Tairgim leasú Uimh. 2:
I leathanach 5, líne 25, An Sceideal, Cuid I, "chomhceart" a scriosadh agus "réamhcheart" a chur ina ionad,
I leathanach 5, líne 31, An Sceideal, Cuid II, "equal" a scriosadh agus "prior" a chur ina ionad.
I move amendment No. 2:
In page 4, line 24, Schedule, Part I, to delete "chomhcheart" and substitute "réamhcheart",
In page 4,line 30, Schedule, Part II, to delete "equal" and substitute "prior".
In introducing this amendment I will do the same as I did on the previous one, introduce it with a brief speech and retain the right of reply so that I may deal with any points that arise during the debate. I am glad the Minister is present. I realise that other business prevented him being here earlier this afternoon but, perhaps, as has been suggested by Senator Higgins, myself and other Members, now that the Minister is here we may get some answers to the questions we have been raising. My second amendment seeks to delete the word "equal" before "rights" and put in "prior". This may seem to be in a sense a negation of suggesting the right to life of the unborn in saying that the mother should have a prior right but when I explain what I have in mind it will become clear that in no way am I trying to say that the unborn do not have rights or that their rights would be overruled in all cases. There are cases, and these cases do arise despite the efforts of all to pretend that they are non-existent or can be ignored, where there is a definite conflict as to actual life between the mother and the foetus. Saying we have equal rights is medically difficult or impossible to decide and legally speaking is unjustifiable. If we have people with equal rights how do we decide whether we should preserve the life of the mother or let the mother die and preserve the life of the foetus?
It is important that we should sort out this question. I would consider that there are real worries in this area about the danger to life of mothers. Last week on Committee Stage, Senator Eoin Ryan said virtually that no one could possibly imagine a doctor letting a mother die because of a legal quibble or because of the amendment. I have a lot of sympathy with what Senator Eoin Ryan said and on a practical level he is probably right but that is not to say that it is not asking doctors simply to act outside the law, rather asking them to act in a way that they see as humane but do not see as legal. This, again, is the question of an Irish solution to an Irish question, like in the area of contraception, where we bring in a law which is supposed to say one thing, and we all whisper behind our hands, smile and say that is not the way it will work out in practice; we will not really do this. As a lawyer I have great objections to this procedure where we bring in a law and at the same time say to people that they do not need to take too much notice of that; we will go on in our own old way whether it is legal or not. Jurisprudentially speaking we want a law to be accepted by people, to be respected by people so that people will think it is their duty to obey the law, not their humane duty to get around the law. It is a very bad precedent to put in front of the public that we are saying we will create a law but we know perfectly well, of course, those of us who are in the know, that this law will not necessarily be obeyed. Then we say to people, it is evil to evade taxes; it is evil to park a car in the wrong place. How can we expect people to respect the law if we are setting the example as legislators and saying we bring in one thing but, of course, we know that something else will happen. By bringing in this amendment I am trying to make people face up to the reality of things, that there are situations where we decide between the life of the mother and the life of the foetus. That includes what are known as the Catholic exceptions of ectopic pregnancy and uterine cancer because these, as I will point out later, are not legal exceptions, they are simply theological exceptions.
Despite what Senator Eoin Ryan says that no doctor will stand aside, that commonsense will prevail and no doctor will allow a mother to die because of the amendment, it is nevertheless true that many leading doctors, including those quoted by Senator Higgins and myself earlier, have expressed doubts about the legality of present practice if they are faced with this amendment. Among these is the Master of the Rotunda Hospital, the oldest and one of the leading maternity hospitals here. Surely, we must pause to question what we are doing if the Master of the Rotunda is prepared to stand up and say he would have grave doubts about the things that are practised in his hospital now if the constitutional amendment is passed. These are the cases I referred to last week where mothers are suffering from acute high blood pressure and kidney disease, where one has to decide at about the twenty-fourth week of the pregnancy whether to remove the foetus by caesarean section and thereby ensure the survival of the mother while putting the foetus at risk; while it may survive, it may not survive, on the other hand, making sure of the survival of the foetus and leaving the pregnancy carry on virtually condemning the mother to death.
I would point out that when we are talking in terms of hospitals, maternity hospitals and what is done in hospitals, we are not just dealing with leading obstetricians, leading gynaecologists, family doctors and so on: we are dealing with hospital administrators and nurses. If we look into this we will find that hospital administrators and nurses here exercise a great deal of power in hospitals. One has only to look at the situation of the common contract which was brought in by the Department of Health and see what has happened in the what I would describe as Catholic hospitals where we have the position of leading respected doctors going along in St. Vincent's Hospital and saying: "I want to sign the common contract". They are told by the administration of the hospital: "You may not sign this contract because Archbishop Ryan says you may not". I have raised this important question in the House before. Hospital administration is very heavily influenced by considerations other than the good of the patient, considerations of what they see as being morality. The fact that one's doctor says one should have such and such an operation does not necessarily mean that one will actually get it in many Irish hospitals. Very often the reason why one does not get it is the reason of other people's morality, not medical needs or the person's own conscience but what other people say and the other people are not necessarily the person's doctors.
The same thing applies with nurses. Several cases have come to my attention, and the attention of one of the Ministers of State in the Minister's Department, where a woman's doctor recommended say a hysterectomy and she was sent to a hospital to have that carried out. Her doctor may be clear as to what she needs and she may be clear as to what she needs but the nurses in the hospital have said:
"We are not going to carry this out because this woman is too young; she could still have more children; we are not going to do this and we are objecting to it."
If we bring in this Constitutional amendment as worded we not only create difficulties for the doctor but we also put it into the hands of hospital administrators and nurses who feel that way to say: "All right, you may think doctor that this lady's pregnancy should be terminated but we think that this is unconstitutional; we think that this is illegal and, therefore, we are not going to do it for you, or we are not going to give you a theatre to do it, or we are not going to facilitate you" and so on. It is essential that we make clear in the legislation we pass that in a situation where the actual life of the mother is threatened she has a greater right to life than the foetus. It may be suggested that I am arguing theologically wrongly but I do not think I am arguing socially wrongly. Apart from the women, I ask any of the male Members of this House, most of whom are husbands and fathers, whether they would actually stand by in this situation and say: "I want my wife to die". I do not believe for one instant they would and I have talked to quite a number of them about it. Members who have very strongly justified feelings about abortion in this situation would not press the matter saying: "Kill my wife". That is what we are talking about. It does not, perhaps, occur in an enormous number of cases but if it is one's wife it does not matter, or one's mother it does not matter if it is one in a thousand or one in ten thousand: she is still a person.
In all the speeches on this subject it has been presumed that the mother's life will be saved. It is presumed that the law will not be changed. It is presumed that we can go on dealing with ectopic pregnancies, kidney disease, high blood pressure and cancer in the way we have done it all along but this is a very big presumption to make. I am suggesting we should make it quite clear that that is what we want, not that we should just leave it hopefully and say that perhaps the courts will decide this or that. The courts are there to interpret the wording that is put before them. They are not there to listen to Senator Eoin Ryan who has said in the debate that any doctor is bound to preserve the life of the mother, or to listen to any one else who says the law will not be changed. They are there to interpret the wording as it is put in front of them in the light of legal argument put to them in a particular case. The legal argument put to them has to be based on the actual interpretation of the wording. The legal argument cannot go into saying that the intention of so and so was this or the intention of so and so was that. If we are not willing to he quite clear about this. are we just pretending to ourselves that we are going to say in this situation the mother's life will be saved or are we really envisaging a situation where we are going to say, well, perhaps, the mother's life will be saved and, perhaps, it will not be saved? If that is what we want, that is what we should state clearly.
When the Taoiseach expressed fears about this and said that the enactment of the present wording before the House would, possibly, endanger the lives of mothers it is obvious that he was quite sincere in saying this. However he was attacked fiercely in particular by the doctors who are attached to the pro-amendment group. They said they were absolutely convinced that what they were doing was not at present illegal. They said they were absolutely convinced they would not have to change their own practice and so on but I would point out first of all that these doctors are not legal experts but they may be medical experts. They know perfectly well when they should be preserving the life of their patient, and they are doing so, but they are not legal experts and they do not know whether what they are doing or what they would do under this amendment would be legal or not. Secondly, virtually the entire of their argument is based on this double-effect theory which may well be theologically sound but certainly has absolutely no effect in ordinary civil law. It does not mean any more than if I said when I shot a man, I really did not mean to shoot him, the effect I was intending was to create a nice air hole in his chest. That does not get me off the hook of accepting the normal consequences of what I have done. Equally so, if the normal foreseeable consequences of what one has done is to kill the foetus than one must be accepted as intending that.
One cannot say, because of the theory of double-effect, I did not intend it. As far as that is concerned to an ordinary person, as opposed to a theologian or a doctor who is steeped in theology, this does not really make ordinary sense. If one wants to see what it looks like to, perhaps, a sort of cynical eye those Members who read this sort of magazine or might try reading this sort of magazine should try reading the current copy of In Dublin. In that publication Nell McCafferty has written an article about this kind of theory saying, “Ok, if you have an ectopic pregnancy so you remove the fallopian tube; you do not actually touch the foetus so you cannot be said to be killing the foetus.” But, of course, you are leaving the fallopian tube on one side and letting the foetus struggle to death in it. Of course, that is not abortion because one has not actually killed the foetus. I cannot see, any more than she or most ordinary people can see, that that is not an exception to the rule about abortion. The double-effect theory seems like that to those of us who are not surrounded by clouds of arcane theological casuistry.
These doctors may very well be wrong in law. They probably are wrong in law. I am suggesting that by accepting this amendment we should make certain that in these cases where medical necessity requires that the life of one or the other, the mother or the foetus, has to be chosen we should make sure it is the mother's life that is chosen. I do so for the reasons Senator Robinson mentioned earlier this afternoon. Are we to place the life of the fertilised ovum at the very beginning of pregnancy in the fallopian tube as being of greater value than the life of the mature woman? I do so also for the social reason that very often the mother we are talking about is a mother who already has children of her own who need a mother's care and would be deprived of their mother if she was allowed to die for this kind of reason.
It will, obviously, be said that I am scaremongering, as was said of the Taoiseach, that I am creating a problem that does not exist, that I am exaggerating about what is going on, but I do not think I am. The idea in law of saying that X and Y have equal rights is something that is very difficult to litigate. How can a court decide between X and Y who have equal rights? What can they do but stand aside and say well, we have to leave things happen as they are. How can they say one must take this action or one must take that action if they both have equal rights? On this account I am suggesting that if we replace the word "equal" with the word "prior" we are still talking in terms of the actual life of the mother. We are not suggesting by this wording that we are taking into account all sorts of other factors; we are just talking in terms of life. We are deciding in these cases where there has to be a choice that the choice should fall in favour of the mother. This has been tacitly or openly accepted as normal practice and as being desirable by both sides of the House and by large numbers of the medical profession. I am simply suggesting that we should put this into law rather than leave this definitional gap again, leaving the whole thing as an area of doubt.