife who because of the laws of this State cannot get a divorce or re-marry? We are talking, therefore, about the fact that she may not have artificial contraceptives. The same applies to people whose marriages have been annulled by the Catholic Church and who believe themselves to be, in perfectly good faith, married legally and, in fact, are not in the eyes of the State.
There are so many areas here that are open to question and it is not clear enough to say that artificial contraception should be available only to married persons. We really must know have doctors the right to decide what constitutes the family or will doctors be prosecuted if they give contraceptives to people they know have not got a marriage partner living with them or will married people be expected to produce their marriage certificates if they go to a doctor they do not know? Lots of people go to doctors they have never met before. In the new system of medicine, with group practices and all this kind of thing, people often do not know the doctor they go to. I think these are serious, non-academic points which should be made about a very serious Bill. They are questions that seem to me to need answering and I would be very grateful to have answers on them.
What I want to say on this is probably anathema to Senator Hussey as it would be, I suppose, to some of those who are opposing the Bill very strongly. On most kinds of legislation I would press for the kind of clarity that Senator Hussey is asking for. I am not a member of an Opposition party. Therefore, it is not my duty to give the Minister a rough time on this subject. I am not a member of any lobby, so I am looking at it dispassionately. On most Bills I would look for the kind of clarity that is being sought most conscientiously this morning from all sides of the House. This is what is known in current illiterate parlance as an on-going situation. I described the Bill on Second Stage as one which does not give the freedom to which we all aspire but which gives us the freedom to achieve further freedom. I regard the Bill, no matter what its opponents say about it, as a step in the right direction, as a piece of contraceptive legislation which a Government have the courage to enact. It is full of ambiguities and full of difficulties but so is the current state of our thinking on contraception and on marriage, on sexual relations. To demand of this Bill and this section the kind of clarity, for instance, that you would look for, say, in a Bill concerned with industrial as distinct from sexual relations is to demand too much. I utterly respect the routine duty of an Opposition to oppose; I respect very much the instincts which make Senator West and Senator Hussey look for sharper, less ambiguous definitions, but I think there are really sincere, human reasons why these definitions cannot be sharpened much further.
In his most recent intervention the Minister purported to find a contradiction or piece of illogic in that there were people who deplored the giving of a great deal of time to the whole matter of contraception on the one hand and who simultaneously took up a great deal of time in debating it in the Dáil and the Seanad on the other hand. That is a debating point. I want to assure both the Minister and Senator Martin that it is not a matter of routine opposition by people in the Opposition whose duty it is to do so. I found a great deal that I could agree with in what Senator Martin said. This is an ambiguous area; it is a difficult area. The obscurities and contradictions in the Bill reflect the obscurities and contradictions in our society. I have not said it already but let me put it on the record that I also, though I am opposing the Bill, do see it as a step forward. It is better than what preceded it and I do not underestimate the Minister's difficulties.
I think the Minister did himself less than justice when he castigated what he was pleased to call "academic nonsense". I do not represent an academic institution or institutions but I am an academic. It is not enough to say that these distinctions are academic because the core of what I object to is something that the Minister, in his recent interjection, did not try to face at all, that is, the false distinction between natural and artificial—artificial is a more neutral word but it is still slightly pejorative—or natural and unnatural, which is an exceedingly pejorative alternative to the word "natural". No amount of dismissing the ridiculousness of talking about thermometers will get over it. That distinction is the basic fault in the Bill. It is not even trying to legislate into the laws of the land the position of the Catholic Church. It is trying to legislate into the laws of the land the position of a majority of the Irish Catholic Church because there are theologians in other countries who are highly respected inside the Catholic Church who believe as I believe that that is a false and meaningless distinction. Since it is continuously being used, since it is the core of the Bill, since it was the core of the Minister's intervention, I have to go a little further because what he said seems to make the situation worse.
He mentioned the World Health Organisation and he suggested that WHO upheld the distinction between natural and artificial. I do not believe that to be true. I have to go a little further to say what I understand the situation to be. There are many categories of contraception and one makes an absolutely correct and scientific distinction between different kinds. There is the kind that depends on rhythm, which is what the Minister calls the natural method. There is the kind that depends on a physical barrier. There is the kind that depends on surgery, whether it is to the male or female. There is the kind that depends on the use of hormones. There is the kind that depends on drugs which are not hormones, spermicidals and so on. Those five categories are quite distinct and if I were an expert I could add a few more. Nobody wants to blur the distinction between those five. Nobody wants to suggest that the rhythm method, or series of methods based on rhythm, are not very important, very valid, very desirable because they are acceptable to people to whom other methods are not acceptable. They ought to be researched, they ought to be propagated, they ought to be used. Nobody on my side of the House has any inhibitions about that. I disagree profoundly when he said that most artificial contraceptives had a medical connotation and that natural contraceptives had no medical connotation. All the evidence that I possess suggests that the use of a method like the Billings method, which is one of the rhythm methods, involves a great deal of training by qualified people, doctors or others. It is much harder to use and has a more medical connotation than a method like a condom or a cap which has almost no medical connotation. The Minister has reversed the relationship between "natural" and "medical" connotations. The natural ones are the ones with which it is difficult to attain an acceptable level of efficiency. They are the ones that are the least used in the circumstances where contraception is most necessary: in the circumstances of lower levels of education, of worse family relationships, of poorer levels of housing and in situations of drink. It is precisely there that they are the least efficient and it is precisely in attaining a reasonable efficiency from them that one needs a great deal of expenditure of money on training of medical and paramedical personnel. I do not accept his extension.
The World Health Organisation realises the situation existing in the world of which Ireland is an example. Most of the South American countries are in a similar category. Of course they recognise the validity of rhythm methods. Of course they recognise the need for research to make them better. Of course they realise the resistences that certain people with certain cultural traditions have. To extend that to say that the WHO accept the categories of natural and artificial is simply not true. The WHO recognises rhythm methods and supports research on them as on other things. The presentation that that distinction in this Bill is a distinction accepted by an authoritative body in the area like the WHO is untrue. The explanation that they support research into rhythm methods does not validate the Minister's statement that they accept the distinction of the two categories of natural and artificial. I believe that not to be true of the WHO and I would be very interested to hear the Minister's validation of his position.
All I am saying is that the World Health Organisation accepts that there are different levels of acceptability of different methods and bases its programmes on that. I hope I did not attempt to convey the impression that the WHO favours one method against the other, as it certainly does not. It is totally neutral and objective in its approach. The point I was trying to make is that it recognises and acts on the recognition that in different places by different people a clear distinction is made and it acts on that.
I am grateful for the Minister's clarification. If he looks back on the record he will find that it was possible for me to take the other interpretation out of what he said previously. We are making some progress. We are ad idem that rhythm methods are among other methods and that there are people to whom they are acceptable. Anyone designing reasonable programmes has to take cognizance of people's preferences. What worries me is that a distinction which is not made by the WHO is being made by the Minister in a piece of legislation. I used the words “sectarian” and “divisive” on the last occasion. The Minister must have taken exception because he recalled them and mentioned them today. I do not mean them abusively but I do mean them seriously because it is sectarian to legislate for the view of a portion of the people, even if they are a large majority. It is divisive because all those people who do not subscribe to what one might call the more conservative Catholic opinion feel excluded by the legislation and feel discriminated against. I am a humble example of a category that runs to hundreds of thousands in Ireland. To legislate in that way is divisive. I do not use the words abusively but they seem inescapable in the light of what the Minister is doing.
He dismissed as academic nonsense the question I asked him at the beginning. I asked him if a series of things would come within the context of being used in the way the Bill says in the definition of a contraceptive. Are scientific devices to measure acidity levels and the pattern of cervical mucus and the use of a calculator to determine safe days contraceptives? Leaving aside calendars and thermometers, which he seems to find not serious, those three things are made for the purpose of defining the time of ovulation so that a safe period can be worked out and contraception avoided. Therefore, they would seem to be contraceptives according to the definition in the Bill. I am asking for his clarification in the matter.
As this section seems to be the one on which the whole structure of the Bill is erected, I should like to say that it is manifestly deficient in not having a definition of family planning.
The debate has proceeded in a way which raises fundamental positions. I feel I must make my contribution on this section in relation to these positions. The Minister was not fair to himself and the person I believe him to be in dismissing the contributions of Senators as academic nonsense. He should remember the dangerous precedent of Goering who, it was said, reached for his gun when he heard the word "culture". I am seriously trying to address the Seanad on what is for me a very difficult subject to speak about. I have got a great deal of enlightenment from the Minister and other Senators who have spoken. I thought the last contribution from Senator Keating made wonderfully clear to me the whole matter we are discussing. I have to try the patience of the House a little in so far as I do regard the Bill as sectarian or denominational. I want to choose the least ugly word—because I understand the dilemma which has led to the selection which has been made.
Why I do not agree with other speakers who have directed their minds to this subject and why I do not agree that the Bill represents a step forward and why I therefore am opposing it is that it avoids the presentation of the real choice to the people. We are people with what has been described as a predominantly Roman Catholic ethos. This State has to decide whether it is to be a pluralist society, giving equal treatment to all opinions which can be legitimately expressed and acted upon without damage to what can objectively be looked at as the common good.
I am very sorry if this sounds like a lecture. I should like to precede everything I said by saying I may well be wrong in what I am saying. The Minister may well be right in what he thinks. Senator Martin may very well be right in his confirmation of what the Minister said. I must say what I think is right. Through enacting this Bill, we are dodging an issue encouraging the continuation of a pretence, permitting the continuation of a prejudice, an unthinking view about very important matters.
On a point of order, Senator Fitzgerald is making a Second Stage type of speech on the principles of the Bill. That principle has already been accepted by the House and we are now on Committee Stage, on section 1.
We are on a section.
I thought I was directing myself in the train of the debate which preceded me without departing in any way from that train with regard to the definitions or absence of definitions in this section. I will certainly be wholly obedient to the ruling of the Chair.
I trust that the Senator will make specific reference to the section in future.
It is difficult to perform that duty at the end of every sentence or paragraph and I have not noted any other Senator being called on so to perform. It spoils the important point I wish to make, which is that the absence of the definition of family planning means that the identification of the particular expressions of one denomination in this country are being accepted in this section without regard to the unfair impact on the people who bona fide hold other views. It is necessary for me to give my testimony, though I know the only testimony that counts in relation to these matters is actions not words. I adhere to that ethos and accept its importance and significance. This very section imposes in its inadequately formulated way on the ability of the truth to communicate itself to the Irish people and the rest of the world. It adds force to truth and adding force to the communication of truth only weakens the ability to communicate itself. Because of the definitions in this section the Irish people are less free than they would otherwise be to examine the credentials of the claims that are made by the Roman Catholic Church with regard to the reality of life, the astonishing claim that life is not, as Sartre called it, a futile desire, the astonishing claim that the affirmation of life itself involves the acceptance of a concentration camp as being ultimately benignant; that the affirmation of life itself, by virtue of the implications of the definitions in this section involves the acceptance as being ultimately meaningful, true and calling for the obedience of man, the experiences of the boat people leaving Vietnam at the moment.
The implications of the definitions of this section go further on another matter that I diagnosed to be our greatest weakness, that is, the self-confidence of the Irish people of that very persuasion whose very freedom of expression is impeded by the description which you will find of the Irish girl who fought so nobly, as I think, to preserve her chastity in Britain under the description of ‘Biddy', while the same English people appropriately call themselves ‘John Bull'. The definitions of this section affect materially the reputation of the Church which has the first claim on my loyalty because it is for me a communication of a type of truth which is not within the range of calculative thinking and yet is capable of an examination of a different and I would argue in Heidegger's words, higher order of thinking.
The definitions in this section imply a philosophy which is wrong, that is the deliberate selection by the State of the natural law of philosophy which has an antique history going back into its earliest articulation to what they call the Greek miracle in the fifth century before Christ and long before that in the experiences of the people of the East as well.
I find that the sections and their definitions make possible a falsehood by the use of the words "family planning service", a falsehood that this is to be limited to parties to a marriage recognised by the State when it is impossible in the absence of an appropriate definition of what family planning is in this section to construe other sections of this Bill as meaning anything other than what they ought to mean, that is, that this service is available to people who are not parties to a marriage recognised by the State. For the State to say anything other than that is for the State to intervene in the whole area of sexual congress between adult human beings, which is not the legitimate concern of the State. It is never done so properly. The Roman Catholic interpretation of this—is only the current pronouncement of what was the prevailing view of all Christendom and the law of England up to 30 or 40 years ago—that marriage was not consummated if it could be shown that the only intercourse was by virtue of contraceptives as defined by the Minister in this section. The people are denied examination with an openness of mind and an absence of prejudice of most important matters affecting their lives and their destinies. That is my real conviction.
With regard to matters which Senator Martin mentioned—the embarrassment caused by this kind of debate—I do not understand where the embarrassment comes except presumably from our demographic experience, which is the most extraordinary in the world, an absolute abberation, as far as I know, and I am open to be corrected on that as on so many other things. How anybody of the ethos which is affected by the definitions of this section could talk about being embarrassed in the face of "Hail Mary, blessed be the womb that bore Thee, and the paps that gave Thee suck", I do not know. When they consider the genealogy of Jesus through Joseph in St. Matthew and find that of the four named women, Thamar had intercourse with her father-in-law, Rahab was a prostitute in Jerico who rendered her hospitable service to the Israelities to make it possible for them to achieve the promised land, and Bethsabee was the mistress of David and the mother of Solomon, I am damned if I know how people can be embarrassed discussing sexual intercourse. If they read the New Testament or the Old Testament they will not find the Manicheanism which came in centuries later and is only an unfortunate part of the baggage which the Church took in. But with so much other wisdom did not the Church accumulate a wisdom which the sections in this Bill and the spirit of this Bill is continuing to encourage the people to reject or at least not to protect in the sense of letting them look at it with the maturity of free adults? That is all I have to say.
I should like to indicate to the Minister that this is not academic nonsense and that declining to answer reasonable and courteously asked serious questions may very well prolong our deliberations.
I do not care how long the deliberations last. After the contribution by Senator FitzGerald it is clear that nobody on that side of the House is interested in discussing this definition section as a definition section. I have said all I can say about it. I have nothing more to add. Senator Keating's question got lost in the diatribe we have had from Senator FitzGerald. If he wishes to repeat it I will endeavour to answer it.
"Diatribe" is not necessarily a pejorative word and I am not going to take it as pejorative. Would the Minister tell us why, having regard to a contribution in his intervention that these services were to be available to married people only, this does not appear in the definition section? What does he mean by "married people"?
The definition section in the Bill is sufficient for the purposes of the legislation. A definition section does no more than explain phrases and words used in the legislation. Perhaps Senator Keating would remind me of the questions he asked and I will answer them to the best of my ability.
I thank the Minister for the opportunity to reiterate the questions which arose out of my trying to query the natural versus artificial category of contraception. In relation to the definition of contraceptive, I asked if the calculator used to determine the time of ovulation so that one can rapidly and easily calculate the safe days regardless of what particular month one happens to find oneself in, which is produced uniquely to aid the use of the rhythm method of contraception, is a contraceptive in the sense of the definition. I asked him if a device designed uniquely to check the Ph of the reproductive tract to determine precisely the time of ovulation so that the fertile period might be avoided is a contraceptive in the sense of the definition. I asked him if an instrument designed to check the pattern of crystals and consistency of cervicomucous to determine exactly the date of ovulation in order to avoid pregnancy could be called a contraceptive within the meaning of the definition.
To the best of my knowledge none of those things would be a contraceptive. The definition is intended to refer only to things which are used during the process of sexual intercourse to prevent conception. It seems that Senator FitzGerald set out to show that he could make a long speech going back into the Old Testament and by his parliamentary skill hang it on the definition section. I am prepared to grant him the linguistic and oratorical skill to do that sort of thing but I do not think it really gets us much further. Several Senators, including Senator FitzGerald, protested that they genuinely wanted to tease out this legislation with a view to improving it and seeing exactly what it meant. I do not think Senator FitzGerald's last contribution fitted into that sort of process. Maybe it does, but I just do not think it does.
In any piece of legislation if one wants to one can have a reductio ad absurdum argument and one can go on and on ad infinitum. But this definition section is simply a device by the parliamentary draftsman to try to make the legislation work. It has no philosophical, metaphysical, religious or moral content in it. It is a parliamentary drafting device. It is set out by the parliamentary draftsman to provide that when he uses such and such a word or such and such a phrase through this legislation, it has this particular meaning. The definition section usually only contains definitions of words used by the parliamentary draftsman other than in their normal natural way. That is all the definition section is, and how we can spend this amount of time and drag in every possible religious and moral concept that anybody has ever heard of into a definition section does not indicate, to me at any rate, a serious addressing of the Senators concerned to the legislation. I hope I have answered Senator Keating's questions.
I want to come back to this business of natural family planning as distinct from family planning involving what I, for want of a better term, call artificial contraceptives. I am not setting one up against the other. Surely that must be clear to those who seem to be attacking this Bill because it gives some recognition to natural family planning. The Bill also provides, for the first time ever in our community, for access to artificial contraceptives in a family planning context. So to that extent it recognises artificial contraceptives in a statutory way. Could we, once and for all, get away from this setting of one type of family planning method against the other and recognise that both of them are contained in this legislation and both of them are provided for?
With the speech which Senator FitzGerald made, my question that I had asked previous to all those speakers appears to have been left out. So I would ask for the same indulgence that Senator FitzGerald got to repeat some of the questions that I have asked. They were to do with the definition of "family planning" and, specifically, the word "family". In his intervention before the lunch break the Minister quite clearly stated that this Bill would prevent single persons from having access to artificial contraceptives. I asked, therefore, did single persons include unmarried mothers and their children. Are they or are they not a family? Are widowed persons and their children not a family? Are a deserted wife or husband and their children a family or not?
If we are going to talk about family planning services and contraceptives in a family planning context, it is not mischievous or time-wasting to find out what definition of family we are accepting. It is not defined in the Constitution; it is not defined in this Bill. If doctors are being put in a position of dispensing artificial contraceptives, it is important for the guidance of the doctors concerned that they should be quite clear as to what the Minister's or this Bill's intentions are regarding the dispensing of contraceptives to these categories of people. That was my question.
At the risk of wearying the House I must reiterate that it is not we here in the Seanad who are putting one form of family planning against the other.
Hear, hear.
It is the Bill which is doing this in the way in which it gives all the running, all the favour, to natural family planning and approaches with a censorious eye those who choose to use other methods; that is right throughout the Bill. So the Minister cannot get away with accusing us of setting one method of family planning against the other.
Again on this section I take the Minister's point that section 1 is not a dictionary, that the definitions given there are for the purpose of clarifying the legislation and what is referred to later on in the legislation. If so, section 1 is gravely deficient because section 4 (b) (2) says that the person must approach a medical practitioner from the point of view of establishing his bona fide purposes in family planning. What does that mean? Family planning is not defined in section 1. According to the Minister's statement in replying to the Second Stage family planning could mean having no family at all and since so much has been said about the Constitution and the safeguarding of the family and everything else I suggest that the implicit definition in the Minister's reply to the Second Stage that family planning means no family at all is an utter nonsense, and indeed, an irreverent anticonstitutional nonsense.
This is the last thing I want to say. It is simply to comment on the reply the Minister was courteous enough to give to my questions. If he had given any other answer to the three questions about the three devices that I enumerated other than the answer that they were not contraceptives, the whole of the distinction between natural and artificial methods would have collapsed. He gave the necessary answer but it is also, in my view, a nonsensical answer and it is seen to be nonsensical by anyone who will look at it in an unbiased way. In other words, what he has done by the courtesy of his reply, is to demonstrate the nonsensicality of the basic distinction between natural and artificial. That is the first comment.
The second comment is even briefer. The Minister defines a contraceptive as something used during the process of sexual intercourse to prevent conception. That definition rules out all the hormonal contraceptives. It is not an adequate definition as the Minister also knows. I do not propose to pursue this section any further. I am satisfied to demonstrate the fundamental illogic of his basic position firstly, and secondly the inadequacy of his definition of contraceptives.
Amendments Nos. 5 and 6 have been ruled out of order.
I can be very brief on this because it has been pointed out that the amendment of Senator Robinson and myself to delete the word "natural" has been ruled out of order. I, of course, accept that ruling, but I want to take a little time to indicate the reason that I believe that is a bad decision although, as I said earlier, it is not my purpose to argue the rightness or wrongness of the decision which I said I accept. All the other points that I would have made on this amendment I have already made on section 1. It was just a matter of transferring the argument. It was relevant either on the definitions or under subsection (b) of section 2 with this single exception. It relates to whether the omission of the word "natural" so that the section would read "to provide a comprehensive family planning service" would involve a charge on the Exchequer. That was the reason it was ruled out of order and that ruling I accept.
The Minister said in reply to our contribution on section 1 that most artificial contraceptives have a medical connotation whereas natural contraception had no medical connotation. He also added that people can instruct themselves in natural contraception. I believe that the argument is directly the opposite. I believe that providing a family planning service restricted to rhythm family planning would, if it were widely and generally available, be more expensive than using all of the methods.
Does the Senator realise I am under a statutory obligation to provide both?
I do so realise.
That is why I find this argument about the distinction between natural and artificial contraception to a large extent irrelevant. That distinction is only made for the purposes of the construction of the legislation. When this Bill is passed it is my firm intention to provide a fully comprehensive family planning service of any sort that people may require.
I will not pursue what I was going to say. I am grateful for the Minister's assurance but I will note something that he pointed out earlier. We all have to remember when we are legislating that our intentions, even the Minister's intentions—with respect to the Minister's commitment and dedication in this area—are not important. What is important is what is in the legislation. Ministers change, with respect.
I am implementing the legislation.
The Minister's intentions are important only as long as he is a Minister. Nothing of what he says in regard to his intention here—and I do not for a moment doubt that intention—is binding either on the Judiciary or on a successor. I will reiterate my belief in the correctness of what Senator Murphy said. Is it not a pity then that the Minister is concerned with all sorts of contraception? Is it not a pity that this false distinction between natural and artificial was introduced at all? Would it not have been much better to have legislated for what the Minister now assures us he intends to do? We know where that distinction between natural and artificial comes from. We know that it is meaningless in practice and nonsustainable when analysed and that has been demonstrated by today's debate. We know that it is divisive. I have been properly rebuked by Senator FitzGerald for avoiding the word "sectarian" which has pejorative overtones which I do not intend but the source of it is a particular religious viewpoint. The complexity and the length and the nebulousness were not introduced by the Opposition; they were introduced by this completely false distinction between artificial and natural. I am extremely grateful for the Minister's assurance that his intention is to provide a comprehensive service which, if I understand correctly, will ignore that distinction in practice.
I had not intended to speak at all but I feel a compulsion to intervene at this stage. I will say just a few short words in dealing with this section. I can assure the House that it will be a Committee Stage intervention. I would like to make two points. First, the decision of the Minister to provide a natural family planning service has been received very well by an overwhelming majority of the people of this State. That is beyond all doubt. The second point I want to refer to is this. I have listened here all morning to the debate. There is a certain unreality about many of the things that have been said on the other side of the House. Time and again we have had the words "discrimination", "sectarian"; the Catholic Church to whom the overwhelming majority of the people of this State belong, has been referred to censoriously.
The Catholic Church's moral teaching prohibits the use of or the practice of artificial contraception. That is accepted by an overwhelming majority of the Catholics here. If there is an ethos it is the ethos of the very facts of life as they are lived here. That is what the people believe; it is what the people want and what they have always wanted. Our history goes right back. We have evolved a certain type of thinking, a certain philosophy, a certain attitude towards life, the family, men, women and children. The family life has always been held sacred from pre-Christian times. The family is a great unit. Look alone at the number of words we have in our own language for families, brothers, sisters, children, human beings of all shapes, sizes and descriptions. We have a multiplicity of nouns to describe them; it is our tradition and that is the kind of people we are. There is no use in trying to suggest that we should be something that we are not. We cannot be other than what we are. I refer again to the first point I made; the decision to provide a natural family planning service and to write it into legislation has been received very well by the vast majority in this State.
On section 2 (b) I had assumed always, and I am glad to have it confirmed, that this section that says that the Minister shall provide a natural comprehensive family planning service did not prevent the Minister from providing a comprehensive service in methods other than so-called natural methods. That has been confirmed by the Minister. The paragraph does not exclude; it is an enabling paragraph.
In the orderly organisation of family planning services which is mentioned in paragraph (a) of section 2 there seems to be a problem facing the Minister in this respect in that there are a very small number of doctors who are trained in the provision of full family planning services. It seems to me to be a grave drawback in the intention of the Minister to provide the whole country with a comprehensive family planning service. Since under the Bill everybody who wants authorisation or prescriptions for contraceptives will have to go to doctors, we are going to face a situation where the doctors are apparently going to be deprived of what they are using at the moment, the family planning clinics, and are therefore going to be in a very difficult position because they are not trained in this area. I would have liked to have seen in this Bill as well as provision for moneys for research into natural family planning methods, I would like to have seen in this Bill provision for money for training doctors in these methods because, by the nature of the situation governing contraceptives in Ireland, we are very short of doctors who understand about this specialty. I would be very interested to know if the Minister has any plans in that area.
I want to give the Senator and the House a most categorical assurance that high on my list of priorities will be the arranging for the training of doctors, nurses and other para-medical persons to provide a full family planning service. Already the first step has been taken in that the Royal College of General Practitioners and the College of Obstetricians and Gynaecologists have established a committee immediately to make arrangements for post graduate training of doctors in this field. I shall be relying principally on the general practitioner service to provide these services. An inevitable concomitant of that decision of mine is to make sure that our general practitioners have the opportunity to have access to training in family planning methods. That will be a top priority in the implementation of this legislation.
In reply to Senator Keating, I want to make the point that when I say that the wording of this legislation is all that matters I mean that when it comes to have the legislation interpreted in the courts the wording is what matters.
But we are in an entirely different area when we are talking about the implementation of the legislation and the creation of a family planning service. That, of course, is a matter of normal policy. I propose, very simply, to provide a family planning service the same as I am providing any other health service and to provide all the resources that are necessary to do that. There is no need at all to provide in this Bill statutory provision for funds for the training of medical practitioners or nurses. That is already covered within the general ambit of the Department. We have existing and will shortly be giving a much more formal statutory basis to a board for post graduate medical training and that will be another instrument available to us to make sure that doctors generally and the nursing profession and others secure the type of training and instruction in family planning that will be required.
I suggest that this is a totally unexceptional section. It does not set out to do anything more than is stated on the face of it nor does it have any additional implications. I am simply placing on myself a statutory obligation to provide family planning services in their widest context.
Might I say that just when one tends to succumb to the temptation of being bored and to say that we have talked enough about it one suddenly realises the force of Senator Alexis FitzGerald's point that indeed there is a virtue in teasing things out, because the more the Minister responds to points made in the debate the more it seems to me that he is reassuring us that he does not intend any kind of moral difference in the State's position as between so-called natural family planning and artificial family planning. He has just again given that assurance in regard to this section and, by implication, in regard to section 9, the one about research. More and more one wonders why all of this is not in the Bill. Why does the Bill say one thing and the Minister say another? Is it that the format of the Bill, the way in which it is phrased, has to meet the position of the powerful and hidden forces in this country? What the Minister is saying in effect is "Pass this Bill; it will be all right on the night"—if I may use, yet again, one other inappropriate methphor. It is this kind of hypocrisy that I strongly object to once more. Section 2 clearly discriminates between natural family planning and other forms of family planning even in that last phrase in (b):
that do not involve the use of contraceptives.
I do not know whether it is the scars of my Catholic boyhood or not but I would translate that as meaning so long as it does not involve any of those dirty things.
I object to the section because of the censorious eye which the State casts on methods that do not involve family planning.
With regard to Senator Cranitch's intervention during which he said that people would think we should be something which we are not, that we should behave as if history had not conditioned us in a certain way, this was echoing the Minister's own point in his reply to the Second Stage when he said that a number of Senators would wish that we were a different sort of people than what we are, that we had different beliefs, traditions and outlooks. It cannot be said too often that we must make a vital distinction here. There is a Catholic tradition—some of us would say it is very distorted tradition in modern theology. But we concede that it is part of the way in which we were formed not, as Senator Cranitch said, over countless centuries of history but over the last century and a half. We concede that, of course, the majority have a right to be heard on this issue. But any relevant Minister and any Government which espouses leadership should say that people are perfectly entitled to be respected in their consciences in this matter and to be provided for in the matter of natural family planning but that they have no right whatsoever to violate the basic principles of civil and religious liberty in dictating to other people what forms of family planning they should adopt. This is what this Bill does and this is what this section suggests.
I see no bias or discrimination in this section. I say that as a person who, on the Second Reading, in dicated quite clearly that—whether I am heretical or liberal—I see no fundamental distinction between so-called natural and artificial contraceptives. The first part of this section required the Minister to secure the orderly organisation of family planning services which have already been defined as including instruction and information and so on in relation to contraception and contraceptives. I see nothing biased or discriminatory about that. Indeed I see only reassurance for the vast number of people who have a moral conviction about the use of artificial contraceptives that there will be a comprehensive so-called natural family planning service available to them.
I had no great sympathy with the prolonged discussion we had about definitions because it is necessary for practical purposes to distinguish between a contraceptive—an applicance or a drug or something that can be imported or displayed or sold—and information about how to identify critical times.
At page 3, section 2, line 2 of the Bill it says:
...secure the orderly organisation of family planning services.
In the light of what the Minister has said previously, would he clarify the role that he sees in this orderly organisation for the existing family planning clinics?
That will arise on another section.
I accept we can talk about it later on. Since mention has been made of what Senator Cranitch said, I wish to comment on it. I wish he was here because I want to say something sharp in regard to what he said. It was his use of the word "we". I make the comparison of his use of the word "we" with the use of it by Dr. Ian Paisley on the other side of the fence. When Ian Paisley talks about "we, the people of Ulster" he ignores the Catholic people of Ulster. "We" are the people who support Paisley. It is not that the others are wrong; it is that they are non-persons. He says "we" for that part of the country as if the others did not exist. Senator Cranitch talked about the ethos that we had developed. He said "We cannot be other than what we are". What did he mean by "we" there? This is very relevant to the Bill because the "we" means the people of his religion. The people that Senator Cranitch does not see the existence of are much fewer than the third in the North that Dr. Paisley does not see the existence of. They are very important in this nation.
This is not a homogeneous nation but a pluralist one with pluralist traditions. One of the reasons I passionately want to see the whole of it as one country is that I want all of the traditions to be recognised. It is a marvellous place because of the different traditions. The use of the word "we" in the context in which he used it is sectarian. I could not ask for a better illustration.
There is no "we" as such in section 2.
I am replying to a speech, which was admitted by the Chair, of a Senator two speeches ago and I am, therefore, in order. The "we" in this context are the people who share his system of beliefs. The problem is that that is not the system of beliefs of this nation. This is a pluralist nation. I could not have asked for a better illustration of everything I deplore in this Bill and why it is that it is divisive.
Senator Cranitch was talking about the tribe and not the nation.
I am of the ethos already referred to. In paragraph (a) the Minister shall secure the orderly organisation that in (b) shall provide comprehensive natural family planning services. There is immediately a discrimination and a difference in treatment. I find this unjust in the simple interest of the truth. I object to what is involved in this section as I object to many of the other sections.
Amendments Nos. 7 and 8 are related and may be discussed together.
I move amendment No. 7:
In subsection (2), page 3, lines 15 to 17, to delete all words after "service" and substitute "in accordance with regulations which the Minister may make in relation to such family planning services".
All I will do is plead in aid of it what I have already said.
I will plead inability to accept it.
I will engage in the same process with the Minister in relation to amendment No. 8.
On a point of order, have both amendments been formally moved?
Amendment No. 7 is moved.
We could say they are gone by the board.
The amended subsection, subsection (2) of section 3, would then read: a person other than a health board may make available a family planning service in accordance with the regulations which the Minister may make in relation to such family planning services. We have the Minister's assurance that he wishes to provide a comprehensive family planning service and that in its comprehensiveness it will include the rhythm method, the so-called natural, and all the other methods. This simply states clearly that this can be proceeded with. It is possible to provide this service and also to clarify the problem of the clinics. A person other than a health board may make available a family planning service which is not restricted to the provision of information, instruction and consultation of methods which do not involve the use of contraceptives.
If the word "contraceptive" were to be interpreted as I interpreted it in our debate on the definition, that section as is currently drafted would be an extremely restrictive one. It would be more restrictive even than the Minister intends. Senator Whitaker made a distinction between information on the one hand and devices on the other hand. He said that the availability of information was quite separate and therefore there was a real distinction between natural and artificial. In the use of rhythm methods it is not simply a matter of information; it is a matter of actual devises which can be used to detect the time of ovulation.
The object of this amendment is to clarify the right of family planning in regard, firstly, to comprehensiveness —removing the stipulation that it does not involve the use of contraceptives—and secondly, to widen the possibility beyond simply from a health board. It is perhaps centrally concerned with statutory protection of the existing clinic, which we believe to have been properly, well and expertly conducted in the light of the best medical knowledge and to have served a very useful purpose in the State.
Amendment No. 7 relates to subsection (2). Subsection (2) is very limited in its meaning and its purpose. It has nothing to do with family planning clinics. Subsection (2) is simply a provision which is put in to safeguard the situation as regards natural family planning. It has been represented to me that it would be unduly onerous to make the provision of instruction in natural family planning subject to licence because there is nothing involved in it except instruction, guidance and advice. To put it at its ultimate, a mother could instruct her daughter in natural family planning methods. Therefore, subsection (2) simply takes natural family planning methods in that way out of the general statutory provisions of the legislation. The section as it stands is a reasonable safeguard. It would not be improved by compelling me to make regulations in this area, and that is what the effect of amendment No. 7 would be.
In the context of the remaining part of subsection (2) of section 3, what the Minister says is correct. In the context of the amendment which removes that distinction to which we object, of not involving the use of contraceptives, it is not correct. The intention of this amendment is to change the purpose of that section which I understand. Section 2 is to organise an orderly family planning service and to provide comprehensive information on natural family planning. That is one part. That is what the Minister shall do. We want to guarantee the further right, which is, as I understand the legislation, not guaranteed anywhere, that the possibility will exist under law, as distinct from the intention of a reforming Minister, to have a comprehensive family planning service organised, either by health boards or by others, which does not take account of this distinction.
If the amendment was accepted there would be no difference between subsections (1) and (2). They both just simply provide that any family planning clinics would be subject to regulations. As it stands, the purpose of subsection (2) is to take natural family planning, which only involves instruction and guidance, out of the regulatory machinery.
I see the point the Minister is making. This amendment is to be construed in conjunction with amendment No. 8 which then proceeds to delete subsections (3), (4), and (5). Without changing subsection (2) the acceptance of amendment No. 7 without amendment No. 8, would weaken the Bill rather than strengthen it.
I raised in an earlier diatribe the question of the provision of education, whether the words "information, instruction, advice and consultation" were not tantamount to an educational process. If it were such, what was the legal advice available to the Government on the question of the rights of parents to choose those by whom the education was to be imparted? Whatever I may have said I did not have any great confidence on the legal question. It was a matter of importance for the Minister to be notified about it at that stage for consideration, that is, whether there is any intervention in an area which is protected by a constitutional provision. I do not know whether the Minister has had an opportunity of checking the point.
I sought advice. There is no difficulty.
This does not amount to education.
Exactly.
Does this mean that children of parents of any age could of their own choice, option and without the knowledge of their parents, be receiving instruction, information, advice and consultation from bodies which were or were not providing contraceptives. I am being absolutely neutral.
Only in natural family planning.
It is the understanding of the Minister on the advice he has received that children of any age, without the knowledge and consent of their parents, could attend such clinics and receive advice?
When artificial contraceptives are involved it comes within the general licensing and regulatory provisions of the Bill.
The Minister is saying that he can ensure, if it is so advised to be the proper course, by regulation that the operations in this area are in harmony with whatever happens to be the law at any given time with regard to what is described as unlawful carnal intercourse with females under specified ages. That law derives from, oddly enough, a social problem of an entirely different character when a well known journalist, W. T. Stead, was sent to jail because of efforts to expose the way that young females were being prostituted and sent off on white slave traffic. That led to all this kind of statutory law which still survives on our books. The situation legally is, if I am correct—I may not be—that even parents could not consent to intercourse where the woman—the person with the womb—was having intercourse with somebody else. This would not be permissible except under the conditions of marriage. It is important that we have one law or the other. I do not profess to have adequate information on what, either psychologically or physiologically, that age ought to be. There was a great body of opinion supporting the old view that the more postponed this experience was the better for the normal development of the person concerned. All I am concerned about is to draw the Minister's attention to it. Consideration should be given to this whole question of age, intercourse and so on. This is the only point at which the law has, pre-1935, intervened in sexual intercourse of a private character without public aspects—Mrs. Patty Campbell's riding horses in the streets rule being the applicable one by Christendom—the cop found to be right as part of the common custom of all areas of England which the judges went around to identify.
On section 3 (3) (b) the Minister shall not give his consent unless he is satisfied that it is in the public interest to give it and that the service is reasonably required to meet a particular need. It would be helpful if we could have some clarification about these words. I wonder what the Minister foresees as constituting a particular need. Would it be in a situation if in some townland in Mayo or nearer home there was no doctor or chemist available who would co-operate with this Bill and provide a full comprehensive family planning service to the people of the area? We have to ask the Minister what he has in mind when he talks about something being reasonably required. Who is going to be the judge of what is reasonable in this respect? We have been asked all through this Bill to agree that the doctors will be the people who will decide what is reasonable. In this case it seems to me that the Minister will decide what is reasonable or what is in the public interest. That question strikes me on that part of section 3. Section 3 (4) states:
Information, instruction, advice or consultation...shall not be provided ...under this section except under the general direction and supervision of a registered medical practitioner.
I should imagine that the words "general direction and supervision" are carefully chosen there. I hope that it means what I think it means.
The Senator can take it that it does.
Perhaps I should therefore say that what I think it means is that nurses and other paramedical personnel will be able to give contraceptives to people when a doctor is generally in supervision. He may not be there.
The subsection only applies to information and instructions by consultation.
It does not relate to the supply.
Artificial contraceptives can only be supplied by pharmacists.
A doctor could leave a blank form available and other personnel in the particular place can fill in names. That is what I thought it meant.
No.
That is not what the Minister means?
I thought the Senator meant, when she was speaking about general direction, that the doctor would not have to personally supervise every single act and operation in a clinic. The clinic would be under his general direction with paramedicals or trained people or nurses working to him. It would be under his general supervision. The issue of prescriptions or authorisations can only be done by the medical practitioner.
Every prescription or authorisation must be given by the doctor to a specific person and not under his general direction?
Yes. Perhaps I should explain that the other question raised by the Senator, might reasonably be required to meet a particular need, those words mean what exactly they say. It would be the Minister who will decide in the public interest. That is a political ministerial function, a function on which the Minister can be questioned in the Dáil and elsewhere on whether or not his actions are reasonable. The purpose of that is in the event of the major reliance which I am placing on the general practitioner service and the pharmacists not being able to meet the needs in a particular area for a particular class of people, the Minister can license the clinic to meet that particular need. It might be an area or it might be a category of persons.
Section 3(6) states:
...this subsection shall not be construed as restricting the discretion of a registered medical practitioner in his clinical relations with a patient...
In his reply on the Second Stage, the Minister stressed that a doctor would have the duty to provide a married couple with whatever they ask for in the area of contraception. That was welcome news. It relieves me of a misapprehension I apparently had, which was that doctors were going to decide whether or not married couples could have artifical contraception. That is not envisaged under the Bill.
Does subsection (6), which says that we will not restrict the medical practitioner in his clinical relations with his patients, mean that if doctors give authorisations to people who are not married they will be required to break the secrecy which doctors normally have with their patients? It is a very fundamental attribute of doctors and their relations with their patients that it is totally secret. I hope that this section which seems to be put in with the specific purpose that we will not construe it as restricting the discretion of a registered medical practitioner in his clinical relations with a patient, will mean that nobody is going to be hanging around or chasing doctors trying to find out whether or not they are giving authorisations or prescriptions to unmarried people for artificial contraceptives. That is another point that should be cleared up because it is fundamental.
It is one of the purposes of this provision that the traditional confidential relation between a doctor and his patient will be scrupulously preserved. I became irate when somebody suggested that doctors would talk about their patients. This provision is put in here specifically to safeguard that very valuable professional tradition that the doctor's relation with his patient is absolutely totally confidential. Another reason is that, of course, we have to ensure here that the medical aspect takes precedence. In other words if for some good medical reason a doctor is reluctant, or not prepared, to prescribe any particular contraceptive for his patients in their own best medical interest, nothing in this legislation should compel him to do so. I cannot compel him to do so.
Perhaps the Minister could help me. I think I am correct in saying that if the present family planning clinics, as we know them—I am sure the Minister is familiar with their operation—continue to operate legally, under the provisions of this Bill they will need to obtain his consent under subsection (3) of this section. Is that correct?
The position will be that under this subsection (3), the Minister for good and valid reasons, in the public interest, may licence family planning clinics. If he does licence a family planning clinic, that family planning clinic will have to comply with the provisions of this legislation.
I take it from what the Minister has said that he is satisfied that it is in the public interest. I am speaking now of the family planning clinics as they operate at the moment. I accept, of course, that they have to comply with the other provisions of the Bill, but I take it that the Minister is satisfied that it would be in the public interest that they continue to provide that service, subject to their complying with the general provisions of this Bill.
I am not saying any such thing.
With respect, I was not able to catch what the Minister said in reply to that.
I am not making any such statement as the Senator suggests.
I had raised the question of the clinics earlier and the Minister said, which I accepted, that it could be taken later on. The only place it arises is on section 3 of the Bill which is given in the broad characterisation as being the one concerned with family planning services. Subsection (3) has to be read, parts (a) and (b) of it, together. The enabling part must be paragraph (a) which says that "A person other than a health board may make available a family planning service not being exclusively a family planning service such as is referred to in subsection (2)". That is all right, but then the conditions on which that may happen are set out in what seems to me an extraordinarily negative way because in paragraph (a) of subsection (3) it says "with the consent of the Minister". Then paragraph (b) defines the conditions of that consent and it phrases it negatively, that he shall not give his consent unless he is satisfied of two things, in other words, that a positive response to, for example, the thing that concerns me—the existence of the clinics—requires that he be satisfied on two things, and otherwise it is not enabling in any general way. It is saying that it is binding him to give his consent. It is not binding him to give consent, subject to certain conditions. It is binding him not to give his consent unless conditions are met and those conditions are quite extraordinarily nebulous because it says: "unless he is satisfied"—he being the Minister—"that it is in the public interest to give it". Now, I am happy to see powers being given to the Minister to set up a comprehensive family planning service. If it is anywhere in the Bill it is here, but I am wondering is it anywhere in the Bill, because this question of public interest does confer such a degree of discretion, subject to what considerations, what provisos, what arguments, what pros, what contras, what balance sheet, is it in the public interest to give it? That to me means almost nothing.
These provisos both require to be met—about the public interest and about the service being reasonably required to meet a particular need. That again is quite extraordinarily nebulous. It, therefore, seems that the power the Minister is taking in this Bill is the power to extinguish and to snuff out, with very little need to justify his action, something that currently exists and something that I believe to be good in society and to have served us well.
If they are good, they will be in the public interest.
With respect, this is a circular argument and it is my belief that I was expressing here; it is your belief that matters, as to whether they are switched off or not. Your belief in this matter and your judgment in this matter results in actions which will either continue the clinics, or discontinue them. It is legitimate, therefore, on paragraph (b) of subsection (3) of section 3 to ask you would you please indicate—in a little more expanded way than the Bill does, or than I have heard hitherto—what you consider you will take into consideration in determining whether or not it is in the public interest to allow the clinics to continue. Would the Minister please tell us that and also tell us what criteria he would apply in making a decision that the service is — quote from line 27—"reasonably required to meet a particular need". There is a great deal of restriction, a great deal of power to extinguish something that exists and has come into existence on the basis of very much more than mere professional or, indeed, financial considerations. People have worked very hard in a very dedicated way and, in my belief, deserve well of our society. They are guaranteed no continuation. Here we are asked to legislate a method for extinguishing and the Minister when pressed on this, has not even revealed his mind to us as to whether he proposes to snuff them out now or to have them continue, or to have them continue in a changed form. In the light of what exists and the work that has been done, in the light of the normal propriety of the democratic process and, indeed, in the light of normal fairness the Minister, before he asks us for approval of this Bill, should reveal his mind on the clinics. I think that is fair. It would, perhaps, be good politics, with the holiday coming, that this Bill goes into law, gets a quick signature. Everybody is tired and you get a sunny August, and some day in the middle of August, the silly season, when nobody is alert enough to organise resistance and objection to it, the Minister uses the powers we are giving him and there go the clinics. That I would find reprehensible as a matter of procedure.
No, I will not. I give you a guarantee that subsection (4) of section 17 will not bring the Bill into operation during the month of August.
I was not quite finished. May I continue? The Minister might well do that with safety because——
I begin to think that by the time this debate is over, mine will have been the most exposed, teased out, examined mind in the business; everybody wants to probe what is in the Minister's mind. If I put down the word "and", the Seanad will, almost inevitably, say "Now, what has the Minister in mind when he puts the word ‘and' in there? There is something significant about this. There is something ominous about it. There is something Minister about it."
It is a tribute to the respect that the Minister's mind commands.
Subsection (4) is probably as generous, as straightforward a subsection dealing with this sort of situation as one could devise.
Subsection (3).
Subsection (3)?
Paragraph (b).
First of all, it does not leave it to the arbitrary, unilateral opinion of the Minister. He must be satisfied that it is in the public interest and we now know that there are a number of recent constitutional cases which make quite an issue out of this business of the Minister being satisfied. He has to have reasons for being satisfied. He can be queried in the Dáil on being satisfied and in the courts on being satisfied, so I think that is very adequate, generous wording.
Secondly, it is absolutely straightforward to say that it must be reasonably required to meet a particular need. Surely those words must mean exactly what they say. If there is a particular need—I would interpret "particular" in that context as meaning a particular need in an area, or a particular need for a category of persons, or any other definition or any other interpretation that would be appropriate to those words. I would have thought that these were normal, straightforward words and quite reasonable to deal with this situation. The Minister must be satisfied that it is in the public interest, and if there is a need there, then he gives his consent to the making available of family planning services under licence.
There are lots of words and lots of phrases that could be queried in the Seanad about the Minister giving licences, and the circumstance under which Ministers would give licences. I doubt if there could be anything more open or reasonable than the particular wording used here in paragraph (b). I am beginning to think that some Senators are so suspicious of this legislation that no matter what words I put down, no matter what phrases I use, they are subject to this inquisition and suspicion.
I would, indeed, be totally averse to semantics on this matter. I do not think it is semantics to dwell on the mandatory phrase "shall not". There are no semantics involved in, for example, the contrast between section 2, "The Minister shall provide a comprehensive natural family planning service...." and section 3 (b) "The Minister shall not give his consent.... unless...." That is not semantics; that is part of the same moral distinction which the Bill continues to make which, to quote the Minister's own words against himself, sets one form of family planning against the other. Why, for example, could not section 3 (b) be phrased otherwise? Why should it have to put an additional further constraint on the Minister not to recognise family planning except in certain circumstances? This is not a matter of semantics at all.
Following up Senator Keating's question to the Minister and the Minister's reply, I can see that it is difficult for the Minister to say, at this stage, what would be in the public interest when he comes to make this decision in the future or to say, at this stage, what kind of service might be reasonably required when this decision is in futuro. Perhaps the Minister could give an inkling of how he might come to this decision; could he tell us what his reaction would be to an application by the existing clinics for his consent under the subsection?
The only guidance I can give the Seanad is to reiterate what I have already said to Senator Hussey. For instance, if in the particular area, because of some combination of circumstances, the normal machinery laid down in this Bill—which is general practitioner/pharmacist, general practitioner prescription or authorisation to pharmacist—that is seen not to be operating in a particular area, or not to be available for some particular category of persons, then that would seem to me to be a compelling reason for the Minister for Health of the day to make some other arrangement.
The simplest other arrangement would be the provision of a family planning clinic, to licence a family planning clinic for that area, or for that category of persons. Then that family planning clinic operates under the provisions of this legislation. I do not see that there is anything complicated or difficult about that. It is a perfectly straightforward proposal. I have said a number of times that my main reliance in this area would be on the general practitioner. They are the best people to administer a family planning service for the bulk of the population. If it can be shown, or it emerges, in some area of the administration of the health services that machinery in this legislation is not meeting the needs of the people for a family planning service, then the answer is a licensed clinic, but the licensed clinic must comply with the law.
I would be happy to hear the Minister say so and, in effect, that the present clinics would not be licensed by him until he has cogent evidence that the new scheme to be provided by the Bill does not work.
Yes.
This may please Senator Cooney. It obviously does not please me. I am sorry that the Minister finds us distrustful, but we have great difficulty in uncovering his mind.
I have the most uncovered mind in Irish politics today. My mind is riddled with questions.
The Minister may think so from where he sits. From where I stand it seems extraordinarily covered up. It seems, from the Minister's most recent remarks to Senator Cooney, that he has uncovered another piece of his mind that was not previously evident to us. The clinics exist. They give a service, they have staff, they have premises, they incur costs and so on. I understood him to say just now to Senator Cooney that he would not license them until he had evidence, as Senator Cooney phrased it, that the service offered through the general practitioners was not functioning satisfactorily. I understood that when Senator Cooney drew that inference, the Minister agreed that that was correct. If that is correct, he has told us something that he had not told us before. That information, as to whether the legislation in the course of being implemented is functioning properly or not, inevitably takes some time to obtain. You cannot find that out immediately.
I have not examined that. I cannot examine that situation until I get the legislation.
I think, not alone is what the Minister says untrue, but the exact contrary is true. He can examine that situation and must and ought to and, I believe, has examined that situation.
I said I have not examined the question——
It is a presumption that he will get the legislation. If the Minister says he has not, then I accept that. Then I can only say that he should have done, and I am very surprised that he has not done. Not to think ahead into a situation that will arise when a piece of legislation is enacted seems to me to be imprudent and careless in the discharge of one's responsibility.
Here we find that he is going to set up the comprehensive service, primarily depending, as he says, on general practitioners. Then he will see if that works; and if it seems not to be working then he will give his consent to the establishment of clinics. That seems inevitably to involve a major discontinuity for the clinics. He will have to close them down. I can draw no other inference from what the Minister has said. Senator Cooney drew the same inference and I think he was pleased to draw it, but I am gravely displeased to draw it.
As for the Minister's open mind, he is now, late on in the other Chamber of this Oireachtas, in the second House, discovering a little bit of his mind that he did not previously discover. To talk about an open mind in that context seems to be an imprecise use of language. I draw the conclusion, therefore, and I ask the Minister to comment, from what he has said, that when he gets this legislation he intends to close the clinics and that he intends subsequently to examine the functioning of the other portions of the comprehensive family planning service and then he proposes, on some basis or other, to reopen some other sort of clinic after a lapse of time and after the inadequacy of his first arrangement has been demonstrated to his satisfaction. I find that a gravely disturbing and, indeed, a disgraceful situation. I ask for his comment on it.
May I ask the Minister, before he rises to answer the points that Senator Keating has mentioned, whether he had consultations with family planning clinics before he prepared this legislation?
Indeed I have. Family planning associations are one of the bodies I consulted. I told the Seanad that some time ago.
I beg the Minister's pardon. I would ask him this question then——
Please do not go over ground covered time and time again.
My second question is whether he has indicated to family planning clinics that they will close, and will have to close as the Minister has suggested, and as we have understood from what he has just said, until such time as he judges whether the new scheme proposed works.
I have not said anything of the sort. I am not prepared to deal here with hypothetical situations which Senator Keating creates himself. I am stating what is in this Bill and I am explaining it to the best of my ability. If any Senator wants to make hypotheses or opposition, I am not going to follow anybody along those lines.
I was talking about what the Minister said to Senator Keating, and what Senator Keating is saying. I understand that the Minister had consultations with family planning clinics. All of us have heard, on the radio and television, discussions with representatives from those clinics and they have certain views as to what will happen. For example, I understand that if they employ pharmacists they can continue to operate. I now understand, from what the Minister has said, that that is not the case, that it is proposed to close these clinics down. I think it is reasonable for me to ask that question——
Please do not attribute to me things that I have not said.
I understood, from what the Minister said a few moments ago to Senator Cooney, that he does not propose to give his consent under subsection (3) of this section to any person until he finds out, first of all, whether the system of family doctors providing the service works. Is that not what the Minister said? I would be grateful if the Minister would answer that question.
I have deal with all these matters ad nauseam. The Senator comes in here now at a late hour and wants to go right over all the questions that have been raised here since early morning——
There is definite confusion over what the Minister means. I understood, three moments ago, that he answered——
That is not my fault. I have indicated, time and again, clearly what is in section 3, and what is in section 3 is quite specific and straightforward. It is my duty to explain to the House what is in the section and that is what I am doing.
I do not wish to be uneasonable, but the question I have asked is a reasonable one. I understood the Minister to say to Senator Cooney that he did not propose to give consent, under section 3, to any party until he first found out whether the system that is proposed generally in the Bill, that family doctors, general practitioners should provide the service, works or not. If that is the case and he does not propose to license people, then it is clear that the family planning clinics as we know them will not continue to operate.
The question I am asking is a reasonable one. I understood the Minister to have said that he does not propose to give the consent, under section 3, to any party other than a health board, until he himself is satisfied that the other scheme proposed in this Bill works. If that is the case, it is quite clear that the family planning clinics as we now know them, will not get consent until some passage of time has occurred. Is that the case or not?
I have nothing to add.
I clearly accepted what the Minister said, that consent would not be forthcoming when we were teasing out what the public interest and being reasonably required involve. I made the point that determination of these things is in futuro and the Minister possibly could not give us hard reasons at this stage. I put it to him that, at the moment, because of the alternative scheme proposed in the Bill—practitioners and pharmaceutical chemists, the combination of the two—he would not envisage giving his consent. The Minister agreed with me that that would be so, and I was happy to hear that. I interpreted that as meaning that the present clinics would have to cease operations. That is what I clearly understood from the Minister.
I was then going on to ask the Minister the further question that if these clinics continue, as some of them have indicated they will so do, to provide these services, what would the Minister's atitude be? Would he take action to prosecute for breach of the law?
I am not prepared to deal with hypothetical cases or suppositions. I am stating what the law will be when this Bill is passed; what decisions I may take, as Minister for Health, under the legislation in regard to its implementation are matters for the future and I will be answerable to the Oireachtas for those decisions. At the moment, I am putting forward this straightforward proposal to the Oireachtas. It is to the effect that if it can be shown that in any area there is a need in the public interest for the provision of a family planning clinic, the Minister for Health may license such family planning clinic under regulations provided by him, and that that family planning clinic, if it is licensed, will have to conform to this statute, if it is passed by the Oireachtas.
Can I take it, then that what the Minister said earlier to me is so, that the Minister does not envisage, in a couple of weeks' time, when this matter becomes law, giving a licence to family planning clinics.
I am not giving any decision. I have not examined that matter at all.
I think the Minister told me that he had.
May I make another point which I think is important? The Minister has said that the main way in which the provisions of this Bill are going to be put into force is by means of the doctor/pharmacist. Until the passing of this law, many of the doctors, and certainly all of the pharmacists, of the State will have been unfamiliar with aspects of family planning which will now be made legal. This particularly applies to the doctors. I presume the pharmacists are there essentially to supply, the doctors are to advise, perhaps to help with fitting and decisions on contraceptives, as to which is the most suitable; they will not have been confronted with these decisions before. My feeling is that the service provided by doctors and pharmacists will, in many cases, not be adequate. To provide an adequate service, clinics will be necessary, where there will be special and medical personnel who specialise in family planning matters in which the average doctor in the Republic will not have specialised heretofore.
It is important to provide a service and to provide medical personnel who have expertise in this matter. This is best done by means of clinics. I would hope that a comprehensive service will be provided through the health boards. I do not think that the pharmacist/doctor arrangement will be able to provide the service with the required expertise. This I believe to be the case in other countries where family planning services are available. It is most important that these services can, and will, be supplied by our health boards. It is essential to the proper operation of any legislation that the health boards provide clinics and family planning services. Having said that, I would like to back up what other Senators have said about the present family planning clinics. They would not have grown up had there not been a need. They have supplied the need. The have done sterling work with very limited resources and I think it be a situation which would lead to considerable confrontation if the Minister decides to take a hard line against the clinics that already operate and do excellent work. However, it is clear that the clinics that do exist and operate cover a very limited area and it is important therefore that a service be provided on a nationwide basis. I can only see this happening if the health boards, as they are permitted to, get actually involved with the operation of proper family planning clinics.
I think it is extremely important that we are clear about the endangering of a service which exists in this area. Whether we approve or disapprove the service is in existence and is very relevant to this section. If we look very briefly at the two IFPA clinics in Dublin at 15 Mountjoy Square and 59 Synge Street, the services that they provide include advice about contraception, medical consultations about the pill, oral contraceptives, IUDs and diaphragms, vasectomy operations, medical consultations for clients interested in female sterilisation, counselling in fertility and sexual problems, pregnancy testing, the supply of condoms and spermicides. They make the point that they do not refer, and it is not their policy to refer patients for abortion. They train doctors, nurses and social workers and they are recognised as training centres by the joint committee on contraception at the Royal College of Obstetrics and Gynaecology and the Royal College of Practitioners. I think it is necessary for us to remind ourselves that there are clinics providing a valuable service to an enormous number of people in this city and elsewhere. The Minister is being, I think, perhaps understandably very cagey indeed about what he will say to us on this subject. It is a subject of extreme gravity and importance to a great many people of all income groups to be absolutely clear as to what exactly the plans are. We must indeed know what the future of these clinics is going to be. We must know what we might be doing to the future of these clinics by our actions. I would like to support Senators who have asked for absolute clarification on this point.
Senator Hussey has accused the Minister of being cagey in dealing with this. I do not think that quite fits the bill. The position here is that the Minister is not just forthcoming on what the position is or what he reckons the position will be once he has this legislation. The position is this: the Minister consulted with the family planning clinics before he introduced this legislation. He is not now saying to us whether or not they will continue or whether they can continue to operate legally once this Bill is passed. I think that is a reasonable question which the Minister should answer. He may have reasons for not wanting to answer it. He has not given any reasons other than to say that it is supposition, it is an hypothesis. It is none of those things. The simple reality is that those clinics are operating. The Minister recognised that they were operating when he consulted with them before he introduced his measure and he is refusing to tell the House now whether, once this Bill is passed, they can, continue to operate or whether they can, in fact, continue to operate legally. I am asking the Minister why he is refusing to answer that question. Certainly, I would like to say this, that they have come out on television and on radio, to my own knowledge, and have understood that an amendment introduced to this Bill in the Dáil was designed to enable them to continue to operate; if they had in their clinics a pharmacist, they could continue to operate and operate from now legally. The Minister is refusing to tell us now whether that is, in fact, the case.
I think that we have uncovered an appalling situation.
Again?
Yes, there are many such. I will tell the Minister why. He said, very laudably I thought, a little earlier today, that he proposed to devote energy and effort and, I understood, finances also to training people in the medical profession, pharmaceutical profession and other paramedical professions to a level of expertise in the matter of family planning. I said to myself when I heard that, that is realistic and that is a good thing because clearly with the history of legislation and the nature of medical and paramedical training in Ireland, there is a great deal of ignorance in the medical profession and in its associated professions about the whole matter of contraception. Indeed, in my personal experience there has been a serious dissemination of misinformation about contraception from some sources. The need for training is great, affirmed by the Minister and disagreed with by no one. The Minister hides behind the word "hypothetical" because the moment the Bill is law without his explicit approval of the clinics they are illegal and that is not hypothetical. That is a fact. It is a fact which is fraught with some serious possibilities of confrontation in this State which all of us wish to avoid, the clinics as much as anybody.
If the Minister assures the House that he has not considered the matter I am bound to believe him, but then I am bound to say that that seems to me a very serious deriliction of his responsibility as Minister. I find it an appalling situation which is scarcely credible.
The Senator has spent all day being appalled.
With good reason I have been appalled all day. But for his explicit assurance on the record of the House that it was so, that he had not considered what he was pleased to call that hypothetical situation, I would not have believed it possible. Apparently, it is so.
We are faced in the near future with the extinguishing of the only body of real expertise in the country who might be the source of the training that the Minister is perceptive enough to recognise as being necessary. He proposes vigorously he tells us, to establish a comprehensive family planning programme—trained from where? The prospect of smashing up the very organs that would be the source of that training, the existing clinics with their existing expertise—there is nothing hypothetical about this—is a realistic situation facing us in the near future. The record will bear out what the Minister said.
We have had opaque and ovacular statements from him all through this debate in both Houses and if we are suspicious of him it is a suspicion that he has created by that very opacity. I believed that I understood him to say so—ultimately the record will show; we cannot have instant access to the record—what Senator Cooney believed and the other Senators present believed him to say. I believe that he conveyed to the House, perhaps inadvertently, perhaps carelessly, perhaps for a moment the curtain slipped and he revealed a little bit of his mind to the Seanad, but I believe—and I have some of the words written down, I did not take them down verbatim; I wish I had done so but one does not expect to have to do that sort of thing—that he conveyed to the House that he proposed to place his main reliance on the general practitioners.
That has been clear all through. He proposed that the general practitioners would offer the comprehensive family planning service to the bulk of the population. I believe that he said if it can be shown that these services are not adequate that then he would licence the setting up of clinics.
The inescapable inference of that is that there would be a period when the only service would be the service offered by GPs and it would be tested for its adequacy or otherwise before a decision could be made as to whether to licence clinics. I believe the inevitable inference of that is that there would be a discontinuity. Even on the best possible interpretation of what he said, there would be a period when the licences would be withheld. With premises and with staff to be paid what do they do in the meantime—go and whistle, go and busk, go and disperse the expertise that they have accumulated because it was inescapably the inference that I and other Senators took from his remarks that he would have a period of discontinuity, at the very best, that he would set up the service through the GPs, that he would see if it worked and with the lack of training and with the inevitable administrative delays that we know are inescapable and nobody would ask him to—whatever we feel about this Bill, and we would not be unreasonable enough to think that he could—generate a comprehensive service through the country based on the GPs at the waving of a wand. That will take months, if not years to do. What he is telling us is—and it seems to be inescapable—that when the Bill becomes law he is not going to licence the clinics. He is going to see if the other system works and after a while if it is shown that it is not working—and to show that properly either way it is going to take at least half a year and more like two years—then he will consider the question.
Hypothetically, as he is pleased to categorise it, he will consider what is presently the hypothetical question as to whether he will licence clinics or not. I find that an appalling situation. I persist in being appalled—I am sorry if it upsets the Minister, but he is appalling—but it is the absolute opposite of open government, of frankness and a disgraceful situation in regard to ordinary democracy and in regard to people who have served the country well. I believe at this Stage of the Bill that, if the Minister wants to dissipate the suspicion that he finds around himself and which he himself has engendered, and if he wants to be open as he says, then let him tell us a little of his intentions in regard to those institutions currently existing on which this legislation impinges. If you are in the course of enacting legislation which can eliminate voluntary organs of the State which have great widespread public support, and which have served the people well, it is not unreasonable for us to ask you to tell us how this legislation will bear on them, and it is, through the Chair, unreasonable for the Minister to say that he has no further comment and that he is an open book and that he said too much and that we are suspicious.
Even if these clinics were closed down why should anybody be appalled considering the activities of some of these clinics? I learned a lot of these things from reading the Second Stage speech of Senator Robinson. It is to be found in volume 92, columns 646 and 647. She refers to a paper written by a Dr. Bowman in which the summary begins as follows:
A preliminary breakdown of the characteristics of all new attenders at a Dublin family planning clinic during the first 6 months of 1974 showed that just under half of those attending were unmarried at the time of their first visit. Of these single women, three in five plan to marry shortly and two in five had no marriage plans. The main part of the study concentrates on this latter group. A sample of 50 women was interviewed and the results provide some factual data on their family and educational background, their sexual and contraceptive behaviour——
That is a new sort of an adjective in connection with behaviour
——and their attitudes to related isnectio sues. They came mainly from upper-middle-class income groups and had a high standard of education. Although they were, almost without exception, born into Roman Catholic families, only just over a quarter were regular church attenders. All but 6 per cent were already sexually experienced at the time of their first visit....
Putting that another way, 94 per cent of those people had already fornicated. That is what we used always call that type of activity. On the next page we find another enlightening piece of news. Senator Robinson continuing her speech says, and I quote:
As I travelled to the Seanad today——
That was on 3 July
——I had my radio on. There was an interview being carried out by the programme, "Women's Day", with women who were attending a family planning clinic in Dublin yesterday. The first point that struck the interviewer was that most of the women there did not know about the provisions of this Bill.
That is the Bill now before us
——A number of them were unmarried and said if necessary they would continue their relationship even with the risk of pregnancy, were outraged and surprised with the idea that they would not be able to visit the family planning clinics and have access to contraceptives.
I think I have said enough. I think every reasonable person in this House would exhort the Minister to look very carefully into the activities of these family clinics before he would even consider licensing them.
The question that engages the attention of the House at the moment is: what is going to happen these clinics? It is quite clear from what the Minister has said and from a reading of the sections that they will not be able to continue their activities. I, again, do not look on that prospect with the foreboding or disappointment with which some of my colleagues look on it, because I was appalled when I read the figures produced by Senator Robinson in the debate as an indication of the activities carried on in these clinics. It would be in line with the Minister's policy that the services or the availability of contraceptives as they are being made available in the context of a family, as we traditionally understand that term, that he would not sanction any institutions that would seek to make available contraceptives outside the scope of that policy. I would certainly, from what the Minister said here, from the policy in the Bill, from the plain meaning of the section, anticipate a situation where these clinics will no longer be allowed to continue in operation. That is not something that I look forward to with foreboding, quite the contrary.
I find it very strange and unusual that the Minister is being so reticent about the implications of this Bill and particularly of this section for the existing family planning clinics, because undoubtedly when this Bill comes into operation they would not be able to continue as they are at present unless they get the consent of the Minister and unless they are able to import into their premises a pharmacist and create a pharmacy there.
First of all, we want to satisfy ourselves as to the position under the definition section of this Bill, of the provision of family planning service where it is confined to the advisory and instructive aspects of family planning and not the supply of or fittings of contraceptives. If the family planning clinics were to be able to continue even with that function it would appear that they would require the consent or licence of the Minister. Like the other Senators, I think it is absolutely imperative that the Minister tell the House what his intentions are in relation to the existing family planning clinics. Is he going to consent to their continuing existence, either in this advisory role in relation to family planning services or, if they are in a position to do it, if they have the possibility of meeting the capital expenditure and the overheads that would be involved in actually having a pharmacist work out of the premises, would he license them to do that?
I note that this Bill comes into effect not on its passage by this House or by both Houses and signature by the President but rather, under section 17, subsection (4), this Bill would come into operation on such day or days as by order or orders made by the Minister under the section may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions. Perhaps the Minister could begin by telling us on what day or days he envisages section 3 of the Bill coming into effect once it is passed. Does he envisage that there will be a delay before the Act itself comes into operation and if there is to be a delay for the Act itself, will there be a further delay before this section comes in? The House is entitled to know the Minister's intention in that regard.
That is the first question that he should clarify for Members of the House. The second question then is given an appreciation by us of the time scale we are talking about, what are his intentions in relation to the existing family planning clinics? It appears that the Minister has indicated that he has not adverted as yet to the question. I regret that I was not in a position to be in the House earlier today. I was involved in proceedings before the High Court and that was where my primary commitment had to be, but I find it very hard to credit that the Minister would not have considered this point because after all he is concerned about the livelihood, employment and involvement of the people in the family planning clinics. As a Minister of the Government representing the State he must be concerned baout the personal rights of the citizen and about the right to carry on a livelihood and therefore I would presume that he must have considered the matter.
He must also be concerned because of the need for the thousands of Irishwomen who use these clinics to know whether they will be able to continue to use these clinics. That is the most important question that arises in relation to this legislation. It is one to which we must know the answer before we go ahead with the Committee Stage of this Bill.
If I might just turn for a moment to the passage which Senator Cranitch read out of the study carried out by Dr. Eimer Bowman to which I referred on the Second Stage and a summary of which I put on the record of the House, I did that very deliberately because I wanted to be sure that the House had an appreciation of the service being provided by the family planning clinics because of the situation in the country. Senator Cranitch referred to the fact that 94 per cent of the single women who were visiting the clinic at the period in question were already sexually experienced. They were sexually experienced before they went to the clinics, not as a result of going to them. They were sexually experienced and were therefore taking risks of pregnancy outside marriage. They went along to the clinics to reduce or eliminate this risk of pregnancy outside marriage and presumably they got help from the clinic.
I think the question that Senator Cranitch and Senator Cooney who raised this point should ask themselves is what will happen to the single women in question who were able to go along to a family planning clinic? Let us ask ourselves this question without any moral condemnation. We may have strong views and may have different views. Certainly, in putting this point, I am not to be seen to condone any kind of behaviour. I am not remarking on that. I am not making any judgment on the behaviour. It is the fact that a number of single women have been going to the family planning clinics over the years. I have to ask Senator Cranitch does he really believe that if we pass this Bill and it becomes an Act, the sexual and moral behaviour of young people in Ireland will transform itself overnight? Does he really believe that you can legislate sexual morality in that way? Is it not far more likely that more and more young people will take more and more risks of pregnancy outside marriage, of unwanted pregnancies and then when they find themselves pregnant will be more and more tempted to go to England to get an abortion?
I also deliberately put on the record of this House the abortion figures and the rate of increase in those abortion figures. Is it not quite possible that next year and the year after when the abortion figures are placed on the records of this House that we may see a rather alarming increase and may we not then draw certain conclusions? That is one responsibility which I feel is very much before this House in our whole attitude towards the Bill, the terminology of the Bill and, in particular, the work of the family planning clinics. I think we cannot go back to the old days characterised by O'Casey to suggest that there is no prostitution in Ireland; shame on Mother Ireland that anyone would suggest it; shame on Mother Ireland that anyone would suggest that single people in this country have sexual relations. I think that we must understand ourselves and accept objectively a position that exists and the objective position that exists is that a number of single, unmarried women in this country have gone to the family planning clinics down the years, sought and have received advice and help from the clinics. A number of single women have also gone to doctors and have received help from them. The real problem and the real responsibility is to ask ourselves very seriously if this Bill is passed and we close the outlets, close the availability of advice to those young people, what will happen? I would like to put this question through the Chair to Senator Cranitch, if he wishes to come back on it: Does he really believe that overnight the 94 per cent of the women in this particular survey will change their whole moral attitudes, however much he may condemn them? I believe totally in his sincerity and I have no quarrel with him on that. We must face an objective situation however it may disturb us, however it may upset our own strong sense of the sanctity of marriage or the importance of not having young people having relationships outside marriage. That is a very different question altogether. As legislators, we must legislate for the real situation; we must be aware in legislating for the real situation the effect that legislation may have. It may look as though legislation is in some way curtailing a situation which the majority of Members of the House do not like. But is it really curtailing it or is it rather closing access to help and advice by people who are not going to change their sexual behaviour but who are going to find it much more difficult to get the kind of advice which they have been accustomed to getting?
Apart from the single women who go along to the family planning clinics and seek advice, some of them prior to marriage and some who do not intend to marry but who are having a sexual relationship and wish to get advice on contraceptives, the family planning clinics down the years have provided a service to a very large number of married women in most of our bigger cities and towns. I think the married women concerned go to those clinics for the reasons indicated in the Ballinteer survey because they get much better advice and help at those family clinics—they feel — than they would from a busy GP who is a non-specialist in the area. They get more time; they get a more supportive attitude; they get a more expertise and they go where the service is provided in the way they want it. I think it is a unique situation to consider the possibility that those tens of thousands of married women may be deprived in the next few weeks, depending on when this Bill may come into operation—we do not yet know when that may be—of what they would regard as an essential help to them in the planning of their families, very important to them in their married life, very important to them in their relations with their husband and with their children. Equally, I would like to pay tribute to the immense contribution made by the family planning clinics and made in a situation where they were acting in a very difficult climate. They tend to be blamed for sexual habits rather than to be responding to the situation as they find it. It is very important to distinguish between these two. It is not the family clinics that are encouraging sexual behaviour by people in Ireland who are not married. They, as the survey showed, very often have sexually experienced unmarried persons coming to them for the first time.
The most important question we have to ask ourselves is: What is a young man or woman who is not married but who wishes to have a sexual relationship and to have access to contraceptives, going to do? The better off will be able to travel abroad and bring a certain amount back in their luggage. They may be able to try other techniques. They may get a friendly doctor to prescribe on an individual basis, but a considerable number of people who at the moment have a possibility of getting advice and help will no longer have that possibility. Does Senator Cranitch really think that, overnight because of this Bill, they will change their whole attitude and relationships? Does he think that this is the total answer to the problem that he has identified and about which he feels very strongly? That is one point that we have to think about when we are looking at this section.
I feel that the most important factor at the moment is to get the minimum information on which this House could possibly consider this section. When is this section of the Act going to come into effect? Is the Minister going to licence or consent to the operation of the existing family planning clinics if they apply to him? It is absolutely imperative that we get this information. It is unacceptable that the Minister would not provide us with this information and it is, I must admit, hardly credible that he has not thought about it yet. If he has not thought about it yet, perhaps we should adjourn until September and give him time to think about it and come back and continue Committee Stage of this Bill.
I am not a witness in a High Court action.
I come into this debate with a great deal of hesitation but I feel that I must come in on this section. The family planning clinics have made a very significant and serious contribution in this city and elsewhere. On Second Stage I took exception to some of the statistics produced and some of the comments made. Whichever side of this debate we happen to be on, we should at least endeavour to look at the facts, and there is a vast volume of statistics relating to family planning.
Senator FitzGerald said — and I am quoting from Volume 92, No. 8: "In 1975 both clinics between them received a total of 22,940 patient visits." In column 646 of the same Official Report Senator Robinson comments on a survey which was limited to only 50 women. The use of selective statistics is most unfortunate. It obscures the good work which the family planning clinics have been doing. I do not think she has done the family planning clinics any great service by picking out this particular quotation and commenting on it here without giving the full paper, which, of course, would be very difficult. If there is any lesson to be learned from it is that it seems to bear up section 3 (b) which reads:
The Minister shall not give consent to the making available of a family planning service under this subsection unless he is satisfied that it is in the public interest to give it and that the service is reasonably required to meet a particular need.
There should be some form of licensing system.
Whether family planning clinics are to be discontinued or to be licensed at a later stage, it is clear that the Minister will keep a close eye on them. In order not to set one method of family planning against the other, it seems to me that he should also keep a close eye on the people involved exclusively in natural family planning. In that connection I am troubled about subsection (2) which, as it stands, gives carte blanche to anybody, quack or zealot to give instruction in family planning that does not involve the use of contraceptives. If the Minister wants to observe this fairness, this equity which he is so insistent on in respect of the two sides of family planning, it is only responsible that he should keep an eye on those family planning clinics which operate only under natural auspices and in methods, such as the Billings method, which require, so I am informed, considerable skill in instruction and considerable motivation on the part of the participants. I am not happy about the carte blanche nature of subsection (2).
I agree with what Senator Murphy has said with regard to the control position in relation to these matters. I would like the control to be minimal. Provided the persons are of untarnished reputation they should be left free to do what it is their business to do. What is perhaps more important for me to say, if I may comment on what Senator Cranitch said, is that one cannot pass laws on the basis that people are as one would wish them to be; that they do all these things that one would approve for oneself to do. One passes laws to deal with people as they are, whatever they may be and whatever information you have about the kind of people they are.
I am reserving myself on the final validity of sociological analyses and how much truth can be gathered from them and how satisfactory inferences can be made from them. These analyses do not help to understand the facts as they are, the trends they disclose and the way things are moving. On Senator Cranitch's point in general, this is how it is and it is horrible that it should be so. The social order in the universe would seem to be disintegrating. Social order seems to be unable to withstand the full development of the enlightenment principles. Perhaps insufficient attention was paid to the accumulated social capital that was there that was, in fact, preserving and making possible these liberties. These are our people. Our people are subject to all these influences. They make the choices that are open to them to make under these influences. I am not such a bloody fool as to think the conscience is the necessary final guardian of the senses. We know how we can fool ourselves that this is the right thing to do for one reason or another. If it is a decision which might reprove our lifestyle, for example, we do not want to reach that conclusion. Or it might be that abstinence and discipline, which we have been subjected to for what seems 200 years, was worthless.
One may want to reach the other conclusion. One does not want to prove that all that was futile. There are factors of that kind involved. I do not dismiss the supportive element in social structures.
I conclude that in Irish circumstances and with the Irish lack of confidence in itself, with the reputation that Parliament has, and the reputation that our parties have with the people, the laws are not going to be supportive of good behaviour, particularly when they reach into an area where historically in that society which I believe to be disintegrating they never did, they never should have done. We are unwise to interfere in the sexual intercourse of consenting adults, which was the phrase used by Senator Whitaker on Second Stage.
For Senator Conroy's benefit, I did not get a chance to read the second day's debate. I do not fully understand what he said. I think Senator Robinson, whatever she may have been reported as saying, could not have said that it was taken from a sample of 50 people. That was undoubtedly part of the paper. There were many important figures given in that paper which are available for publication.
I was pointing out that the Senator had quoted 22,490 people, a very large sample of people. Senator Robinson was referring to a very tiny sample.
I take that point and stand corrected if I misunderstood the Senator. Senator Robinson's remarks were relative to the sample. I do not know what the conclusions are as I did not have a chance of studying what she said. As a sample, I suppose it would be of qualitative value and perhaps no more than that. It is desirable that I put on the record what is established in the full paper which I have here. I think this would be even worse for my reputation than anything else I have done today.
We are imposing on these misled, unhappy people. Perhaps in many cases they are bona fide in their consciences. Perhaps they are entirely guiltless in their behaviour. It is not for any of us to throw stones at any of them in any way, or the stones of our laws either.
On the question of lechery, there can be lechery within marriage as well as lechery outside it. It is lechery and fornication, to use the word of Senator Cranitch, that were condemned. The spirit of lechery is predominant in the world, in a spirit which I loathe as a spirit, but humanity is unhappily being misled by covetousness. I fear that in this approach we are knocking down one idol so that we can go off to swing the incense in front of far more inflated idols in this country. I would be extremely unhappy—and I think it would be socially very wrong — if these clinics were not recognised for the work that they have done. If there is something of disrepute about any one of them, let us hear about it and let them be given an opportunity of discharging any charges that may be made against them.
Another factor affecting my approach to this matter is the widening of the gap further to breach in history the separation of such wisdom as there may be in the mere fact of age and the imparting of that to younger people. I fear for this. I do not see that, by law, we can impose on adult people—I am not talking about people who are immature psychologically, whatever about their biological maturity. I gather from the Minister's earlier assurance that there should not be any question of young people being provided with chargeable advice, or contraptions, or devices, or appliances, or whatever language you care to use to describe them, without the consent of their parents. If I plead for liberty, as I do in this field, it is to reinforce the moral responsibility of parents of families to look after their children and protect them in this world and not merely in this State. These children may not merely live in this State; they may live anywhere in this world.
What we forbid we make more attractive by forbidding. It is another reason for me for lifting any suppressive element there may be in our situation. Why should we impose the choices? What are they? Abstinence, which without the spirit of abstinence——
The Senator should relate his remarks more to the section.
I accept the Chair's reprimand. The choices seem to be a spirit of abstinence without the determination and conviction that there is a value involved in it; the bearing of an illegitimate child, or a statistic which has not been available to us since 1957; of the children being carried by women as brides as they go into marriage; abortion in England; or what can be provided for by these clinics. Under this section I think the Minister should have made up his mind. He has given some part of his mind to this problem because he has said that the regulations he will make will be in conformity with the law with regard to the carnal knowledge of females of particular ages.
It is as well to intervene to stop some Senators speaking three or four times on the same section. It is quite extraordinary that on every section and subsection we are getting a major dissertation dealing with physics, philosophy, morals and every other branch of human knowledge and learning that one would like to invoke.
Early on in this business the people who opposed the legislation were on totally opposite ends of the spectrum. That in itself, perhaps, should make some people think, but apparently it does not. At the earlier stages of the debate the suggestion was made that those who are opposing the legislation from the traditional conservative point of view were old men and that they should have better things to do than be displaying a prurient interest in contraception and legislation dealing with contraception and that whole area. But now the debate is taking a peculiar turn. Those who apparently wished to be looked on as liberal, enlightened, farseeing and avant garde are betraying an obsessional passionate detailed interest in every comma of this unfortunate Bill. I am beginning to wonder if they should have a look at their own pysches. Should they call in a psychiatrist and submit to an examination?
He is in constant attendance in my case.
The way in which every single comma, section, every paraphrase, every piece of this Bill is being minutely examined, turned over, looked at from underneath and from top to bottom, is extraordinary. I am beginning to get a bit suspicious of the real motivation.
The Minister——
People have talked at great length here on sex on Committee Stage and I do not think that I should be limited because I am endeavouring to reply to some of the extraordinary arguments that have been put forward.
Section 3 is a harmless sort of section. It is not going to turn our society upside down. Let us have a look at something that Senator Murphy said — a brilliant academic, an historian, I believe.
Is that an insult?
It could well be. He said he was anxious to ensure that I would monitor the natural family planning service in the same way as I would monitor the family planning service involving artificial contraceptives. He made the simple mistake of attributing to me something that Senator Cooney said, because I never said that I would keep a close eye on family planning services involving artificial contraceptives, or on clinics or anything else.
Surely the Senator understands that the legislation indicates that it is I who will provide a comprehensive family planning service. If I am providing a comprehensive natural family planning service, surely ipso facto I would keep an eye on the service that I myself provided. I just mention that as an indication of the sort of oppressional preoccupation of a certain group of Senators with every innocent and inoffensive provision in this Bill.
Senator Robinson uses words like "imperative" and "unacceptable". Words like that are unacceptable to me. I come here on behalf of the Government to put a Bill through this House and to try to explain it as best I can. I am very sorry if Senator Robinson, in her imperiousness, finds things unacceptable. That is a matter for the House to decide.
It is the lack of information.
I will not be browbeaten by this type of phraseology. Let me again say what this unfortunate section, which has been the subject of obsessional preoccupation for well over two or three hours, purports to do. First, it provides that the Minister can arrange for health boards to provide family planning services. Is there anything detrimental or offensive about that? Second, it purports that in so far as a natural family planning service is provided, it does not come within the licensing and regulatory provisions of the legislation because of the sort of service that it is. Then it goes on to say that the Minister may — and I thought that this would be fairly acceptable to those who are anxious about the provision of a comprehensive family planning service—license persons other than a health board to provide a family planning service, if that is deemed to be necessary and desirable in the public interest.
These are fairly straightforward provisions which help a Minister of Health to fulfil his statutory obligation to provide a comprehensive family planning services of and to make family planning services of all kinds available to those who require them. The section provides various different ways for doing this.
On the question of the family planning clinics, to which a number of Senators have referred, Senator Robinson finds it extraordinary that I have not come to a decision on these matters already. I do not think that there is anything extraordinary about it. Let us just look at this Seanad for a moment. Totally conflicting views about the family planning clinics are held in this Seanad. One Senator who spoke, as far as I could gather, is not particularly enamoured of these clinics. If they were to cease operation it would not cause him any worry. Other Senators apparently regard them as the most important and vital part of our health services today. There are other Senators here who have not spoken, but I know their views, who would gladly see these family clinics close down tomorrow morning.
Within this House there is a range of opinions about these family planning clinics. Senator Robinson wants me to prejudge the whole issue. Had I done so, and had I come in here to this Seanad and said "I have already decided that these family planning clinics are to be closed," or "I have already decided that these family planning clinics are to be kept open", I would have borne the brunt of ranting and raving that I had taken decisions before the Bill was passed and before I heard what the Seanad had to say about the matter. Surely I am entitled, at least, to hear what the Seanad has to say about any major matter affected by this Bill before coming to a decision.
The range of pejoratives we have gone through in this debate amuses me. I am sectarian, I am divisive, I am appalling. Senator Keating has spent the whole day being appalled. I wonder if there is a satiation level of "appallingness". Senator Keating should have nearly reached it by now and we are only at section 3. In any event, my position is quite clear. If the Oireachtas sees fit to pass this Bill, and I hope it will, we will have a means of meeting the situation. It may be an imperfact means but it will be a means. We will have succeeded in legislating for the first time. A number of people have tried to legislate and failed. We will have a mechanism for dealing with this social problem. The mechanism that I am providing has a number of different alternatives in it and if one proves unsatisfactory then the legislation gives me the alternative of availing of others. But pending the passing of the legislation and my review of the situation I do not intend to come to any decisions as to whether any licence will be issued for a family planning clinic or whether I will be asking health boards to establish family planning clinics as is provided for in this legislation.
Senator Robinson asked me about the coming into operation of the Bill. Section 17 (4), as I mentioned before Senator Robinson came into the House, provides for the bringing into operation of the legislation by order. I have already told-Senator Keating that I have no intention of rushing the legislation into operation in the month of August and I am not in a position to say when the legislation will be brought into operation. I can assure the House that there will be no indecent haste and no rush about it. There are all sorts of things that have to be considered, the regulations that might be made and so on. So there will be no undue precipitate haste in bringing the legislation into operation.
I would observe at the beginning that perhaps the definition of pejorative applies to what the other side says. It seems to me that "appalled" is a less pejorative word than the phrase "ranting and raving" which the Minister was pleased to apply to contributions from this side of the House; what is sauce for the gander is sauce for the goose.
I do not think I did.
I think the record will bear me out that the Minister said "ranting and raving". However, if he wishes not to apply it to us I am pleased and we will try to continue.
Earlier today I praised contributions from that side of the House and I do not think I used the phrase "ranting and raving" in relation to the Senators.
Perhaps we are only obsessed.
I accept the Minister's explanation; we are obsessed. Whether we express ourselves sharply or gently the substance of the matter does not change. The substance of the matter is that family planning clinics exist. They came into being to satisfy a need. The support for them extends far beyond the people who have actually had recourse to them for family planning advice and for contraceptives. They employ people. Paragraphs (a) and (b) of section 3 (3), in the absence of ministerial approval, will make them illegal when the Bill becomes operative. The Minister has been pressed to give some indication of when the Bill will become operative and we get clichés like "indecent haste" and so on. In other words, he declines to give us any information on that. That is a legitimate point of view but not one that is reassuring.
He says that he is going to bring into existence a comprehensive family planning service which will remain mainly on the general practitioner. If it can be shown that that is unsatisfactory then he has alternatives—and he used the word "alternatives" in his most recent contribution. He says that pending his review of the situation he has no intention of telling the House what he is going to do. It would be a matter of pleasure for Senator Cooney—although I cannot obviously speak for him with certainty and he is not here—and myself if we had misunderstood the Minister. But we both understood him to say that he proposed to introduce a service which was mainly based on the general practitioner. We both drew that inference. Senator Cooney was pleased about it, I was displeased. Perhaps it is more significant because we are on opposite sides in this. We both drew the inference that there would be a period in which the clinics would not be licensed while the Minister was bringing into existence the other part because he looked on the clinics only as an alternative; there would be a period of what I call discontinuity. We both drew that inference from what he said though we are on opposite sides.
I very much condemn that this continuity will be broken and indeed I doubt that without special benevolence from the State they could be restructured in the same way after any significant break in their existence because very valuable knowledge and expertise and very highly trained staffs would inevitably be dissipated because people have to work and have to live. Indeed, the Minister has a responsibility towards those persons as he has towards everybody else in the administration of his departmental job and he has declined to take the opportunity of clearing up those misunderstandings. He simply said nothing about them. He accused Senator Robinson of arrogance. He said he was not a witness in the High Court. He has objected to words like "imperative" and "unacceptable". It is not a matter of whether things are unacceptable to him or to us as Senators. It is a matter of whether they are acceptable to the ordinary people at large.
He may not be a witness in the High Court but he is a witness in a much more important place and he has much greater responsibilities of divulging information and explaining and amplifying and reassuring than any witness has in the High Court who is simply concerned presumably with the success of his side of the litigation or the side that he identifies with or is simply concerned to convey facts that he happens to be in possession of.
The Minister is here with the responsibility and not to be arrogant or to do things which are unacceptable and he has a responsibility especially because we know that these clinics enjoy very strong support from significant numbers of people; we know that the dangers of confrontation are very real. I do not believe anybody wants that. I am sure the people in the clinics do not want it and nobody in the House wants it. I am sure, indeed that the Minister does not want it. But none of us has the power that he has and that power is to utter reassurance and not to exacerbate the situation by this studied obscurity and vagueness. I think that what he is doing in his refusal to talk about a date, his refusal to talk about an attitude to it, his refusal to talk about what will happen on the day when the Bill becomes effective—and all these things are perfectly reasonable and normal things for us to ask about—is exacerbating the situation. He is behaving irresponsibly and derelictly in regard to his ministerial responsibility.
What are the new words?
That the Minister is irresponsible and that he is derelict in his responsibility to his ministry. We could think of plenty more if the Minister wants them. The delays here are not being engendered by us; we are repeating questions because we are not getting answers. We would like to be away as much as the Minister. We are not conveying our disgust and our boredom in our facial expressions as much as the Minister is. But the Minister has a way to get us off this section extremely quickly and easily by giving some simple, direct, interpretable answers to perfectly proper and reasonable questions. If there is a delay on this section it is because the Minister declines to do that which is in his power to do.
The Minister appears to show some irritation at the fact that Senators are paying attention to every subsection and clause of this section of the Bill. We are being accused of being obsessed in some way and that we perhaps need to consult psychologists or psychiatrists. The reason why the Senators on this side of the House are paying a great deal of attention to this section is that it may have an immediate or a less immediate impact on the livelihoods of a number of people, on the employment of a number of people and on a service available to a very large number of women here. As Senator Keating has said, we would be failing in our responsibility if we did not insist on getting adequate information in order to have an appreciation of the practical effect of this section. It has always been a role and function of our democratic process to have debates in both Houses of the Oireachtas to elicit information on the practical effect of legislation. I believe that there are a very large number of women, thousands of women here, who want us to continue to question the Minister until we can get from him a real answer, an accurate assessment of whether or not the family planning clinics are going to continue in operation without disruption. That seems to me to be a very essential point to get an answer on; it seems to be an obvious one to get an answer on before we could be asked to let the section to go through Committee Stage.
On a point of order, I want to suggest that I have made my position absolutely clear in response to these questions and the continual asking of a question to which I have replied is repetitive and not in order. I have made my position crystal clear that until the legislation is passed and I review the situation I am not making any decision as to what clinics will be licensed. That is my answer. No matter how often the question is asked, I am not going to change my answer.
As long as a Senator is offering on the section before I get an opportunity to ask is the section agreed I must allow the people offering to speak.
Before I pursue the points further I would like to refer briefly to Senator Conroy's contribution. I understood that he referred to the contribution that I made on Second Stage and, in particular, he wished to clarify the point that the sample referred to and which Dr. Eimer Bowman was dealing with was a sample of 50 people. I have not, unfortunately, had the opportunity of reading my contribution on Second Stage. Indeed, as the Minister will recall, we did try to have the Committee Stage postponed until we would have time to read and to study the debate on Second Stage.
Was that the reason?
It was, yes.
We did not see the Senator here all day.
I know. I explained already that I was involved professionally in court.
That was the real reason.
No. It was not the real reason because, in fact——
The Senator and a number of other Senators voted against having the Committee Stage today on the basis that the debate would not be available; the debate, in fact, was available.
The question is do we have ample time to look at the record of the debate?
However, having said that I am certainly grateful to Senator Conroy if he has corrected any inadvertent impression on my part that I was implying that a very significant number of the people who come to the family planning clinics are unmarried. The point that I was trying to make is—and it is a very important point and one which Senator FitzGerald has also emphasised—that we must deal with reality and that we cannot legislate for what we would like the situation to be or we feel the situation ought to be or the kind of sexual behaviour that people ought to have.
When we look at the actual subsection relating to the question of consent to the future operation of the family planning clinics Senator Keating is right to place the emphasis on the sequence there because the Minister is not, in this section, providing for continuity of the existing family planning clinics whilst he examines the situation and pending a future decision by him. As the section stands, there appears to be a very real likelihood of dislocation, a real likelihood that the family planning clinics would not be able to continue without being in breach of the section and incurring possible criminal sanctions. That is why it is not adequate for the Minister to say that once the Bill is passed he will examine the situation and see what he will do in the future because by its very nature this section would have a dislocating effect unless the Minister decided to consent to the continued operation of the family planning clinics whilst he reviewed the position in the longer term. That is the very important reason why we need fuller information in order to get from him an assessment of whether there will be dislocation in the services provided by the existing family planning clinics.
Given that these are clinics which provide a service and which employ people, those people are entitled to know whether they are going to be able to continue for an interim period pending review by the Minister or whether they are going to find themselves without the consent necessary to bring them within the provisions of this section and, therefore, have to go out of business if they are to comply with the terms of this section. That is a very important point in understanding the sequence under this section.
The section provides for a situation where the activity of the family planning clinics will be unlawful once a section comes into effect unless the Minister provides consent. Because he needs to examine the situation further and because he hears different views perhaps expressed in this House and because he knows there are different views expressed about the value of the service or the importance of it or the merits of the family planning clinics existing, the Minister could say because of that situation and because of some doubts in his mind or because the matter requires further examination that he proposes to consent on a provisional basis to the family planning clinics continuing the service in conformity with this section and that he will then examine whether the other provisions of this Bill provide the kind of comprehensive service which we wish to see established by this Bill. In other words, he could say that he will review the position when we have adequate training for general practitioners, when the natural family planning service has been established. He could say that he will then have a look at the situation and if he is satisfied that the alternative methods of providing a family planning service, which includes advice and instruction on the availability of contraceptives, is available then he may decide at that stage to revoke the consent, or that he may make it a permanent consent depending, at that stage, on his appreciation of the provisions of subsection (3) (b) that it is in the public interest to give it and that the service is reasonably required to meet a particular need. Now, if the Minister were prepared to consent on a provisional basis to the continued operation of the family planning clinics whilst he takes the steps provided for elsewhere in this Bill, that would remove some of the very real doubts and worries and criticisms on this side of the House. But he very carefully has not said that.
It would not.
It would.
No matter what I say or do, a constant stream of harassment and abuse from that side of the House continues unabated and will continue unabated because I believe the Senators over there just do not want this legislation in any shape or form and they will go on any pretext, academic or otherwise, that they can find to delay it and prevent it if possible.
I am sorry the Minister takes that attitude. I feel that, perhaps, he is allowing the situation to get on top of him a little bit. I can assure the Minister that if he is prepared to make it clear to this side of the House that he does intend to consent on a provisional basis to the continued existence of the family planning clinics which offer a service at the moment pending the establishment of the natural family planning service, pending the role of the health boards and pending the training of general practitioners and their involvement in the provision of advice in relation to family planning, that would go a considerable way to allaying a very legitimate fear of the family planning clinics. The structure of this section at the moment is one which will bring about dislocation, will create the ending of the present services offered by the family planning clinics unless the Minister is to consent.
Like Senator Keating I note the way in which the Minister expressed himself. He said that if this legislation is passed we will have a means of meeting the situation, we will have a mechanism; the Minister will have a number of different alternatives. Clearly the alternative which he is favouring is the alternative of having the provision of family planning services provided mainly through the GP operating under the provisions of the Bill.
The real worry and problem that the Minister raises in his less than full replies at this stage is that he appears to envisage a period when the existing family planning clinics will not be able to operate under the terms of the section, when he will begin to introduce the other provisions of the Act. It is only at some future time—and who knows when that future time will be—that he will be persuaded of a need and respond to that need by giving consent and allowing family planning clinics to be established.
The problems that would arise would be problems of the financial position of the existing clinics. Obviously they could not remain in some state of waiting while the Minister reviewed the situation and then perhaps in some months or in some years decided that there was a need that was not being fulfilled under the terms of the Bill and that it was in the public interest and that he would consent to these clinics. The present likelihood appears to be that the staff of these clinics will disband, that the premises will be sold, that the service will not be able to be offered in the future.
The Minister has used terms like innocent and innocuous. I would have to say that, if we on this side of the House are getting an accurate picture, the family planning clinics will not be able to continue; they will not get consent even for an advisory service and they will have to close down. There is nothing innocent or innocuous about that; it is a devastating blow to the family planning clinics and it is unlikely that the clinics would be able to keep themselves in some state of suspension and then provide a service again in the future if the Minister became satisfied about the need.
Could the Minister give us some indication of how he will go about assessing the need for a family planning service according to the particular provisions of subsection 3 (b) that it is in the public interest to give it and that the service is reasonably required to meet a particular need? For example, would he be impressed if thousands of women were to march in the streets of the cities and say that they need this kind of service before the Bill comes into effect? Would that be the kind of evidence of a need that the Minister would look for? Will he engage in a round of consultations with different interest groups, with different professional opinion, on the matter? How does he intend to go about assessing the criteria set out there? Perhaps if he could give us an indication of that it would be helpful to us at this stage.
There is one point I would like to clarify in relation to Senator Robinson's contribution. She has referred frequently to this side of the House. But on this side of the House Senator Cooney has said that he wants reassurance from the Minister that he will close the clinics. On the other hand, with regard to other Members, they want the assurance that he will keep the clinics open. I would like more information too but I can sympathise a little with a situation we have in that paragraph (b). It is obviously an enabling section. It will enable the Minister and his Department to license family planning clinics where they are needed in the public interest. I do not want to prolong this debate any further. Senator Robinson was away all morning on important business and I have important business too and I am not that keen on being pinned down here for the next three or four days with the reiteration of the same points over and over again. There is no concensus on this side of the House and I am not sure that I do not sympathise with the Minister. He is probably kicking a bit for touch. I would like something more explicit.
The Senator must be sure or not of whether he sympathises with the Minister.
My feelings towards both the Minister and my colleagues have changed very radically from hour to hour as this debate has gone on.
We will have to time our voting very carefully.
I want to make that point. There is no consensus on this side of the House. If the Minister says one thing he will be chopped by Senator Cooney; if he says another thing he will be chopped by Senator Robinson.
I will remain bloody but unbowed.
I want to be clear about this usage, namely, "this side of the House" because there are many of us on this side of the House with different views.
I want to offer a suggestion that might get us off this section. I want to assure the Minister also that nobody wishes him to bow. We want reasonable answers to legitimate questions. But it seems to me that he has a mechanism of reassuring us within the existing legislation if he wants to use it. He may be feeling embattled, he may be feeling bloody but unbowed—and we could quote other bits of the poem going on in the same mood—but he must admit that there is a real difficulty which arises because in subsection 3 (b), for reasons I do not understand but it is there, the parliamentary draftsmen chose to express the thing in a negative way by saying that the Minister shall not do such and such, namely give consent unless (a) and (b) are met with. It could equally well have been drafted the Minister shall give his consent unless he is satisfied that it is not in the public interest and that the service is not reasonably required to meet a particular need.
I would hesitate to change that and have to wait until October to bring it back to the Dáil.
Yes. If that is the case we are further on than I thought.
I wanted to suggest a mechanism to the Minister. There is a real difficulty because he cannot introduce and then assess the quality of his general practitioner scheme unless some time has elapsed. But during that period of time when it is being established and assessed if he switches off the clinics then he knows that, in practice, he cannot switch them on again. There is a real problem which comes first. It is a genuine problem. I suggest a way out and if the Minister gave me and the House some reassurance on this, I would be very pleased. The way out is contained in the last sentences of the Bill on page 9 in section 17 (4). It states: "and different days may be so fixed for different purposes and different provisions". Let us say the Bill becomes law in a few months and immediately the Minister brings section 3 (1) and (2) into action. He gives us the undertaking that he will not enforce subsection (3), thereby outlawing existing clinics unless he gives them his approval, for a period of two years. Let them continue for two years. Let the Minister set up his parallel service based on the GPs. The Minister has not defined at all "public interest" or "service ... reasonably required" but the inadequacy has been pointed out and is clear. He could still start setting up the health centre general practitioner service now. He could have a two-year pause in the outlawing of the clinics.
That would genuinely solve it because the genuine pool of real knowledge and expertise would remain in the clinics and the threat would be temporarily lifted. If it were seen that the other mechanisms that he proposes were totally and overwhelmingly satisfactory nobody except lunatics would go to the wall for the clinics. There would be time for the people to get other jobs. There would be time to do the thing in a humane and civilised way and to avail of their expertise. That could be done within the Bill. If the Minister assures us that that was his intention, it would overcome a lot of my worries and my doubts. The difficulty is real. The mechanism for resolving it is there. If, on the other hand, after two years there were still the very clearly articulated demands, the expression of public need, then it would be reasonable and prudent to give them the formal approval to continue. That formal approval would only be required when: "This Act shall come into operation on such day or days as by order or orders made by the Minister under this section, may be fixed therefor...." There is a way out if the Minister wants it. Perhaps he could give us some reassurance.
It is proposed to break for tea?
No, it is not proposed to rise.
Break Senators instead.
I would like to join with Senator Keating in seeking a reasonable assurance that there will not be dislocation in the immediate future, which we fear, of the services being provided by the family planning clinics. I was very heartened to hear the Minister say that he would be prepared to accept an amendment of subsection (3) (b) turning the negative there into a positive so that it would read: "The Minister shall give his consent to the making available of a family planning service under this subsection unless he is satisfied that it is not in the public interest to give it and that the service is not reasonably required to meet a particular need." He went on to say that the difficulty would be that he would have to go back to the Dáil. I understand the Dáil is still sitting and surely this is not a difficulty when it might——
I did not say anything about accepting the amendment at all.
The Minister said he would be prepared to accept that amendment.
I said I would not have the slightest hesitation in changing that wording except that it involved accepting an amendment and going back to the Dáil. I do not think it is worth that. Its like tweedle-dum and tweedledee, both sets of words mean the same thing.
I do not think that is the case.
That may be the Senator's opinion but it is not mine.
I propose to put down an amendment for Report Stage along those lines. In order to achieve the position Senator Keating was talking about it would be desirable to have another subsection dealing with the question of the provisional consent to the family planning clinics so that we would know that they would carry on until the Minister had time to review the position and consider the alternatives and whether the system he was establishing provided a need. We are agreed on all sides of the House, even Senator Martin I hope will not take exception, that there is a need to provide a comprehensive service for family planning. This was certainly implicit in the Supreme Court judgment in the McGee case that there was a right within——
It has been accepted by the House by the acceptance of Second Stage.
This Bill has passed Second Stage. There are a number of different views as to the extent of the family planning service which will be provided under the Bill. This is one of our problems, to know the precise contours of the Bill.
With regard to the phrases "public interest" and "the service is reasonably required to meet a particular need," I am trying to establish what these words mean. We know and accept, as the Minister says by the fact that this Bill received a Second Reading in this House, that there is an identification of the need for the provision of family planning services. This is relevant to the immediate situation if family planning clinics do not continue to provide a service. It reinforces the point made by Senator Keating that we do not have an established network or alternative way of providing family planning services for those who need the advice and those who seek it.
We do not have a history of training and of emphasis either in our medical schools or in the medical profession on ensuring that practitioners are fully equipped to provide family planning service, instruction and a service of this sort. We do not have that alternative or expertise throughout the community although we have individual doctors who are expert and trained and do provide an excellent service in this area. What is very worrying about the present structure is that, by appearing to provide for a dislocation of the present system unless the Minister positively consents and does so because he is satisfied on the two criteria that it is in the public interest and that there is a need.
We have the possibility that the passing of this Bill, although there may be an intention to provide a family planning service, will not physically be able to achieve that over a considerable time, the time it will take to build up the expertise to have the necessary training, facilities, and so on.
This is the reason why it would be desirable and significant to change subsection (3) (b) to remove the negative import of it as it stands at the moment from "the Minister shall not give his consent to the making available of a family planning service" to "the Minister shall give his consent to the making available of a family planning service under the subsection unless he is satisfied that it is not in the public interest." The reason why it seems to be a much more logical and coherent approach to the problem is that this would allow charges that activity was not in the public interest to be made. It would allow people to say that certain activities or provision of services of a family planning clinic or certain family planning clinics was not in the public interest and it would allow the family planning clinic in question to respond reasonably to those charges and meet the criticisms and it will allow the Minister to make an assessment.
As the subsection stands at present, the onus of proof will be on the family planning clinics to satisfy the Minister on a two-fold test, which is not a clear test. We do not define public interest and we do not define "reasonably required to meet a particular need" and we do not define the need. It is very hard to see how family planning clinics can satisfy this test under the present situation without which they cannot continue to operate any kind of family planning service. When there is this much doubt about the precise scope of provisions and difference of view as to either the importance, validity or helpfulness of the service provided by the family planning clinics, the emphasis should be on maintaining the status quo until we have more information about the public interest and the need. This section would not maintain the status quo and would not even maintain a status quo that the family planning clinics could remain open but could only offer an advisory and counselling service. This section would place the emphasis on dislocation unless the family planning clinics were able to discharge a very difficult onus of proof of satisfying the Minister of this double criteria: that it is in the public interest that he consent to them offering a family planning service and that it is reasonably required to meet a particular need.
I have rarely experienced the difficulties that I have in relation to this Bill in general and this section. Normally one has a fair idea of what the effect of a section or certain clauses in a section will be. We do not have this difficulty of operating in the dark and being unaware of what the practical effect will be the day this section comes into effect, the month after and the year after. We have some idea of what we are legislating for.
The terrible truth in relation to this section is that, despite our genuine efforts on this side to elicit information and clarify the contours of the section, we are not in a position to know whether the family planning clinics will continue in operation. We must now assume that there will be at least some period of dislocation. By now the Minister would have given us an assurance that there would not be a period of dislocation if that was his intention in relation to it. That would be the normal situation. After all, there are livelihoods at stake and the service which many women feel is essential to them. I would find it hard to believe the Minister would not give that reassurance if there was not going to be a dislocation. Why cause anxiety, problems and tension for people if it is not necessary? Undoubtedly, there will be anxiety, problems and tension for a considerable number of people if there is to be dislocation and if the family planning clinics are not able to continue in operation. We have, under the present framework of this section, to draw that conclusion.
There should be the capacity for a reasonable meeting of the two views on the matter. We are not saying that there will be a change of view by Senator Keating and myself, leaving Senator Martin out of this for a moment, and the Minister on all the other sections of the Bill. We are concerned to ensure that there will not be the sudden terminating of the services provided by the family planning clinics, of the jobs of the people involved, of the work that they have done and of the service they offer to the thousands of women who visit those clinics. We are very concerned that this does not happen suddenly sometime in the month of August or whenever the Minister feels that he is no longer operating in indecent haste.
The use of the words "indecent haste" is interesting in this context. Is the Minister saying that he is not going to move with indecent haste in bringing the situation into effect because of the dislocation, the termination of jobs and the closing of a particular service?
Senator Keating asked for an assurance that the Bill would not be brought in in August. I gave him that assurance. Now the Senator is taking this and turning it upside down and examining it. There is something very significant and sinister in it. I just cannot win. If I try to help the Senators in the Labour Party it is a cause for further disturbance. What is wrong with my saying the Bill will not be brought in in indecent haste? Is that not a simple, normal, parliamentary term?
The Minister has not helped us very much. I do not want to have any more confrontation than we need have. I am not trying to irritate the Minister just for the sake of irritation. I am genuinely trying to understand this section and its implications. It does not help me very much to know that it will not be July or August but it may very well be September. I do not know what is going to happen to the family planning clinics.
The Senator is not the Minister. The Senator tried to bring in her own Bill but nobody accepted it. This is my Bill and I will decide when it comes in. I am not answerable to Senator Robinson.
I accept that the Minister has both the discretion——
If the Senator wishes to run the whole show, get on with it. I am trying to do my job too.
It must have been a long day, Minister. The trouble is that saying the Bill will not be brought in during August does not get over the very serious dilemma and difficulty of knowing whether when the Bill does come into effect, say 1 September or 10 September or whatever date it may be, it will terminate the existence of the family planning clinics. This is the first time in my experience after ten years in the House that we have not known whether a section of a Bill that we are passing will terminate the livelihood of people and terminate a service to members of the public.
How many jobs are involved?
That is repetition.
I never said that before.
The Chair feels that it is repetition.
It is the first time in my experience in the Seanad that we have a section of a Bill going through which may or may not terminate the livelihood and employment of people.
Every Finance Bill does exactly the same year after year. Practically all legislation has similar implications.
Not directly related to the jobs and employment of people. There are people sitting in family planning clinics who do not know whether at the end of August they will be there any more. That is fairly brutal. There are a great many women who do not know where they are going to go now for the services that they have been going to the clinics for.
It looks as if we will at the end of August.
What did the women of Ireland do in the years gone by?
We must distinguish between what we would like people's conduct to be and what it is in reality and the decisions taken by adult members of this community for themselves, whether they do it in the context of marriage or whether they do it as adults in their relationship with others. A lot of the problem would be removed if the situation were that the Minister as Minister for Health bringing in a family planning Bill, as he says himself successfully getting it through the Houses of the Oireachtas, were to say, "I will ensure that there is provision of a family planning service. I will ensure that there is a natural family planning service and I will ensure that the health boards are involved and that the general practitioner will be the key operator within this service as part of the overall health service. I will then review the situation and if, when all that is under way and we have the physical proof and results of it, I decide there is no need for the further continued services being provided by the family planning clinics and am satisfied that they do not provide the kind of family planning service that I, as Minister for Health, wish to see I will terminate consent to their continued operation as they have been operating." At least we would have the necessary bridging in relation to the provision of family planning services. We are not going to get that.
What really interests me is that so few of the women who go along to the family planning clinics realise that, come the month of September, they may find the doors shut. They may then start a process of bringing home a sense of need and a public interest. We have not defined in this section what we mean by need and public interest. We do not know who will be able to influence the Minister or how he will be satisfied that there is public need. One way of being satisfied would be to look at the numbers of people who go along for help to family planning clinics and look at the results of surveys such as the Ballinteer survey and others and carry out a survey in relation to that.
The Minister, when asked to be more specific, said that he did not want to show his hand in the matter because he wanted to listen to the views of the House. It is a unique example of legislation which may or may not have a devastating effect on people's employment and future in a particular activity and on a service provided to a considerable number of women which they regard as essential in their married life and in their relations.
It is unnecessarily harsh to create worry and tension if it is not necessary to do so. If the Minister does not intend to refuse to allow the family planning clinics to operate at least until he has had time to have an overall assessment of the position it seems hard to understand why he would leave them in continued doubt about their future. I hope we can come back to this, perhaps in a more friendly way, at Report Stage and consider an amendment providing for the provisional consent to the continued existence of existing family planning clinics until the Minister has had an opportunity of assessing the public interest and needs and until we see the functioning of the provisions of the Bill which relate to the provision of a family planning service by other methods. That is the way in which one should structure the section. Surely it is a question of continuing the status quo which may be criticised but for which there is clearly at present a substantial need, if need means do members of the public go there, do married women in Ireland go there, do people who want that kind of advice go there? In present circumstances if need is to be weighed in the practical sense of seeing whether the service is needed, there can be little doubt that family planning clinics provide the service because that service is needed, they have mushroomed and spread to other cities, having first established in Dublin, because the service is needed. They have the support of the women who go along to them.
On Report Stage, we can come back to this. Perhaps the Minister will have had an opportunity to reflect on it. I do not think the Minister would have any difficulty going back to the Dáil with some amendments to this section which would provide for this situation. This is not something on which one would envisage difficulty. The Government have the comfort of a substantial majority even if they cannot rely on all their troops to go through the lobby on this measure. The Minister's irritation at the prospect of going back to the Dáil with this Bill as amended by the Seanad should not outweigh a concern for the apprehensions of a considerable number of people about their livelihood and apprehensions about access to a service of a large number of women. We all need time on this issue to see what the situation will be. It may be difficult.
This Bill is now in its seventh month.
An elephant must bear an elephant's load; that is an old Indian proverb.
Would the Minister like to say how long it is in this House? I think it is in its third day, is that right? That is hardly excessive.
It has been a full day on three sections and that is outrageous for a piece of legislation.
On the contrary, this legislation——
The Senator is completely changing her ground now. It is now the employment of the people in these clinics. I have not heard this before. It is a totally new argument.
Thank you, Minister, because a little while ago you were about to accuse me of repetition.
The Senator is repeating that argument ad nauseam. It is a new argument today. We have not heard it before in the whole discussion on this Bill. We have not heard one word about it.
I am delighted to have afforded the Minister new thought on the matter. Perhaps now that he is thinking about the employment of people and their jobs he may be prepared——
I have heard this once, twice or three times in the last half an hour.
The Senator did not tell us how many would go on the live register if these places were closed down.
Pray, continue.
The responsibility that we have in this House is to assess the implications of this measure. It may take us more time than the Minister wants to spend on it. The Minister may feel that he has more important or more constructive things to do. I do not think we can be accused of dwelling at more length than is necessary on this Bill. As Senator Keating said, if the Minister gave us a little more information, and was more direct and clear in his responses, it would not be necessary for us to tease out at more tortuous length the meaning of the provisions of the Bill. What form will the consent under this section take? Will it be in the form of licence or how does the Minister envisage the consent operating?
I have only been two years in the Seanad and, therefore, if I am out of order please tell me. Although I have only been two years I have sat here regularly and though I have not said very much, I have listened with great care to the debates. I have never heard a Minister queried so often in a different manner each time about a question which he has already answered twice, if not thrice. Is that what we are here for in the Seanad—to go on pounding and saying the same thing in a different way to the Minister when he has already answered the question?
It seems to be a question of the order of the Chair.
Is the section agreed?
I must disagree with Senator Goulding that the Minister has answered. That is the whole point, with respect. Had he answered, had he taken any thought to reassure us on the question of what he means by "in the public interest", any thought to reassure us on how one defines the services reasonably required, we could have been on to other sections. He has had a specific question from Senator Robinson now about the form of the Ministerial Commission. He had a specific suggestion from me, some time ago, in regard to his powers under subsection (4), section 17. None of these things is deemed worthy of being noted or replied to. The Cathaoirleach — and I am not questioning his action — asks if the essential section is agreed to, without the Minister making any effort to rise in his place to deal with those specific questions. It is not as if it happened today. Of course we are mistrustful. If people choose, now that they are available, to acquaint themselves with the debate on Second Stage they will see that, over and over and over, the Minister's way out of something uncomfortable or awkward that was raised on Second Stage was to pretend it did not happen. It was not mentioned in his reply. His reply is quite extraordinarily patchy. My reaction to reading the Official Report, and my reaction as he summed up on Second Stage was "well, if that is the way he feels, then we will have to know a little more and will have to go into it more carefully". We did not engender this situation of suspicion. We responded to completely inadequate replies and to the total ignoring, in the Minister's Second Stage reply, of very major points that were made. If anyone doubts the truth of that allegation, let him read the Second Stage speeches and consider the Minister's replies. The Minister said the things he wanted to say; he put up cockshots for the pleasure of knocking them down and attributed points of view to unspecified people, without any reference to where they had expressed them in their speeches. He engendered the suspicion, not us.
This is not in order.
I think it would be courteous, and it would hasten the proceedings, if the Minister would offer some sort of reply, however inadequate, even to say "No" or "I decline to reply".
To which questions?
To two questions. The Minister has not been listening to me. Senator Robinson's question was to give some indication of the form of the ministerial approval that is necessary under subsection (3), and my question——
Does the Senator really think that that is a serious question? Does he not know that that is normal, everyday parliamentary language and a simple letter would comply with ministerial consent as in any other ordinary piece of legislation? If that is the sort of query I am accused of upsetting the Senators by not answering, well, then——
The second question related to subsection (4) of section 17, which says "This Act shall come into operation on such day or days as by order or orders made by the Minister under this section, may be fixed therefore..." That offered a mechanism which I put forward with goodwill, to try to solve a problem which I thought was a real problem.
The Senator suggested that under that section I should give an assurance, an assurance which should satisfy him. I am not going to give that assurance and I am not being intransigent by not giving an assurance that would satisfy the Senator but would seriously disturb many other Senators in this House. The Senator is quite right in saying that some such assurance by me would satisfy him; that does not mean that I should give it.
I did not suggest that the Minister's purpose would be to satisfy me. I realise that is entirely on his order of priorities and do not see any reason why it should. I suggested that it was a way of overcoming genuine difficulty. The Minister, now, has simply said that he has no intention of giving that undertaking. He made no comment on the suggestion; he made no comment as to any using of subsection (4) of section 17 to differentiate in time. He simply said nothing at all about what was a serious and practical suggestion, aimed at overcoming a real difficulty.
The Senator knows I answered him. I gave him an assurance.
I do not choose to yield on this occasion. I have yielded, and have treated the Minister courteously, but I do not want to lose my train of thought. The Minister, in fact, was not required to give me an assurance and if he reads the record on what I said, he will find out that that is true. What I was urging him to do was to indicate some of his mind on using the mechanisms that actually exist in the Bill to overcome a problem which is a real problem. He chooses to respond to that, first by saying nothing at all and then by saying that I was seeking an assurance. Both of those are evasive. Why not have taken a reasonable suggestion——
I genuinely thought the Senator was seeking an assurance and I am quite certain that the other Senators in the House are of the same opinion. I give the Senator an assurance.
It is not a matter of giving me an assurance. I said was it not a mechanism for solving the problem, that the sections that we are discussing, subsection (3), paragraphs (a) and (b), would be brought into operation at a considerably later date than section 3.
The Senator said two years.
I said two years and it was up to the Minister, if he thought that was too long, to say "That is too long, but at least the proposition is thinkable". It was up to him——
I did not get a chance to get in, since you made that comment. Senator Robinson has been speaking since.
I am sorry. I simply cannot accept that particular explanation.
The Senator will accept nothing that I say.
No, this is a matter of record and accuracy. The Cathaoirleach will agree that he asked, after a reasonable and proper pause which he normally observes, whether the section was agreed; during that reasonable and proper pause, after Senator Robinson had finished and after I had finished, the Minister sat mute and did not try to get in. He had the normal opportunity to get in and did not avail of it. To say that he could not get in is simply not in accordance with the facts and cannot be permitted to pass, because the record shows otherwise.
I was not asking for an assurance from the Minister in any personal sense. I was offering a suggestion which was in the Bill, that a mechanism existed by which the difficulty could be overcome. I thought that a reasonable and courteous response to my suggestion would have served to hurry things up and to dispel the suspicion and tension that has arisen in this debate. Instead of that, I simply got silence. I was ignored through the pause, before the Cathaoirleach asked if the section was agreed. It is that sort of discourtesy that is creating a lot of the difficulty. The other question I asked is, would the Minister like to comment on the mechanism which exists in the Bill, which I have pointed out, by which the real difficulty might be overcome, whereby the continuity of the clinics could be guaranteed for long enough for him to bring his other schemes into operation and to measure their validity? That is totally reasonable and practical and it deserves a reasonable and courteous answer.
The Senators have used practically every possible pejorative appellation they can and attributed it to me in the course of this discussion and then Senator Keating has the audacity to talk about courtesy. No matter what reply I give here, it is turned back on me. It is regarded as deceptive, or evasive, or divisive, or sectarian, or something else.
I am quite certain that what Senator Keating was asking was an assurance from me that would reassure him. This was my understanding of it. I am equally certain that any assurance I have given about delay in bringing this Bill into operation for a period of two years, which is exactly what he specified, would seriously disturb other Senators. I am well aware of the flexibility in the different sections; I mentioned them already. I drew the attention of the House to what is provided in section 17, that it does give scope to bring the Act into operation when I am satisfied that it is beneficial and it is in order to bring it in, and when whatever reviews or assessments I need to make have been made.
On a previous query from Senator Keating I gave him an assurance that I was not going to rush this Bill through. I thought that was a reasonable, courteous assurance. Senator Robinson takes that up and turns it back on me and decides that there is something sinister or disreputable about that assurance given to Senator Keating. I have no intention of rushing this Bill. I have taken a long time over this Bill already, a long wearisome, drawn-out, painstaking time to get this Bill this far. I have no intention of suddenly bringing it into operation in some sort of unpremeditated, erratic fashion. I am going to take my time bringing it into operation, making sure that it fulfils the purpose I intend it to, when it does come into operation.
Senator Keating cannot accuse me of being intransigent and discourteous or any of the other terms that he is using so frequently here today because I do not give him the answers he wants. I could be much more accommodating if I answered Senator Keating and Senator Robinson the way they want me to answer, but I am not going to do that. I know what my position on this legislation is and I have reiterated it. Asking the same questions over and over again is not going to change my position.
The Minister is nearly there. He should not lose his "cool".
At the risk of being misunderstood, I would like to make a suggestion. This House normally breaks for a tea break. I think that, in the circumstances, it would be a good idea to have a break. The Minister appears to be suffering under considerable strain and irritation.
The only thing I am suffering from is serious aggravation and tedious repetition.
The Minister has again made it clear that he is not going to rush this Bill through. Would a break for even half an hour make any difference?
The Chair already mentioned that and it was not agreed to.
Is it possible to suggest again that we might break for a half an hour? Would that be acceptable?
On a point of order, I understood that the suggestion of Senator Ryan was that we continue, not that we break. The suggestion now made by Senator Robinson is the opposite one to the one made by Senator Ryan.
Yes, that is correct.
Clearly, that suggestion offered in good faith is not one that commends itself to the Minister. I am glad to have been able to elicit the information that by the word "consent" in this section, the Minister would be satisfied that that means a simple letter. Presumably, a simple letter would be a letter in response to a letter written by one of the family planning clinics, seeking the consent, and hoping to get a simple letter in response giving that consent. However, the consent will have to be in accordance with regulations for the purpose of this subsection.
My next question to the Minister is, does he have draft regulations for the purposes of this section and is it possible for these regulations to come into effect in such a way as to enable a letter of consent to be given?
The answer is no.
He does not have any draft regulation?
No.
If the Minister does not have draft regulations at the moment, will he have them ready before the section comes into effect? If the section comes into effect, then it has an immediate dislocating effect.
Senator Keating has accused me of not answering two questions. Now, there is another. Is there any end to the discussion on this section?
With respect, I do not think that it can be expected that Senators will pass this section without understanding it. With all due regard to the amount of time the Minister has spent on this section in the House, I do not think we have yet got the kind of answers that enable us to know the impact of the section.
You asked me, were there draft regulations made under this section.
——whether you have draft regulations prepared and you said no, am I correct?
Yes.
I want to try to ascertain whether the Minister will be in a position to entertain applications for consent from the existing family planning clinics and in a position — not necessarily that he would consent, but that he could consent under this section in such a way as not to have a period of dislocation if he chose to consent to their continuing their——
I cannot answer the question, I do not understand it.
I cannot blame the Minister. It is a slightly complex question. We will have to pursue it until we understand one another because it is a very important question. We are talking about the consent to operate a family planning service involving advice about contraceptives. We are talking about the necessity for anybody doing that to have the consent of the Minister, otherwise it will be unlawful and they may commit criminal offences. The Minister has clarified the nature of the consent; it can be just a letter from him. What I want to try to ascertain is, since this letter must be in accordance with regulations for the purposes of the subsection, will he ensure that those regulations will be in effect, so that if he has on his desk an application from every family planning clinic operating at the moment, can he clarify for the House whether he could, if he chooses to, consent in accordance with those regulations before the time this section comes into effect, so that there would be no dislocation? If the section comes into effect, it has an immediate impact. From that moment, the family planning clinics cannot operate lawfully unless they have a consent. In anticipation of this, it is to be presumed that the family planning clinics would write to the Minister and seek the consent. Perhaps the Minister could tell us has he had any letters from family planning clinics seeking consent under this section?
I have nothing more to add. I have said all I can say about this. The Senator is now bringing in all types of hypothetical suppositions.
This is not hypothetical. It is a real situation. It is certainly very real for the family planning clinics. They are entitled to know and, indeed, must know what their position is.
It is entirely hypothetical, because the section has not, as yet, been passed. Provided they write, asking permission.
I do not agree. If you see that the impact of a section could be to disrupt your livelihood and prevent you from continuing to offer the service you were continuing, you might very well anticipate that by writing to the Minister, in the course of the Bill being discussed in the Dáil and Seanad, and say, "We note that if this section is passed, it will require your consent for us to continue in operation. May we please have that consent? May we have it in time so that there will be no dislocation?". If the structure was one where there would not be any disruption or dislocation in the status quo, or any problem for those operating the family planning clinic, then they would not have to try to anticipate the situation. It is perfectly understandable, from their point of view, that they do not want to have any gap, as far as they are concerned, in the services that they provide. I say this to Senator Conroy as somebody who obviously does value the work done by the family planning clinics.
They have already said they are going to break the law. What is the Senator worrying about?
I have not said they are going to break the law.
They have said this. What is the Senator worrying about?
Despite the Minister's attempts to put a certain colour on what I said, I would have a very serious concern not to see people breaking the law.
They publicly stated they were going to ignore the law.
Perhaps at this stage we could help them. Perhaps we could show them a way to avoid the necessity to be in breach of the law. Perhaps if they felt any security in being able to pursue a lawful means of remaining in operation, this would avoid a very undesirable confrontation.
If they make a declaration that they will abide by the law that would be a different situation.
They have been breaking the law for the past few years and have not been prosecuted.
Is the Minister implying that this would be a factor that he would bear in mind in relation to consent?
I am not making any more comment on section 3 because I am now satisfied, in my own mind, that Senator Robinson is filibustering.
I am not filibustering at all. I have no intention of filibustering. I am still trying to clarify the terms of this section.
Senator Keating asked me, first of all, would I answer two questions. I answered them. Now, we have a whole new set of questions. If I answer them, we will have another set of questions.
With respect, I had to point out that the Minister had declined an opportunity given to him by Senator Robinson for answering them, and I had to reiterate them in order to obtain those answers, unsatisfactory as they are.
I gathered from the Senator that they were the last two questions. I had that foolish, innocent impression that they were the last two questions on section 3. But obviously the Senators want to keep section 3 going for the rest of the evening.
No. There is no intention to filibuster. There is no intention to draw this out to any unnecessary length. The Minister is really the victim of his own stubborness in remaining in the House, without a break which might have let things fall back into proportion, if I may say so.
The problem with trying to ascertain the position for the existing family planning clinics if they seek a consent is that unless the Minister has made the regulations under subsection (3) (a), so that the consent can be in accordance with those regulations, then it does not appear that it would be possible to consent to a family planning clinic making available a family planning service, without dislocation, under the present situation. For example, if this Bill is passed in the next few days or even weeks and if the family planning clinics are aware that the Minister has indicated that the Act will not come into effect during August then this gives them an obvious time to make an application, if they wish, to the Minister for consent under the section. Between the time this Bill is passed, but before this section comes into effect, will the Minister have the necessary regulations made in order to enable the statutory consent, as set out here, to be given — if he chooses to give it — in such a way that there would not be a dislocation and termination of the lawful activity of the clinics?
I believe that would also help to defuse what appears to be a confrontation building up between the existing family planning clinics and the Minister on this issue. The Minister has referred to this apparent confrontation; I am sure he does not want to see that happen; none of us does. A little more time and goodwill in trying to clarify the circumstances surrounding the giving of the consent might help to defuse any possible confrontation. It might help to clarify the situation for those involved.
We now know that there will be at least the month of August during which it might be possible to have both time to apply and time to get the necessary consent, without any dislocation of the work of the existing family planning clinics, if the Minister intends to consent to their future operation. The more I have heard of this debate on Second Stage and Committee Stage, the more pessimistic I am about this possibility. However, it may be that we are taking the wrong impression from what the Minister is saying. Perhaps he does still have some intention of granting a consent to the existing family planning clinics and we are wrong to take the other impression from him.
Apart from the need for there to be regulations in existence for the Minister to issue this statutory consent under the section, he also has to satisfy himself that it is in the public interest and that it is reasonably required to meet a particular need. The word "particular" there seems to suggest that the need would be a need identified in a particular locality, or in a particular way. This is a serious question, in good faith.
Is the Minister saying there that it will only be if, for example, certain general practitioners in a town — let us take a town with a population of about 10,000 people and four general practitioners operating in the general area — were conscientious objectors, that they strongly disliked the idea of prescribing either medical contraceptives or non-medical contraceptives, or they did not want to issue either a prescription or an authorisation, so that there was not reasonable access in that area? Is that the kind of test the Minister means there by "particular need", that there might be a possibility of an application from that town for the establishment of a clinic with a medical practitioner involved in it so that the authorisations and prescriptions could be made available to the people in that area? The words "particular need" seem to suggest that the need has to be particular to an area, or particular to a class of people. I do not know what it means. Is the Minister prepared to help me? This is not a question that I have heard raised before in this House, or heard dealt with in the debates in the other House. The Minister should be prepared to answer that specific question.
What is the question, because if it is what I think it is, I have answered it several times already.
The question is, when you have the phrase — as you have in subsection (3) (b)—"reasonably required to meet a particular need", is that meant to imply that the Minister must be satisfied that in a particular area or locality the need for family planning services is not being provided by other methods?
I answered that question at 2 o'clock today.
At 2 o'clock today, we were in recess. We resumed at 2.15. I was present during all of the debate, both in the morning and afternoon. The question that Senator Robinson has now asked relates to the town in the example that she gave to help the Minister. There were four general practitioners all of whom had conscientious objection to the operation of a family planning service—I take it that that meant a family planning service with contraceptives other than the rhythm method.
I have explained my position on that about twice on this occasion.
There was no reference whatsoever to the sort of question that Senator Robinson was asking. The record, fortunately, will bear that out. Neither before nor after 2 o'clock today did the Minister — to my satisfaction or, indeed, with the faintest reference to the question asked by Senator Robinson just now — make a reply, or anything resembling it.
On the contrary, I want to make it crystal clear, a Cathaoirleach, that several times today I dealt with exactly what I meant by the meaning of these words and the circumstances in which I visualised them coming into operation, what I meant by "a particular need" and "reasonably required". I said exactly what I meant by paragraph (b) of section 3 on an number of occasions already today. It is very unfair of Senator Keating to suggest I did not. I know I did.
I will refer to the arbitration of the record which will judge whether or not the question now asked by Senator Robinson was either answered or in any way referred to by the Minister earlier today.
I explained the circumstances in which paragraph (b) would come into operation for any reason. I dealt with this quite frankly. I said exactly what I mean by it.
Unfortunately, I had to go to a meeting, but I enquired when I returned as to whether there was an answer given as to what precisely would happen. The Minister may have given his answer, but it seems to have escaped the notice of the Senators, certainly on this side of the House to whom I spoke.
Did I answer this question earlier on today?
Yes.
Certainly the Minister gave an answer to it whilst I was here, but from the answer one could not judge whether the family planning clinics could continue to operate the moment this Bill became law.
That is not the question we were dealing with now.
No. But the specific question that I put in relation to Senator Robinson's question was never answered. But I will say this: that the question has been put on several occasions in my presence in the House today, about the position of the family planning clinics once this Bill becomes law. I have not, whilst I was here, had an answer that would indicate to me that, yes, they will operate legally, or if they continue to operate they will operate illegally.
I have told the Senator what my position is. He may not like my position, but I have told him what it is on several occasions. But Senator Robinson is now on a different point, another point on which I have explained my position several times today. On paragraph (b) I explained the position and I think Senators who were here in this House will confirm that I have done it on at least three separate occasions in the course of the afternoon. I said that what I had in mind was that if for any reason the general practitioner plus the pharmacist arrangement was not meeting the needs in a particular area or for a particular category of people, then the provision of services, either by a health board or by a licensed family planning clinic, would be considered.
I apologise to the Minister. He did not say that whilst I was here earlier. But I accept his answer as being absolutely clear now. I understand from it that the family planning clinics will not be able to operate legally once this Bill becomes law. There is only one other question I would like to put to the Minister.
That is not true. I said also several times that any family planning clinic, if there is a need for a family planning clinic in the public interest, for a particular area or a particular class of people and if the clinic are licensed and if they comply with the provisions of this legislation, there is absolutely no reason why they should not be there.
With respect to the Minister, that is double talking, because, to put it quite simply, the Minister has——
If you do not like my answer that is a different matter.
It has nothing to do with liking the Minister's answer or not. It is a simple proposition regardless of whether one likes to have family planning clinics there or not. If one simply seeks in this House to inquire as to whether or not, once this Bill is passed, the family planning clinics will be able to operate legally, we seem to have been unable to get a direct answer to that question. I accept that the Minister may be anxious to see how his main system or his basic plan will operate. If the Minister says that he wants to wait and see how that will operate before he decides about giving consent — which is what I thought he was saying just a few moments ago — then I must take it from that, that at least for an interim period, for some length of time whilst the Minister judges the worth and the suitability of his main system, the family planning clinics cannot operate legitimately under the provisions of the Bill.
Senator Keating has made that specific proposition to me about three times already.
Does the Minister confirm it? It is time to clarify the situation.
I have told the Senator — he may not like my position—but I have told the Senator my position.
It is not a matter of liking it or not. That is irrelevant.
I think we are making progress, because the Minister, in response to the question what is meant by "a particular need", made it clear that it is if the scheme involving the pharmacist and the general practitioner does not provide a service that meets the needs of either a particular area or a particular class then there may be a consent and this, I think I would totally agree with Senator Molony, necessarily means that in the immediate term the family planning clinics are not going to be able to get the consent from the Minister. Because the Minister does not have a discretion under the terms of section 3 (a) and (b) as the words are "shall". Under section (b) it says that the Minister shall not give his consent to the making available of a family planning service under this section unless he is satisfied that it is in the public interest to give it and that the service is reasonably required to meet a particular need. Now the Minister has defined "a particular need" as meaning that this combination of the pharmacist and the general practitioner is not meeting particular requirements. That requires time to see whether the combination of the pharmacist and the general practitioner is not meeting general requirements.
I might also be satisfied that they could not and would not be able to satisfy that need.
Sorry, I did not understand what the Minister said. I think this is important. Would he like to clarify it? He has defined——
I think the Senator is missing the whole point.
No, I think we are getting much nearer to an understanding of the point and I am pleased to be getting this clarification. I am grateful to Senator Molony for prising out this pearl of clarification for us.
On the contrary, I made that statement several times this afternoon and a number of Senators here will confirm that for me. It is not fair to be interpreting the Senator's absence as intransigence on my part.
I accept what the Minister has said but it is still hard to know precisely what he is saying.
I think we are getting closer to it. The Minister said that a particular need here in this subsection (b) of section 3 means if the system of the pharmacist and the general practitioner was not meeting a particular need either in an area or of a certain class of people. That means that there has to be a period of seeing whether the scheme provided by the pharmacist and general practitioner under the terms of this Act does satisfy needs. It is only if it does not satisfy a particular need of a particular area or class of people that the Minister will consent to an alternative, the alternative being the operation of a family planning clinic in the area. For the first time — certainly as far as I am concerned, I hope I have not been too slow to gather the significance of the sequence here — it is now very clear to me from a legal point of view that the Minister will not be in a position to consent to the operation of the family planning clinics when this Bill becomes an Act. Therefore, there will be, under the terms of this Bill, the closure of family planning clinics if they accept the terms of this Bill, and that I think is very interesting and very significant because the Minister does not have discretion in the matter. The Minister "shall not" give his consent to the making available of a family planning service under this subsection unless he is satisfied on two things and they are cumulative — that it is in the public interest to give it, and that the service is reasonably required to meet a particular need.
The Minister has, apparently, repeatedly today made it clear that a particular need there means that there has been a failure of the scheme under the Act to satisfy the need. That necessarily will take time to see how the system under the Act — the system of the combination of the pharmacist and the family practitioner — will work out. By the Minister's own explanation of the terms of the provisions he could not in law, if the section comes into effect, consent immediately to the operation of the existing family planning clinics because he could not have satisfied himself that they are reasonably required to meet a particular need. That does definitely clarify what we suspected and of which we are becoming more and more convinced. It is now very clear that the Minister, under his own understanding of this section, will not be in a position to consent in law to the continued operation of the family planning clinics, that he will be in such a position some time in the future if he is satisfied that the system of the pharmacist and general practitioner does not meet the needs of a particular area or a particular class of people, either because of the example that I gave of conscientious objection by practitioners or pharmacists or some other reason in a particular area. Then he may validly consent, under the terms of this subsection, to the future operation of an alternative family planning clinic offering an advisory service in that area. At least I think the situation is now clear; at least we now understand that from a legal point of view, if this section is not amended, the Minister apparently cannot consent immediately to the legal operation under the Act of the existing family planning clinics because he cannot satisfy himself of one of the conditions under the section as now clarified by him.
I do not accept Senator Robinson's interpretation of the situation and I am quite satisfied that the Bill as framed and structured enables me to provide a comprehensive family planning service for the general public in any way that I see appropriate and desirable.
I shall stop trying at this stage to find out what is in the Minister's mind. I already accused him earlier today of not being forthcoming on this subject: I do not believe he is. We will wait and see what will happen. I am surprised that a Minister of his standing and ability seems to have a fear of opening up his mind on an important subject that is going to become of vital importance the moment this Bill is passed.
Leave my mind alone; my mind has been analysed and psychoanalysed ad nauseum today. We are not talking about my mind but about legislation.
With every respect to the Minister, it is the Minister who will have the power and it is very much what is in the Minister's mind that matters because like many other sections in this Bill the section is woolly: it is quite unclear as to what might or might not happen and the one thing that is clear under this section is that the Minister will be the man who will make up his mind. The Minister is the man who is going to have to make the decision. We asked what I thought was a reasonable question. The Minister is constantly complaining that we do not like his answer. I certainly do not like his answer because it is a bad answer——
I am not going to change it.
——in this sense, and in this sense only, that it is the answer of a man who is afraid to give his mind. It is an answer that is an answer in words but not in meaning and I think that is a pity. If I may be so bold at this stage as to change the subject, there are just two questions I would like to ask. They are simple and not hypothetical. We all know that family planning clinics have been operating outside the scope of the law. Perhaps there have been questions about that which could have been argued. It does appear that if they operate the day after this Bill is passed without having the Minister's consent that they will most certainly be operating illegally. I would like to ask the Minister whether it is his intention to see that they are prosecuted if they do in fact so operate without his consent.
Whether or not people who break the law are prosecuted is a matter for the Director of Public Prosecutions.
Is the Minister disinterested in whether they are prosecuted or not?
The Senator asked me a question: I have answered it.
The second question is: is the Minister disinterested in whether they are prosecuted or not?
I think there is an unfair implication in asking that. It is not a question dealing with this legislation. It is an insulting question.
I certainly do not mean it to be offending or insulting in any way. I am sorry the Minister looks at it in that way. I certainly do not mean it in that way. I made a Second Reading speech in which I mentioned that I thought it likely that this Bill would end up before the High Court and the Supreme Court. That is the reason I asked the question. That is the only reason I asked the question. I am not at all concerned with offending or insulting anybody in this House. The second question is the question Senator Robinson asked but there was not an answer to it. Perhaps there was an answer earlier in the day. If so, perhaps the Minister will forgive me for asking it again. Has the Minister received any application from the family planning clinics for consent under section 3?
I do not intend to disclose that. If I did receive such an application it would be a private matter. I do not think anybody would apply for consent under legislation that has not been passed.
Is the section agreed?
I want to make a plea to the Minister because I see something very undesirable happening in this whole situation about the clinics. What I see happening is a confrontation between the clinics, perhaps the Family Planning Association, and the Minister. It takes two to make a confrontation. I am in agreement with the comment the Minister made a little while ago — he said that they had threatened to break the law — and I must say about that, and through the record of this House to them, I regret that. That was a pity. They did not strengthen their own case, Breaking the law is a last resort if people are so outraged that they had to choose between the law and their consciences. That is something that everybody some time or other in his life has to face but it is something that you come to very late in a process and not early in a process. I am sorry they did it. I am sorry to see large, decent, representative and serious groups of people making that threat. The second reason I am sorry is that it makes a resolution of the problem more difficult. It seems to me that in response to that unwise threat that the Minister for his part is responding unwisely because what he is in effect saying is, "I will be damned if I will tell them what I am going to do; either the Seanad or them; they can just stew for a while and that will serve them right for their rudeness in threatening to break the law". I mentioned the danger of a confrontation earlier but I did not mention their threat because a threat is always a bad basis on which to resolve a problem. I am sorry it was made. The Minister did mention it.
If it takes two to make a confrontation it really only takes one to start resolving it, to make a first move towards a resolution of it. The Minister told us that he had consultations, I do not know whether with family planning associations or with individual clinics, prior to the drafting of this Bill. I am not asking him to tell us what was in those consultations. I know as a fact that they are exceedingly disturbed about their future. I know from the fact that they have publicly threatened to break the law that they were exceedingly disturbed by the results of the consultation. They were not reassured. They were not calmed.
There are also people who disapprove of them and would like to see them closed down. But they represent something very real. I am not now offering a judgment as to whether it is something good or bad but it is real; it is part of life, especially of the urban areas of Ireland. I think we have had enough difficulties already in the contraceptive area and enough farces and enough charades and enough things that brought, I think, shame, not to one side or the other but to everybody. I would hate there to be the sort of confrontation that resulted in the Minister — he has, perhaps, more Government experience than I have but I have some.
He pointed out to Senator Molony that the decision about prosecution was a matter for the Director of Public Prosecutions. That decision is made by the Director of Public Prosecutions, as I understand the process in the light of what Departments, or Ministers or those people charged with upholding particular laws may do or may say: he does not take it out of a clear blue sky. Things are referred to him for his consideration. It seems to me that in practice and in reality the attitude of the Minister about prosecution is a real question even though the Minister may again give the answer that he just gave to Senator Molony and say that it has nothing to do with him, that it is for the DPP. He knows that in practice his attitude, and the attitude of his senior civil servants, will have a bearing.
I would hate there to be a violation of the law. I would hate there to be an ensuing prosecution. I would hate this thing to escalate any more than it has done. I would hate the clinics to be broken up. I would hate the expertise that they have accumulated to be dissipated. I would hate their organisation and structure to be broken up. Therefore, I would beg the Minister to put aside, whether legitimate or illegitimate, his irritation with us for having, as he considers, pursued this thing unreasonably and gone on too long and for appearing to be filibustering and all that. I would leave it to the dispassionate judgment of the record as to whether the arguments were serious and good arguments, whether they were repetitive or not. It will all be on the record. We can all go back over this in cold blood and see whether it was filibustering repetition or whether it was serious argument. I ask the Minister to put aside his irritation with us and to put aside his irritation with people who, in my view, in their own interest did a thing that was not wise and let him make the movement of reassurance towards them because people act irrationally and they overreact out of insecurity. The uttering of the hope of a little bit of security for them from the Minister would have a very calming effect. I think this is a reasonable place to do it.
We are near the end of this debate in both Houses. It has not been a long debate here. We are nearer the time when we all go home for our holidays. There will not be any more debate on this for a considerable time. Either House of the Oireachtas is a suitable place for a Minister to do that rather than by a newspaper announcement. I would beg him before we leave this section, because this is the relevant section, to utter some word that at least opens the possibility of some light at the end of the tunnel.
Senator Robinson said that in her position — and we have to respect her opinion as a lawyer as well as a legislator — the matter was now clear and that the Minister did not have discretion and did not have the power to ensure continuity of those clinics. I do not know whether or not that is true, The Minister simply responded by saying that he did not accept that interpretation. That was all he said. That was better than saying nothing. I am glad at least to hear that he does not accept it because if that interpretation were true then people would be irrevocably committed to a collision course and a collision would take place. In that sort of collision there are a lot of losers and there are no winners. As I say, in this whole contraceptive thing there is enough passion, enough irritations, anger and misunderstanding already without adding to it. I think it would not need much now to effect a better understanding. I am glad to hear that the Minister does not accept Senator Robinson's interpretation and my feeling is: I suspect that she is right but I hope that she is wrong because then I do not see any way out of this confrontation. But I would like the Minister very much to amplify a little his rejection of her interpretation and to say that there is a mechanism by which he can ensure that continuity. Also having mentioned the fact that they threatened to break the law, I ask him not to take the position that he will not move until they move. I think they would like to back off from that. They might think they would like a way out and I think this is, perhaps, the moment for him to utter some sort of reassurance that the expertise that they have assembled can be continued and will not be disrupted.
Is the section agreed?
No.
I move amendment No. 10:
In subsections (1) and (2), lines 12, 26 and 33, after "reasons" to insert "(including the prevention of conception)".
This amendment outlines what I think are the best of medical reasons for giving family planning advice, instruction and facilities. One situation that would be covered by this amendment is the prescription of the pill as a cycle regulator when in fact people require it as a family planning device. That has been regularly done prior to the introduction of this Bill. The terms of this Bill should not be restricted to married couples. They should be available to people who are not necessarily married. The only two ways in which such facilities could be made available under this Bill are through sections 4 and 5 (1) (a) where people may import contraceptives into the State. The addition of the extra words, "including the prevention of conception", would facilitate the provision of family planning services to people who were not necessarily married.
I am unable to accept this amendment. I am not sure that, even from the Senator's point of view, it would achieve a great deal. From my point of view it would strike against the very foundations of the legislation. My Bill is framed on the principle that artificial contraceptives are to be made available on prescription or authorisation for family planning reasons. The Bill also recognises that it would be unduly restrictive if the medical profession, in the exercise of their calling, could only issue artificial contraceptives for strictly bona fide family planning purposes. The prescription of artificial contraceptives by a medical practitioner in the interests of a patient for any other medical reason is permissible under the legislation. I think the Bill, as framed, is adequate. It is not unduly restrictive. I do not see that the inclusion of these words would add anything to the section, even from Senator West's own point of view.
The Minister states that the word "family" in the term "family planning service" was meant to indicate that the service was restricted to a family situation. If the definition given in section 1 is adhered to, then I believe that it can be construed and would be construed as applying to a wider group of people; in fact, to people who were not necessarily in a family situation, because of (b) and (c) in the definition of a family planning service. I could be wrong on that. If it turned out to be right, then I certainly would not complain. The Minister and I differ on this matter. I believe that the services which we are discussing should be available to a wider category of people than those who are married in the eyes of the State.
I know there is considerable disagreement on this subject in this House and I do not intend to labour the point. The purpose of the amendment would be to give more chance for the medical profession to interpret the Bill in this sort of way.
I did not follow the Minister's response to this amendment. I can follow Senator West's reasons for tabling this amendment. Do I understand the Minister to say that the term "medical reasons" can include the prevention of conception for medical reasons, in other words, if it were felt that for medical reasons in a particular instance it would be better to prevent conception?
Yes, if it is a clinical judgment.
For example, if the people who came to the doctor were people who, because of their youth or their physical state, should not conceive, there could be a medical reason for preventing conception?
The Bill is specific. If for adequate medical reasons the doctor is of opinion that he should issue artificial contraceptives, that is his decision.
There could be medical reasons why a doctor could be of the view that it should be——
I understand that doctors issue certain types of artificial contraceptives to old people who are incontinent. That is one particular case that comes to mind.
If we could pursue the medical reasons that are more in line with Senator West's amendment, we can discuss the broader aspects of this subsection when we come to deal with the section itself. The Minister has confirmed that the words "medical reasons" can include the prevention of conception. I want to ascertain the particular circumstances.
I could see a number of reasons where, from a medical point of view, a doctor might think it was undesirable that somebody gets pregnant. Therefore, he would have medical reasons to prevent conception. These would seem to be very much in line with the intent of Senator West's amendment. It seems that if "medical reasons" is to be interpreted as including the prevention of conception where the doctor feels that this would be important for medical reasons, then it may be that this amendment is not necessary, that a doctor can form a view that for medical reasons a pregnancy would be undesirable in any circumstances and, therefore, in order to ensure the prevention of that pregnancy either a prescription or an authorisation should be available to the person.
I support the sense of Senator West's amendment. I would be guided by the Chair as to whether I should follow the next question that arises on the amendment or whether it would be more appropriate on the section. It might be better on the section, in which case I will defer what I have to say. I can think of no other Bill where an explanatory memorandum would be more useful but we did not have one on this. I find the question of bona fides in this context an extremely difficult one. Perhaps I should raise it when we pass from this amendment to the section.
It would be more appropriate on the section.
I am satisfied with what has been said.
I gather that a medical practitioner will have to record on a prescription for contraceptives that it is issued pursuant to the Health (Family Planning) Act, 1978. A number of women are presently on the pill for reasons not associated with family planning. There are single women, young and old, who for medical reasons had been on the pill long before this Bill was thought of. Is it now the case that those people, even though they require and are prescribed the pill for medical reasons, and not for family planning reasons must have on the prescriptions that they present to their pharmacists the words "Health (Family Planning) Act. 1978"?
The position is clear. If it is a pill of any sort, or a drug or a medicine for medical reasons, it does not come within the context of the Bill.
Where does a doctor or a medical practitioner get the authority to prescribe a contraceptive for a medical reason not associated with family planning purposes? There is a general restriction on the sale of contraceptives.
This Bill deals with prescribing contraceptives. If it is a drug or a medicine for medical reasons, it is not within the terms of the Bill.
How is the pharmacist to know?
He honours the prescription. If the doctor gives a prescription for any drug or medicine. that is good enough for the pharmacist. If the prescription is for a contraceptive it is stated on it that it is for the purpose of this legislation.
Section 4 provides: "A person shall not sell contraceptives..." What is known as the pill is a contraceptive.
If it is a drug or a medicine prescribed by a doctor it does not come within the terms of this Bill.
Does the Minister know what I am speaking of when I speak of the pill—what is commonly known as the pill?
I will not be cross-examined.
Is the Minister being entirely honest when he says that or is he just being obstructive and refusing to answer the question? Does the Minister refuse to answer the question?
There is a limit to cross-examination.
I do not wish to be difficult. I see a difficulty being created for pharmacists. I see a wretched difficulty being created for people who, for reasons not associated with family planning, may have to have on their prescriptions——
Will the Senator accept my assurances that there are no difficulties for them? I have discussed this matter with the doctors and the pharmacists and everybody is quite clear about the position. The legislation is quite clear. A drug or a medicine of any kind prescribed by a doctor does not come within the context of this Bill. An artificial contraceptive is within the context of the Bill and the authorisation or prescription will so state.
I am not trying to be difficult. The Minister is making me seem difficult.
It comes naturally to the Senator.
The section is drafted in such a way that there is no way that a pharmacist could know. The section reads "A person shall not sell...".
A pharmacist does not have to know. If a pharmacist gets an ordinary prescription from a medical practitioner he honours that as he always does and will continue to do. If he gets a prescription that specifically states that it is issued in accordance with this Bill, he will honour that too. The decision as to what type of prescription or authorisation is issued is one for the medical practitioner.
This section will have to be taken in small doses because there is a great deal in it on which we will need clarification. I should like to begin by trying to clarify the scope of a new prohibition which did not exist under the Criminal Law Amendment Act, 1935, that is, the prohibition on supply. Under this Bill, if it is passed into law, the supply of contraceptives, except by way of sale under the terms of the Bill, will be an offence. The provision does seem to be very tight. It says that a person shall not sell contraceptives unless the sale is in accordance with the regulations under the subsection and he is a servant or, agent acting as such of a pharmaceutical chemist, or a dispensing chemist and druggist who keeps open shop and so on.
Subsection (3) provides that: "A person shall not supply contraceptives otherwise than by way of sale under and in accordance with this section." When a doctor is giving advice about family planning, or when somebody qualified to do so is giving advice and the individual after considering the circumstances decides to have a particular type of contraceptive which requires to be fitted, the normal custom under the present circumstances is to supply the contraceptive that is fitted. I would like clarification from the Minister as to whether that can continue under this present section. It appears that any such supply would constitute an offence. I may be wrong in that. I should be grateful if the Minister would clarify that point.
I do not understand the question.
The problem with a total prohibition on supply is that it is normal for doctors in their individual practices or for those operating a family planning clinic to supply the type of contraceptive if it has to be fitted.
No. That will not continue to be so.
How is the doctor or whoever is providing the family planning advice and service to operate from a professional point of view if he or she cannot fit people and thereby supply them?
I do not know that any difficulty will arise in that connection. The provisions of the Bill are quite clear. A doctor gives a prescription or an authorisation and the pharmacist supplies the item in question. That is what is in the Bill. If the Senator does not like that I cannot help it.
The Minister should not get excited. We are only trying to tease out the provisions in it.
The Senator knows full well what is in the legislation.
I do not know full well what is in the legislation. I am having greater difficulty with this legislation than is customary because of the absence of an explanatory memorandum, to which Senator Keating referred, and because of the very opaque and vague provisions of the Bill.
When I tell the Senator specifically what is in the Bill, that is not acceptable either. The Bill is criticised because it is opaque. When I give a clear-cut——
It is only the start of the section. Are we going to start it off in ill-humour or are we going to apply ourselves seriously to the job that we were elected to do?
I do not think the Senator was ever elected to do the job which she is doing this afternoon.
That is a disgraceful observation.
That is the decision of the Senator, I admit.
Let me be the judge of that. I am glad this debate is on the record of the House. It is rather revealing.
I hope it appears on the record.
Yes, exactly, because things are not——
I beg the Senator's pardon? What was that suggestion?
The Chair cannot allow this cross-questioning to go on.
What I was trying to ascertain was the position both for the doctor and for the woman seeking to have a particular type of contraceptive which requires to be fitted. Under the present situation the position would be that the doctor would normally fit the contraceptive and then depending on whether it was——
Excuse me, Senator, I want to intervene again on that question. I want to make it quite clear that the Minister has nothing to do with the debates. In other words, he does not interfere in any way whatever with what is published in the debates, if that was being implied. That is a matter for the Chair.
I offered the observation and I would wish immediately to say that I did not intend to imply that. But things are said, and have been said by myself, that I would have wished to have appeared on the record and did not appear on the record. That was all. I thought the Minister's observation was an important one. In so far as I meant anything, I meant that the attention of the recorder should be drawn to it. That was all that I meant by it. It is not for me to make any implication of that kind.
If they are notified to the Chair the Chair will ensure that they are seen to.
There was no implication adverse to the Minister on this matter. If I wished to do so I would do so expressly.
Perhaps the Senator will tell us what the remark was?
Senator Keating, I think, described as disgraceful a remark of the Minister's. I expressed the hope that it would appear on the record. I think he added something with regard to the record and I said "I hope it appears on the record".
Which remark of mine is causing all this excitement?
The Minister brought himself back into it, I did not. I gave an explanation, which I hope is satisfactory, to the Chair that I did not imply any specific action on the part of the Minister in regard to it. I desired that this observation of the Minister should appear on the record because I thought it was an important one if it received the epithet that Senator Keating had applied to it. I have had the experience of making remarks that have not been recorded. I thought this ought to ensure that it would be brought to the attention of the public. I certainly did not imply, as the Cathaoirleach was so fearful that I might have implied, that the Minister would do anything actively to prevent it being recorded. The Minister has been querying me about that and I said that if I wanted to imply something against the Minister I certainly would express it.
To which particular remark of mine is exception being taken? If I made a disgraceful remark I would be prepared to withdraw it.
It was I who used the word "disgraceful". The Minister offered the opinion that Senator Robinson was not doing the job in the Seanad that she was elected to do. Senator Robinson was duly elected to the Seanad and, it seems to me, is pursuing her duties as a Senator with exemplary dedication.
I did not make that remark in an aggressive spirit. What I said was that I do not think the Senator was elected to do the job that she has been doing here this afternoon. What I meant by that—and I am not going behind the door about it—is that I think the Senator has been unduly repetitive in a number of her arguments and has been—and I said it to her—— filibustering to some extent. I do not say that in any insulting or aggressive way. I just think the Senator has been delaying the passage of the Bill, but then I qualified it by making a ready admission that whether the Senator was doing the job she was elected to do or not is entirely a matter for her judgment.
It seems to be clear that the Minister had some time scale in his mind about when he could get this Committee Stage through the House. Perhaps he thought it could all be wrapped up in an hour or something. I do not know. From the beginning of the time that I have been in the House he has been extremely tetchy and irritable and has accused us of delaying. I do not find that there has been undue delay, certainly there has been no filibustering and certainly no intent on this side of the House to string things out just for the sake of it. I can assure the Minister that we have far more to do; we are people with a great deal more to do than to sit here unnecessarily filibustering. We have got a good deal more information——
There has been a lot of personal abuse of me.
It has been reciprocated; the Minister is well able to reciprocate.
There is to be no personal abuse in the House.
Let us return to the problem about which I was trying to get some clarification. As I said, I want to concentrate at this stage on the new prohibitions in this section, namely, the prohibition on supply; there cannot be any supply of contraceptives. I wanted to see what the implication of that would be for the actual advice and help being given to people who decide to use particular types of contraceptive. Let us take for example the contraceptive cap which is normally fitted by the doctor or the GP if he is doing this or by the family planning clinic if the person has sought to go to a family planning clinic. The normal practice, as I understand it, would be that the person would retain that cap as having been duly fitted and would then be given a prescription for the necessary contraceptive cream to go with it. That would seem to be the normal way of going about the provision of that particular type of contraceptive. It certainly would be the way that I imagine any woman who is seeking that kind of contraceptive would want the situation to apply.
Am I to understand from the Minister that that cannot be done now under the present section? Because if it is not possible to do that then the situation will be unnecessarily worsened a good deal for the woman involved. Let us take an example. She goes along to her general practitioner and after discussion it is decided that what she wants, and hopefully what she has discussed with her husband or her partner and what they both want, is for her to be fitted with the contraceptive cap. The doctor then fits her with the cap and then he says that she cannot go away with it, that he must take it out again but that she can have a prescription for the size; but then, because of individual circumstances she must return to the doctor so that he can fit it again once she has got it. They must go through all this business again but that, of course involves the woman in two visits to the doctor so he will have to charge her twice for the medical visit; he will charge her for the prescription.
Would this not seem to be an unnecessary bureaucracy and an unnecessary encroachment on the doctor patient relationship? Would it not be an unnecessary inconvenience and nuisance for women who decide on this type of contraceptive and who, in the past, have been accustomed to a supply of that kind of contraceptive—not necessarily a free supply but a supply with the doctor taking into account that he has supplied it to her in the way that doctors prescribe samples of their medicines to anybody coming to them? It is the normal thing; a doctor starts somebody on a medicine or drug when a person comes into him; he starts somebody on a particular thing and gives that person a prescription then to go off and get further supplies. Are we uniquely, in this area, providing that doctors cannot do that, that they cannot, in fact, carry out their normal professional work in this area, but have to go through this bureaucratic hoop here of the person going into a pharmacist and coming back and being re-fitted to see that the particular contraceptive cap does fit her and is appropriate to her circumstances so that she has to have two visits to the doctor? Perhaps the Minister could clarify whether or not I have misconstrued the section and if I have not misconstrued it could he indicate whether or not he finds this position entirely satisfactory?
I would be grateful if the Senator would make all the queries so that I could deal with them altogether.
Given the very extended scope of the section and the fact that there are a very large number of points that I would want clarification on, I would certainly prefer if the Minister would oblige me.
I have said what I want to say on that point.
The Minister is noted for his personal courtesy. I think courtesy might be shown to the Assembly by his standing up when addressing it.
Well, sometimes some informality does creep in in this House and we address each other from a sitting position. But if the Senator is very sensitive on this point I assure him I will stand up with great alacrity in future when I am speaking.
I have nothing more to say on the point raised by Senator Robinson. The Bill is quite specific in its provisions that the doctor issues a prescription and the items concerned in the prescription are supplied by a pharmacist. I would just make the point that the prescription or the authorisation could cover a number of items. I do not think there is any need for patients to visit a doctor every time they want a particular item; a prescription or authorisation could cover a number of items or a period of time.
I take it that the Minister feels that he has adequately replied and, therefore, I must assume that what I said is not something he wants to contradict and that the position for a woman who wishes to be fitted with a contraceptive is that she cannot, in fact, take away with her on the first visit to the doctor the contraceptive with which she has been fitted by the doctor but must somehow hand that back to him lest either of them commit a criminal offence and then make her way off to a pharmacist with the prescription and then, probably for safety, come back and be re-fitted by the doctor, therefore necessitating two visits to him.
This leads me on to the next part of this section with which I have considerable difficulty. A number of us have had a difficulty with the structure of the Bill which was referred to at some length on Second Stage. What is the significance of section 4(1) (a)? It reads:
the sale is in accordance with regulations for the purposes of this subsection relating to the sale of contraceptives.
What kind of regulations does the Minister have in mind there? What is to be the scope of these regulations? Could he, perhaps, give us some clarification? Does he have draft regulations ready? Is there any reason why he might not let the House know what the content of those regulations might be? Is the Minister going to answer my question?
I suggest that if the Senator makes all the points she wants to make on the section I will endeavour to deal with them. But I do not think I can be expected to be just hopping up and down, as Senator FitzGerald now expects me to do, replying to question after question. I think it reasonable to ask the Senator to put all her points on the section and then I will endeavour to reply to them.
The Minister has done a good deal of hopping up and down in his life and he will do a lot more if he is going to reach what he aspires to. He will simply be required by me to comply with what I think is proper respect for this Assembly. He has no right to deprive Senator Robinson of her privilege of making her points on this section one by one or all together. She is entitled to make her own decision on that and the Minister is obliged to answer her.
I feel entitled to answer as I wish.
I will do the best I can in the circumstances since the Minister is declining to answer questions put to him in this way which I would have thought would have been a way of expediting the discussion on this section. If we can go through it question by question and eliminate them we will not have such considerable difficulty in trying to get answers. The experience we had on Second Stage in reply to this debate was that there were very few answers to a general discussion of the terms of the Bill and what I felt was that if we have a general Committee Stage at this stage we are not going to get the kind of precise answers that will enable us to move on to another section. But, so be it. I do certainly not at this stage say that the questions I shall ask are all the questions I shall ask. The Minister, I am sure, is all too familiar with the need for supplementary questions and of the fact that contributions from other Senators trigger off further questions and further comments. What I will do, though, if the Minister wishes me to, is to indicate at least some of the questions that I would like to have some answers on on the terms of the Bill.
Why did the Minister feel it was necessary to provide in subsection (1) (b) (ii) at the top of page 4 of the Bill that the person to whom the contraceptive is sold be named in the prescription thereby making it, as I understand it, impossible for someone else to bring along the prescription and obtain the contraceptive? I can think of a number of circumstances where for one reason or another the person to whom the contraceptives are to be sold, for a very good reason might not be the person named. In other words the person named might be ill or unable to get the contraceptive and might need the contraceptive to continue a monthly cycle or they might not be able to get to a chemist's shop during hours so they might get the spouse or somebody else to get it for them. It seems to be a very tight and rather bureaucratic provision, tighter than it needs to be. So I would be grateful if the Minister could clarify that for me.
The other question I would like to put is to try to begin to understand the scope of the word “bona fide” in this section. It is preceded and succeeded by a comma; so it stands there between two commas, and that is about all I can say about it for the moment. The relevant paragraph is as follows:
the person to whom the contraceptives are sold is named in a prescription or authorisation in writing for the contraceptives of a medical practitioner and is a person who, in the opinion of the practitioner formed at the time of the giving of the prescription or authorisation, sought the contraceptives for the purpose, bona fide, of family planning...
One of the problems that arises from that particular phrase is of course that is not in either the first or second official language of the country but is rather in Latin, which may not help us. Rather than give the Minister my views of what bona fide means at this stage, perhaps it would be a more constructive approach if he were to give me his views of what bona fide means in the context of this section of the Act. He put the word there and perhaps he would be kind enough to tell me what, as far as he is concerned, the word means.
The answer to the first question is no. No regulations have been drafted prior to legislation; that is the normal practice.
I was not just asking were regulations drafted but what kind of regulations had the Minister in mind.
I am not in a position to say at this stage.
The next question raised by Senator Robinson will not cause any difficulty. There is nothing unusual about this. All prescriptions must have the name of the person to whom they are issued written on them.
That is not in this section.
This particular provision in regard to prescriptions or authorisations does not differ from the norm as prescriptions generally have to have the name of the person to whom they are made out. But I am also assured by the parliamentary draftsmen that the difficulties Senator Robinson envisages would not arise. Even though the prescription has been made out to a particular person in accordance with this section, if somebody else collects the items on behalf of that person that would in fact constitute a sale to the person named in the prescription for purposes of this legislation and no difficulty would arise in that regard.
I do not think I can help Senator Robinson in regard to bona fide. I would have thought that it is a fairly widely understood phrase. Its meaning is generally accepted; in fact Senator FitzGerald used the phrase once or twice in his remarks earlier on. Presumably he knew what he meant by it. In this context it means just exactly what it says, “good faith”, a genuine decision by a family in regard to the planning of that family, that is, the number of children they have, the spacing of the children or whether they will have any children at all. It is a purpose genuinely in good faith related to that sort of decision.
The Minister assured me a short while ago that no difficulty would arise in relation to the problem that I put before the House, that of any woman, particularly an unmarried woman or spinster, who wished to avail of what I call the pill and that the Minister did not understand the meaning of. I can describe it as a synthetic hormone which suppresses ovulation as long as the daily dosage is maintained. As well as being a cycle regulator it is also a contraceptive, of course. I accepted the Minister's assurance when he said it. At the time I presumed that I had misread the Bill in some way. I have gone back and I have looked at the Bill and I am satisfied now that what I say is correct. I have to ask the Minister to point out where a medical practitioner may issue a prescription and a pharmacist may sell a contraceptive without availing of or without having before him a prescription that is stated to be—whatever the words are to be used are—pursuant to the Health (Family Planning) Bill, 1978. I make my case on the ground that the synthetic hormone to which I refer is in fact a contraceptive within the definition in section 1 of this Bill. It says:
"contraceptive" means any appliance, instrument, drug, preparation or thing designed, prepared or intended to prevent pregnancy resulting from sexual intercourse between human beings;
I would accept that if the medical practitioner who prescribed the synthetic hormone for reasons not at all associated with family planning could then in some way indicate this to the pharmacist. But the decision as to whether, under this Bill, the synthetic hormone proposed to be prescribed is a contraceptive or not is not a matter, under the terms of this Bill, to be determined by a medical practitioner or by the Minister or by anyone except the definition section of the Bill. It is clear that this synthetic hormone is a drug designed, prepared or intended to act as a contraceptive. It can be used as a cycle regulator and not at all for family planning purposes. But one way or the other it is a contraceptive under the definition section of the Minister's own Bill. That being the case, it is quite clear under section 4 that a person shall not sell contraceptives. It goes on to give the reasons.
A person cannot sell contraceptives unless he is a qualified pharmacist and unless the person seeking the contraceptive has given to the chemist or the pharmacist a prescription which is stated to be given by the doctor pursuant to the provisions of the Health (Family Planning) Bill. I can see no other answer to the question that I have raised but the answer that I have given. I cannot accept the Minister's assurance simply as an assurance unless in some way he can justify the provisions of the Bill he has brought before the House and give some reason for me to accept his assurance. He has given none and I would ask for one. Particularly in rural areas it is going to be positively embarrassing, perhaps to the lady who puts flowers on the altar and who happens to be a spinster and who happens to require, for medical reasons not associated with family planning, this synthetic hormone; in the past she has managed to purchase this in a chemist shop without having to produce to the chemist a prescription indicating that is was issued pursuant to the Health (Family Planning) Bill, 1978. It is wrong that that should happen. I would be glad to accept the Minister's assurance if I thought there was a shred of evidence that he could produce in this Bill to back it up.
I cannot help the Senator on that.
I accept that completely because there is no answer. It is disgraceful.
That is a new word added to the list of pejoratives.
At least it is not ranting or raving of abuse.
I wanted to ask questions in two areas. I know that the Minister had consultations; I know what the mechanism is and I know there are many inputs and it comes out of a process where the Department has inputs, where the Minister has inputs; it goes to the parliamentary draftsman; it goes to Government and so on. In the whole tone of it I detect the double think that I have talked about. I detect it here again on the question of prescribing. The double think is that there is a false distinction made between natural and artificial; it is implied that natural is good and artificial is bad and that which is artificial will be made a little more difficult to obtain. That is illustrated. Let us pursue the example of a doctor prescribing a cap—and I hope the Minister will either tell me my interpretation is crazy or that I do not understand and that there is a simple mechanism and that this is not any sort of wilful obstruction of the ordinary easy availability of a cap because, as Senator Robinson said, it must be fitted. So the doctor must have a range of sizes in his surgery. He must examine the patient, the recipient, and he must prescribe the appropriate size. But he may not supply it to her. On the other hand, it has been used; it has been fitted and is not suitable for being put back into the stock to be used on anybody else; the doctor cannot give it to the patient and he cannot use it again. Having obtained the prescription she must then take it to the pharmacist and have it filled by him. The person then at least has the cap. The person must then go back to the doctor to have that cap—which she owns and has properly obtained—fitted and to be supplied with whatever ancillary material is needed also; that would be on the prescription also.
I know we are into cloud cuckoo-land but would the Minister please tell me that this is bizarre, that this is not intended and that it will not happen? Tell me why it will not happen? Because if it has to happen like that it is making a cap, which I consider to be a very desirable and legitimate form of contraception as do many other people, dearer to get and more difficult to get than it needs to be. What is the reason that the legislation cannot permit the doctor both to supply and fit all in one go with one visit, one charge, one cap, no extra mess and, in time, and no extra cost? It seems that that mechanism, which is overwhelmingly the obvious one and the most desirable one, is not capable of being implemented under this legislation. I hope I am wrong but it reads that way to me.
I do not think it is going to be all that agonisingly disasterous. It is going to be an improvement on the existing situation. As I understand it, at the moment doctors cannot prescribe artificial contraceptives at all. All they can do now is give the pill to every unfortunate woman who comes to them. In regards to this cycle regulator——
I thought that the Minister had not heard of that until today.
——that the Senator is so concerned about and so deeply worried about, the situation at the moment is that a doctor, if he wishes to obey the law—and if he wants to break the law, that is a different matter but I do not think many doctors do wish to break the law—no matter what the woman's medical condition is, all he can do is prescribe this one restricted form of contraceptive which may or may not suit the patient's condition. Now at least we are moving on from there and the doctor will be in a position to prescribe various other forms of contraceptives. I suggest that that is an improvement and I know that it is one that is welcomed by general practitioners because they have told me it is. One particular lady doctor told me that this legislation will solve all her problems in so far as her practice is concerned; she was quite ecstatic in her welcome for the legislation.
I do not think that the sort of situation that Senator Keating is concerned about will erect itself into such a frightfully difficult matter. First of all, the doctors do not want to be involved in supplying contraceptives. They would prefer to issue prescriptions and that the contraceptives would then be supplied by pharmacists. I am sure that is why Senator Cooney approached the problem in much the same way when he was drafting legislation. If the horrendous situation described by Senator Keating does arise it will only arise in the first instance. I would imagine that it will be only in the case of the first visit of the patient to the general practitioner that the trouble that Senator Keating talks about would arise. Thereafter the patient would be able to procure a reasonable supply for a period of time of contraceptives without any further recourse to the medical practitioner. Commonsense will prevail and in practice the difficult situation that Senator Keating seems to envisage will not arise. The main answer to his question is that doctors do not want to be supplying contraceptives.
I wish to comment on the section and refer to some things the Minister said. One of the things he did was express his irritation at the minute way the Seanad is taking the Committee Stage. In my innocence I thought that the purpose of the Committee Stage of a Bill was to put it under a microscope and give it that fine-combing which is the responsibility of Senators and particularly so in a Bill which has implications going far beyond what is the obvious issue of contraception.
The suggestion that because we talk a lot about it we are fit subjects for psychiatric examination—the logical extension of that is that the Minister has spent so long about it that he himself is a prime candidate for the attention of these gentlemen——
Perhaps. I would not deny it.
When the Minister referred to me as a brilliant academic I deplore the fact that I gracelessly rejected the compliment and made a rude intervention. That was only because he used the terms on more than one occasion, on the Second and Committee Stages. He has used the terms academics; sophisticated, pseudo-liberal as pejorative terms not to speak of avant garde which I suppose is the converse of rear-guard of which the Minister is a representative. That is why I felt upset about it. The Minister, in using these pejorative terms to describe certain Senators, is reinforcing the antiintellectual bias for which his party are notorious.
The Bill, as outlined, seems to be inconsistent with the guarantees the Minister gave on Second Stage, in reference to what Senator Harte said, and in the Minister's own summing up. I refer to his guarantees that doctors will prescribe once they are sure that the bona fides have been established. One regrets there is no definition of bona fide in section 1. He was quite clear in his reply to Senator Harte that doctors would not refuse to prescribe where there was a bona fide case.
At column 809 Volume 92 of the Official Report of 4 July, the Minister says:
From all my discussions, and from all my examinations of the matters, and all my consultations, I have come very firmly to the conclusion that what is required is that artificial contraceptives should be made available to married persons...
Then he goes on to say that doctors are reasonable people and will not reject applications which are made in good faith. At column 797 he says:
I want to reiterate categorically, and as firmly as I can, that in my view there is no situation where a husband and wife, married people, family, seeking artificial contraceptives for any purpose of the family——
In another place he makes clear that that could be interpreted to mean trying to dodge having a family,
——could be denied or should be denied a prescription or an authorisation.
If the scenario of the medical practitioner is so benign why in subsection (2) of this section is the word "may" used in the first line—a registered medical practitioner may for the purpose of this Act give a prescription or authorisation if he is satisfied? If he is satisfied, surely it would much better accord with the Minister's assurances to Senator Harte that that line should read "a registered medical practitioner shall for the purposes of this Act give a prescription or authorisation if he is satisfied". The sense of what the Minister said the last day is that once the doctor is satisfied then he is bound, he has an obligation, to prescribe for married couples. Why then is "may" rather than "shall" mentioned in this line of subsection (2)?
Would the Minister prefer to intervene now?
I do not think there is any great significance in the point made by Senator Murphy though at first glance it might appear there was. We must always leave with the practitioner the final decision as to whether or not he would issue a prescription or authorisation. "May" in that context has a mandatory implication also. The Senator will realise that we have section 11 which retains for the medical practitioner his right to refuse on conscientious objection grounds. I see the Senator's point but "may" is sufficient for the purpose of the legislation. I do not think that unless on conscientious objection ground or good clinical grounds the medical practitioner could regard the "may" as very discretionary. In my negotiations with the medical profession I will make it clear the way I believe "may" should be interpreted.
I gather the Minister said I used the words bonafide during the day.
I am certain of that.
I would not quarrel with any attribution to me as to what I said. Would it be interesting for the Minister to address his mind to an excerpt from a debate which took place in this House which was addressed by a Minister of State? The debate is reported in the Official Report, Volume 91 No. 10 at columns 989-990. I am reported as having said:
I am sure we would all like to go onto the next section——
The words could be repeated today.
——but the words “bona fide” have been dropped from the corresponding section of the 1931 Act. I wonder why or what kind of malicious damage the words “bona fide” could be doing.
Mr. D. Andrews: It is just a piece of superfluous jargon which lawyers are inclined to use. I think the Senator would agree with me that it is really not necessary in the context and is purely a drafting matter. “Bona fide” is a cliché. Why use the words “bona fide”? Why not use “with the best of intentions”? Why confuse people?
Mr. Alexis FitzGerald: That is what is meant.
Mr. D. Andrews: It is about time we started using printable English and understandable English.
I wonder whether the Minister would like to comment on this?
Yes, I would like to very much. I prefer to accept Senator FitzGerald's use of the cliché, phrase or words in the context in which he used them this afternoon than Deputy Andrews on that particular occasion.
It may be re-assuring to the Minister to know that he seems to have helped to clarify at least one of the problems I had with this section in a reply that he gave earlier. As I understand it, I was wrong in thinking that the first line of subsection (2) of section 4 (1) (b) is a very tight provision. It says that the person to whom the contraceptives are sold is named in a prescription. That does not mean that that person has to be the actual person going in to pick up the prescription from the pharmacist. The "person" implies somebody acting on behalf of the person. Would a person not have to bring some authorisation that they were acting on behalf of the person?
No. They would not.
I had misconstrued that section. I am grateful to the Minister for construing it correctly for me.
I would now like to turn to the other response that he gave to the question that I had asked about the meaning of bona fide. He said he felt it meant straightforward or good faith, a genuine decision by a family. Let us pursue that a little. What does the Minister mean by a “genuine decision by a family” in this context? There is no definition of “family” contained in the Bill. As we know, there is a particular meaning of the word “family” in the Constitution. The family, according to the Constitution as interpreted by the High Court and Supreme Court, is confined to the married family and the family rights under the Constitution are confined to the married family. Is it in that context that the Minister uses the phrase “a genuine decision by a family”? Is “family” in the context of bona fide family planning or the context of “a genuine decision by a family” confined to the Constitutional definition of a family as a family based on marriage?
That is the general meaning that I apply to it. I interpret it here in the same way as it is interpreted in the Constitution. I have indicated on a number of occasions that I have avoided using the phrase or word "married" in this legislation. The law on marriage is in a very confused state at present. I was advised that if I were to use the words "married persons" in this legislation it could give rise to all sorts of difficulties in regard to legal interpretation. So the phrase "family" is the one that is most appropriate to this legislation. The only specific thing I can say is that I certainly exclude single persons.
The difficulty I have in understanding the Minister's explanation is that he says that he accepts the constitutional definition or sense of the word "family", but then he goes on to say that he deliberately did not put in the word "married" because of the state of confusion of the law of marriage. By taking the constitutional definition of "family" the Minister is necessarily taking the restrictive interpretation of "family" as a family based on a valid marriage. Therefore, bona fide family planning means bona fide planning by a family in the constitutional sense of being a family based on a valid marriage. I cannot quite reconcile the two parts of his answer.
If that is the way, so be it. I have not followed it out to that length. I was not aware that the Supreme Court had interpreted family in that narrow and precise way and I am not sure that it would in this legislation. When I adopted the word "family" I was thinking in terms of the family as included in the written Constitution. If the Supreme Court has interpreted family in the narrow way that Senator Robinson says and if it would follow that interpretation through into this legislation, well so be it. I have no alternative but to accept it.
I can assure the Minister that there are a considerable number of cases, dating from the Nicola case in 1966 to more recent cases, where the Supreme Court has made it very clear that the provisions of Article 41, which talk about the family as a fundamental unit of society and then talk about the family based on marriage, have given rise to an interpretation by the Supreme Court in very clear and unequivocal terms, and repeated in further cases, that family in a constitutional sense means the family based on marriage. That would necessarily have to be a family based on a valid marriage. In a case which was mentioned a good deal in this House in relation to the proposal to amend the Constitution in the area of adoption, the McGee case, the Supreme Court made it clear that the single mother and her child or children is not a family for the purposes of the Constitution. Perhaps the Minister might reflect a little more before Report Stage on the implications of this.
It is not quite enough to say "so be it". Those who are caught in this situation may be very concerned that the Minister had thought to use the word "family" in the section in the sense of the constitutional definition of family and that there is a possibility that the Supreme Court might so construe the word. We know all too well that the state of marriage is in a very confused state. We know that there are a considerable number of couples who believe that they are validly married who are not. There are other people who believe they are not validly married who still are. These are people who have obtained a Catholic Church annulment. The situation is a very difficult one when the Minister goes on to say that bona fide family planning excludes single people. Here again it may be very difficult to determine whether a person is single or not for the purposes of the law. If a couple are living together, one of whom was married and obtained a Catholic Church annulment and is, therefore, still married for the purposes of the State and that person marries somebody else who is single, that person is single. That is not a valid marriage for the purposes of the State.
The Minister has interpreted the words bona fide family planning as excluding a single person and this is part of the difficulty in a provision such as this where the words are not at all clear in their import. The Minister is giving us his view of what they are to mean and his view gives rise to these difficulties. That is why on Second Stage I said that the provision of the Coalition Bill in 1974 which made it an offence for a person to sell to a person who was not married, although that gave rise to its own kind of difficulties, at least was clear on the face of it, rather than this very nebulous provision.
If one looks for the words "sought the contraceptive for the purpose bona fide of family planning”, there are all kinds of situations where couples could be planning a family. There could be a stable couple who have two children but who do not happen to be married, either because of the various points I was making—the confused state of the marriage law, the people's mistaken belief that they may be married when they are not properly married, according to the State. They decide not to have any more children, to limit their family. What is their position if they go to the doctor and the doctor is well aware that one or other of them was married and went through a Catholic Church annulment? What is that doctor to do in those circumstances?
I know this is tiresome for the Minister and I am very sorry that we cannot just accept the role of being a rubber stamp. That may be the way we will be used but if there are points to be made they just have got to be made. That is my view of the thing. I am bound to say that my view with regard to the construction of this section is that a single person will not be deprived of the right which this Bill will give. I will give my reasons for that. My reasons are that we have here a criminal code where the singular person has been used in a Bill whose whole description implies a plurality. That is the word "family". The Interpretation Act will not be invoked or held by the court to extend that word "person" to make that single person a plurality so as to make liable in criminal law and subject to criminal sanctions of great severity the persons who, under this section, provide the single person with the contraceptive in question. I am bound to say that it would be just wrong of me not to say, no matter how much I may mislead or be misrepresented, it is my view that if that interpretation is placed on the section and if the Minister's statement that single people will be deprived, this will not entitle single people, in my view that would be a proper policy to follow for this State. I do not mind who misrepresents the position I have which I tried to explain in relation to other sections on the Second Reading. In my view it is bad law. It will be felt to be repressive. It will be divisive. It is unfair in all sorts of situations, some of which have been exemplified by other Senators, particularly Senator Robinson.
One obvious one that would affect the entire community is the case of the pair that are planning to be married. One person is single in that situation. Do you mean to say that in that situation it is to be a criminal offence to supply someone who is totally convinced of an absolute entitlement and of a clear intention bona fide to use contraceptives, it is to be a criminal offence to supply that personwho within some weeks is to be photographed in all the glossies as being wedded? That is an outrageous intrusion of the law. There is the matter of the alternative situation where it may well be that the Supreme Court would not follow what the dissenting distinguished Chief Justice said would finally be an individual citizen's right, that a right does not attach except to a person. If that view were not followed and if it is held to be a right in some kind of curious fashion held by a plurality which will expire with the mortality of one of the plurality and so on, if that were so, there will be by this Act, perhaps held by the Supreme Court, to be an invasion of a joint marital right because there is no requisition here on the person seeking the contraceptive to prove that he has the consent of the spouse in question if it is to be a marriage recognised by the State as the Minister feels. I do not think we should enact legislation which is not capable of being understood clearly by the legislators who are purporting to enact it. I dissent from that whole approach as being bad in law, bad public policy and bad for the country.
In the Bill introduced by Senator Robinson, to which Senators Keating and Harte subscribed, the Family Planning Bill of 1978, these Senators resorted to exactly the same wording as I am using. The Bill was described as an Act to facilitate family planning, to provide for the control of the importation and so on. In devising that legislation the Senators were quite happy to leave family planning undefined. I am on reasonably safe ground in doing the same. There may be difficulties in the implementation of this legislation. It may fall foul of the law. It may find problems in regard to the Constitution and to definition. If so, so be it. This is my best endeavour. Several people have tried to legislate and have failed. This is my poor thing but mine own. I believe it is going to work. I do not think that on the side of the authorities there will be any particular anxiety to examine every relationship and see if it is a bona fide marriage from the point of view of the law, the Supreme Court or anybody else. By and large, the term family planning will be interpreted in a reasonable sensible way. If somebody takes the legislation to the Supreme Court and it is found to be defective and struck down, then somebody else has just got to try again.
I made a mistake in something I said on Second Stage. I said there was no power under section 4 for the Minister to make regulations. That is quite incorrect. I am a little concerned that the provision for the making of regulations seems only to relate to subsection (1). The subsection is holding the pre-position—last thing I want from this debate is applause from anybody, I will be unhappy if I get any approval from anybody—but if I am taking the pre-position that I certainly want the regulations to cover those matters that are important, it is very important that there be maintained suitable protection for the immature. It seems to me—I hope the Minister will be able to correct me for my reading of the section — that his ability to make regulations relates only to subsection (1) of section 4 and does not relate to subsection (2) which is the subsection the Minister would have to use if he were to provide that the medical practitioner should not give 13-year-old girls contraceptives of any kind. This is my opinion on the matter, and the Minister has his.
I understood him to agree with me earlier today on this matter of protecting the immature and this whole question of parental consent and control to which I do attach importance. I did understand him to agree with me. I am afraid that he just does not have the power to do what I would believe is his desire, wish and intention to do. If I am correct in that it does seem to be a matter which the Dáil might examine. He would be just taking the extra power. For Opposition Senators to be looking to give Ministers extra power is not a matter on which we can get kicked too violently in the front or the rear.
I am not clear on Senator FitzGerald's problem. It seems to me that the regulations referred to in subsection (1), paragraph (a), are quite clearly restricted to subsection (1), but I am not sure what is the difficulty the Senator envisages in regard to subsection (2). If there is any particular difficulty there it might be ameliorated by section 16, subsection (1), which indicates that "The Minister may make regulations for the purposes of this Act in relation to any matter referred to in this Act as being subject to, allowed by, declared by, specified in or by or in accordance with regulations or in relation to any matter ancillary or incidental to any such matter."
It may well be that what the Minister has just said is entirely correct, but it really is very important, indeed, from the point of view of public policy. All my defence of the maintenance of family planning clinics and so on would most certainly depend upon controls of an appropriate kind being maintained in regard to the matter of the age of the people involved; indeed, I would go a little further about not pressing that parental consent element. On that, I think, the courts would have their own view, anyhow. I do think the Minister ought to be able to tell us, on Report Stage, that he most definitely has the power—I did not think he had, particularly when, in the section itself, there is a restriction, a specification of the subsection in relation to which the regulations are to be made. It would seem to me that by expressing something, you exclude what you do not express. It seems that the expression of the power to regulate under one subsection, and the failure to express it in relation to another subsection, implies that the Minister would not have the power to make the regulation under that subsection, and the general section with regard to regulations would not, I think, come in his aid. It is of very great importance in this whole matter.
The Senator's point——
I am very happy to leave that with the Minister. He is not a practising lawyer and he has available highly skilled advisers.
Just to clear where the difficulty is. The Senator is concerned that under subsection (2) there should be power to make regulations governing age and such matters?
Certainly age. That is the one which is my particular concern.
I would like to clarify any possible doubt arising from my earlier questions to the Minister about what I feel is the scope of this particular section. I would agree with Senator FitzGerald, in fact, that there is nothing in this section which would prevent contraceptives being prescribed, or authorisations given, to single people, provided the doctor was satisfied that it was for bona fide and family planning reasons. That is my personal interpretation. I certainly agree with him for the reasons he has given. What I was trying to do, at an earlier stage, was to ascertain what the Minister felt was the scope of the particular words used; they are his words and in his Bill. It is not really enough to say, at this stage, “That is my Bill, that is my piece of work. If the courts can strike it down, well, too bad.” On Committee Stage, we are all concerned to see what the possible loopholes or complications of the section are and to see if we can put down the kind of amendments that will correct these.
We may have another look at some of the matters raised on Report Stage and see whether there can be amendments put down. I do not wish to put down an amendment to the section for that reason, because I believe, like Senator FitzGerald, that it would be a totally unacceptable intrusion on the privacy of individuals to try to confine the availability of contraceptives to married people, either in the strict constitutional sense, the strict sense of the marriage law, or even in a sense of the kinds of marriages that are not real marriages in the eyes of the law in Ireland. I would also share a concern expressed by Senator FitzGerald to ensure that young people had adequate protection under our laws, but this is a very complex problem and one that is not really explicitly dealt with at all in this legislation.
I return to the question of the scope of bona fide family planning and this time to subsection (2) of the section:
A registered medical practitioner may, for the purposes of this Act, give a prescription or authorisation for a contraceptive to a person if he is satisfied that the person is seeking the contraceptive bona fide for family planning purposes...
When Senator Harte asked about this provision on Second Stage he was worried about the possibility that a married couple might not get such an authorisation or prescription. The Minister, as I heard him, reassured Senator Harte that there would never be a circumstance where a married person would be refused a contraceptive. Is that correct?
Yes, that is perhaps——
Senator FitzGerald is keeping an eye on my decorum, the decorum of my behaviour.
He is just checking the time.
The difficulty there is—and again I know it is one of the anomalies, the absurdities of trying to legislate in this way — if the doctor reads the Second Stage debate and the Minister's reply and says "Oh, I am never to refuse contraceptives to a married person" and a married person comes in and the doctor knows that that married person has not been living with his or her spouse for a very considerable time but is living with somebody else, or is not particularly living with anyone, what does the doctor do in those circumstances? This is the sort of fairly absurd situation we get into when we make doctors, as we are making them, the moral arbiters of the community. Can the doctor, in those circumstances, refuse the contraceptive to a married person? I believe that the section is riddled with these kinds of anomalies and contradictions and that we could catalogue many, many situations which do not conform to the Minister's perception of the section. Perhaps he would like to respond to that specific query. Is it enough for a person, going along for an authorisation or a prescription to a doctor, to say "I am a married person and the Minister says you cannot refuse it to me."?
I do not think I ever said that. What I intended to say—perhaps I did not express myself clearly—was that in the case of a family, a bona fide family, a genuine family—if you like, a husband and wife living together as a family—if they wished to have artificial contraceptives, the doctor's sole function is to advise them and guide them as to what is the appropriate best form of contraception in their case. Thereafter, the decision is theirs. In my view the doctor has no function in any way interfering with their decisions as to whether not to have children, or any particular number of children, or spacing of their children. If a husband and wife, living together as a family, seek artificial contraceptives, that is their decision. The doctor's sole function in that regard would be to advise them as to which would be more appropriate in their circumstances.
Part of the difficulty, at least, stems from the point that Senator FitzGerald made, that it is not a couple who go to a doctor in those circumstances; it is a person, as far as the section is concerned. It started in that way and that we have to take as the intent of it.
If a person who is a married person goes to a doctor, am I to understand that the doctor has to satisfy himself—and it may be more or less easy depending on his knowledge of the circumstances—that the married person who comes to him intends to use the contraceptives in the context of that marriage? Does there have to be a discussion about that? Does there have to be a certain satisfying of the doctor that the contraceptives are to be used within marriage? Let us take a married man who goes to a doctor to get an authorisation for condoms. Does the doctor have to satisfy himself that he will use those within the marriage?
No. The words used in the legislation are "form an opinion" but I do not think that that would particularly concern the doctor. I cannot deal with every possible situation that may arise. All I can do is give the principles to the Bill—that the availability of artificial contraceptives is confined to a family, in the normal meaning of that word, and for purposes of the size of the family, the spacing of the children, the number of children and so on.
If I could perhaps, take another aspect of this. The Minister has used the phrase "bona fide” family, genuine family” a number of times. Would the Minister accept the bona fide family planning of a couple who are living together but not married, who have been in a stable relationship and who have children, who, having had children, and intending to continue in that stable relationship, perhaps for tax reasons—which brings me back to my activity earlier in the day; it is, after all, cheaper now for a couple, or has been, to live together without being married for tax reasons. If a couple decide to live together without being married, because they will not come under the particularly penal tax provisions and they have children and then they decide they do not want to have further children, is that not a genuine family? Is that not a genuine and responsible decision and should they not be able to go to a doctor and get the necessary authorisation which we now would require if the Act came into effect?
I cannot comment on that.
Can the Minister explain why he cannot comment on that?
I can only say what my intention is, that it is a normal family as mentioned in the Constitution—a husband and wife living together in a family situation. I cannot add any more than that.
The difficulty of the Minister saying a normal family under the Constitution gets back to what I was saying earlier, that that is a very narrow perception of a family. That is the most restrictive perception of a family, or definition of a family, that we could choose, because it would exclude a lot of people who think that they are a married family. I certainly hope the Minister does not intend, and I do not think he does, to have that very narrow interpretation of the word family. He keeps using the words "normal and genuine family", and this is where I have very real difficulties; there are people who are perfectly, normal people, who have a perfectly good family relationship, and who are married in this country and who are intending to continue in that situation. We should be able in the approach to this legislation to bear this in mind.
One of the reasons why this is a fact under present circumstances, and likely to increase as a feature of our life, is that we do not have any provision for breakdown of marriage. We do not have any provision for dissolution of marriage in this country, so we have either a couple who, in my earlier example, choose whether for tax reasons or for personal reasons, not to marry but to enter into a stable relationship and to have a family in the physical and emotional relationship and commitment and who wish to limit the number of children and to regulate the spacing of their children. Or you may have a situation where one of the parties is married and has no way of terminating that marriage relationship, even though it has irretrievably broken down, and he is living with somebody else.
I do not think there is any Senator in the House who does not know of one or other of those types of families. Would we say that they are not stable, happy, normal relationships? It is not the fault of the people involved, every often, that they cannot regulate their situation under our law. I know of a number of instances where there is a stable relationship, where the parties would dearly love to marry, but are unable to do so because one of the partners of the marriage cannot end an earlier marriage which has irretrievably broken down. This is an increasing fact of life in Ireland. In regard to those stable couples, who have a happy home existence, who are satisfied with their relationship with each other, who are doing their best in the circumstances to bring up children in our society, are we to say that they are excluded from the provisions of this Bill?
It cannot be any easier for doctors to understand this section than it is for us Members of this House. We have an advantage over doctors. We are used to looking at sections of a Bill and some of us have the further advantage of training as lawyers. Doctors who are confused about it may very well have difficulty in knowing whether or not the Bill extends to those circumstances. It seems clear to me, from what the Minister said, that in his opinion it does not extend and they would not be complying with the provisions of the Bill if they did prescribe contraceptives, or write an authorisation in those circumstances. This just shows, explicitly, a further encroachment by this legislation on the privacy of the individual, on the responsibility of a couple. It seems to be in some contradiction with our commitment externally because I said on Second Stage, that Ireland signed the "Teheran" Convention in 1968, which recognised the right of couples to regulate the number and spacing of their families and also a right to education about methods of family planning, and were a long time making that available either to couples or to married families in Ireland.
Is the section agreed?
I would ask the Minister to give some information on the point I made earlier, about the pill being prescribed for someone who required it for reasons not at all associated with family planning purposes.
Put down an amendment for Report Stage.
The Minister has more brains at his disposal for drafting amendments like that, if he would consider it. I certainly will give some thought to whether I consider an amendment appropriate, but I would have more trust in the Minister's advisers.
My amendment with regard to section 5 was too drastic. My objection is to subsection (1), paragraph (a), this dreadful subsection permitting importation on a personal basis. It is a silly subsection, with embarrassingly laughable criteria, that a person may import contraceptives for personal use, but the quantity named then is not such as to indicate that they are not solely for his own use. This raises the appalling situation as to who is to decide this — the customs man? The implications of it are so terrible, so embarrassing, even to talk about, so farcical. The Minister should remove the latter words from that subsection and leave it to read that "A person shall not import contraceptives into the State unless ...they are part of his personal luggage accompanying him when he is entering the State." That is bad enough but to go on and leave in the order words, so that a customs man has to decide whether the quantity he has with him is likely to be for his own use or not—it defies belief.
I was allowing the Minister possibly to come in in defence of this subsection if he wishes to, at this stage.
It needs no defence from me.
