Seanad Éireann debate -
Wednesday, 11 Mar 1992

Vol. 131 No. 15

Amendment of the Constitution: Motion (Resumed).

The following motion was moved by Senator B. Ryan on Wednesday, 4 March 1992:

That Seanad Éireann, recognising that Article 40.3.3º of the Constitution has served no useful purpose, mindful of the uncertainty of interpretation which has resulted in such unnecessary trauma for a young girl and her parents, aware that the ban on certain types of information which has resulted from this article may endanger the lives of some Irish women, calls on the Government—

(1) to seek all-party support for a referendum to delete Article 40.3.3º from the Constitution, and

(2) to provide a comprehensive counselling, advice and support service for all women in crisis pregnancy situations.

Debate resumed on amendment No. 1:

To delete all words after "Seanad Éireann "and substitute the following:

"resolves to defer detailed discussion of Article 40.3.3º of the Constitution until Members have had an opportunity of studying the full text of the Supreme Court Judgment interpreting its application in the recent case of a fourteen year old rape victim. (atógáil)".

—(Senator Doyle.)

Mr. O'Toole

Is cinnte go raibh iomad deacrachtaí againn an tseachtain seo caite, ag tosnú ar an moladh a cuireadh i láthair dúinn ag an Seanadóir Brendan Ryan, agus caithfidh mé a rá gur chuir sé ionadh mór orm an tseachtain seo caite nach raibh taobh an Rialtais sásta labhairt ar an rún. Tá súil agam go labhróidh an tAire Stáit anocht.

I will have plenty of time in eight minutes to deal with the issues that I want to deal with and I would hope that we could keep away from the divisiveness which has been part and parcel of this debate since 1982. I hope that we will address this issue in a positive way as parliamentarians seeking to resolve a legislative difficulty by legislative means. We should keep far away from name calling undermining authority and reputation and damaging activities which took place in 1982 and 1983. As I said last week, many of us suffered badly from the lines we took at that time.

At that time I was opposed to the amendment to the Constitution, and my position remains unchanged. That does not mean that I grow horns or am any less caring about life born or unborn, than the next person. A number of things have become clear over the last number of traumatic weeks during this extraordinary debate, which began when a 14 year old child, suffering from the most intrusive and traumatic type of sexual abuse, became pregnant. As I said last week, the lesson for all of us to learn from that time was that were it not for the fact that she became pregnant the abuse she had suffered would never have become public, because her parents were not aware of the abuse until they became aware of her pregnancy.

I would like to make a number of simple points. In any development that takes place as a furtherance of this debate, in any legislative manifestation of the views of the Oireachtas, we should make it absolutely clear that the right to travel outside the boundaries of the State for whatever reason should never be prevailed upon, should never be constrained, and that it should never be proper to hold somebody back who wishes to leave the State. Any attempt to do otherwise is simply to move in the direction of a police state. It is important to note that all sides of this debate accept that that would be regressive and unacceptable. There are many sides to this debate, but I think there is a consensus on the fact that the right to leave the State should be protected and we should underline that fact tonight.

I also believe that every effort should be made to find consensus in this debate, every possible effort should be made to find an agreed way forward. I welcome Senator Ryan's motion in as much as it attempts to find parliamentary consensus on moving forward. I must say that I was particularly disappointed with the reports today from the Leader of the main Opposition in the other House who took issue with the Taoiseach because he had been given something verbally rather than in writing. That kind of thing does nothing to enhance the debate or bring it to an acceptable level, and I regret that politicians are now beginning to find ways of political manoeuvring in this debate, which cannot be dealt with in that way. Let us be open, straight and direct. Let us express our views. Let us push our views as far as possible and then let us accept the democratic procedure.

I note that Senator Hanafin is going to speak in this debate. I imagine there are many things he would say with which I would take issue, but I will not take issue with one fact: his certainty, his directness and his commitment to the point of view he offers. Nobody can take issue with him on that. I might have a difference of opinion with him, but I certainly respect the honourable and direct way he makes his points, I wish that all the people who share his point of view would do the same thing. I appeal to him and the others to avoid division on this issue and move away from moralising at and towards each other.

Can we accept the good faith of people who are trying to find a resolution to an extraordinary problem? Can we accept that at the end of the day such consensus will demand movement, compromise and political judgment from all sides, and that that becomes a priority?

Whatever legislative initiatives are put into place, whatever legislation is enacted, I ask that they reflect a compassionate approach on the part of the State towards the difficulties that victims of sexual abuse find themselves in time and time again. That is a real issue. This is not a black and white debate. Anybody who presents it as such is being less than honest in view of the extraordinary complexities and difficulties which we have been trying to resolve over the last short period of time. This issue will need to be addressed in a context of compassion, of a caring and responsible legislature and it should not be driven by the so-called morality of a small group. It should reflect the views, the honestly held opinions, the cares and the responsibility of all sections of our society.

I have one final point to make. I started by saying that the right to travel should be protected because any attempt to curtail the right to travel is simply a progression into a police state. Similarly, I would say that the right to information on any particular subject should never be restricted, that people have a right to know, that people have a right to access to information in order to make the best decision. Whatever that information is, it should not be restricted in any way. I hope that whatever points are made in the discussion here tonight or in other places, we should hold sacred the right of people in difficulties to seek all the information available to allow them to make the best decision, taking into consideration all aspects of the problem, be they physical, mental, academic, moral or whatever.

I hope there will be a greater participation by the Government side tonight and that the Minister will make a contribution. I make four simple points: the right to travel, the hope that there will be a consensus and no division in dealing with this problem, the right to information and the need to address this in a compassionate, caring and responsible way.

Mr. Hanafin

I wish to acknowledge and thank the previous speaker, Senator O'Toole, for the kind remarks he made about me. I hope the debate for however long it lasts in the coming months will continue in the same spirit, without rancour, bitterness or unkind words. There is no necessity for it. Certainly, there will be nothing unkind said on our side and we will respect the sincerity of the other person's point of view at all times. I hope it will continue in that spirit.

There are some points I would like to make and to put on record. It is proper that, again, I should mention that Article 40.3.3º was adopted by a two to one majority by the people in the 1983 referendum. It is beyond dispute that those who voted for this amendment intended to prevent legalised abortion being introduced into the State. Indeed, the overwhelming majority on both sides of the debate were opposed to abortion and this was pointed out in this House and by many media commentators at that time.

The purpose of the amendment as universally understood by all sides was to give constitutional backing to the right to life of the unborn, so that neither the Oireachtas nor the courts could legalise abortion without reference to the people. The amendment itself was drafted by the Government of the day, presumably in the office of the then Attorney General. The pro-life movement had no input whatsoever in the drafting of the amendment. It was not consulted in any way about the text, nor was it shown the text before its publication. However, after careful study the pro-life movement welcomed the form of words produced by the Government and believed that it adequately met the objectives of the amendment.

In particular the amendment stated in positive terms the right to life of the unborn and undertook to defend that right, consistent of course with upholding the established constitutional rights of the mother. The amendment also left unaffected medical practices in regard to life-threatening conditions requiring medical treatment which might have the undesirable result of ending the unborn life.

This amendment inserted in Article 40 protected the right to life before birth in the same way that the right to life of the citizen was also protected. It was an appropriate form of words and was widely welcomed. Although another Government proposed an alternative form of words, a formula which would have allowed the Oireachtas to legalise abortion, the original amendment was approved by a large majority in both Houses and by the people in a subsequent referendum.

This amendment has stood for nine years without challenge. None of the unfortunate consequences forecast at the time has been realised. It became an accepted part of our Constitution, reflecting a value deeply felt by the Irish people. After nine years, however, the clear objective of the amendment and the clear consensus of the people have been defeated by a Supreme Court judgment. The extraordinary circumstances where by the recent distressing case came to the attention of the Attorney General, and ultimately to the Supreme Court, could not have been anticipated by either side; nor did either side contemplate that the amendment might ever be interpreted as conferring a right to abortion in the case of a perceived threat to the mother's life through suicide.

It is perfectly clear that the Supreme Court decision has effectively introduced legalised abortion and on grounds that could lead to quite widespread abortion. One obvious reason is that it would clearly be impossible to sustain a prosecution against someone arguing he had acted in good faith in believing a suicide threat constituted a substantial risk to the mother's life.

Nothing can be gained by simply disagreeing with the Supreme Court; it has the last word on the matter. Nor can the position be restored by legislation since legislation would have to be in line with the Supreme Court decision. The most any legislation could do would be to try to set limits to say that abortion could only be carried out up to, say, 12 weeks; or to prescribe that, say two psychiatrists had to verify the reality of the threat of suicide. Even then such limiting legislation would inevitably have to be referred to the court for a test of its constitutionality in the light of last week's permissive finding. Whatever the outcome, the country would still be faced with the situation that abortion had been legalised in direct opposition to the manifest intention of the people in enacting the amendment and to the overwhelming desire of people on both sides of that debate.

Removing the amendment is not the answer. Article 40.3.3º contains a wholly desirable and proper safeguard for the right to life before birth. This is a necessary safeguard in a world where the trend has been for so long against upholding the rights of the most vulnerable and defenceless. The right answer is not the deletion of the amendment as proposed in the motion but rather strengthening it. The solution is to amend the Constitution so as the restore the position to what we believed it to be before the recent judgment, to bring the Constitution in line with the intentions of those who voted for the amendment in 1983. This can be done by a simple addition to the present text of Article 40.3.3º. The drafting of this addition would, of course, be a matter for Government, but it would simply add a prohibition of intentional abortion to the existing positive statement of the right to life of the unborn.

I believe there would be now widespread support for such a move. Many people are appalled at the implications of the recent judgment and they should be given the opportunity to restore the protection against abortion which they wished to insert in the Constitution. Support for such a referendum would come not only from all those who supported the amendment in 1983, but also from very many who voted against the measure but who never dreamt it would be interpreted in such a way as to permit abortion.

Abortion is, of course, a divisive issue because it forces us to examine our fundamental values and how we wish these to be reflected in our laws. This is not just an Irish experience. Every country has its abortion debates and the issue has to be addressed again, perhaps in every decade, as old arguments resurface and a new generation seeks to define its values. It is an appropriate subject for decision by the people and it is a strength of our democracy that the opportunity to consult the people is available. I believe that the people should be given the opportunity to make the law harmonise with their clear wishes. A referendum on these lines is an essential and straightforward solution.

Finally, it is worth emphasising that, while I and my colleagues in the pro-life movement reject abortion, our quarrel is never with the individual who feels driven to consider it as a solution or who wishes to travel for whatever reason. It is rather with those who believe that the intentional ending of unborn life can never be the right answer to a human problem or in any circumstances an acceptable option. While rejecting firmly the idea of providing assistance to obtain abortion, we fully support the availability of counselling services to assist women in crisis pregnancy situations. Such counselling services already exist on a nationwide basis provided by marvellous organisations staffed by wonderful people. The organisations I have in mind are Life and Cura. Information on these services is widely available and may be found in almost every church in the country.

Dr. Upton

Since the debate was initiated last week the Supreme Court has made its judgment and that has lent a considerable degree of clarity to the issues about which speakers last week were only in a position to speculate. Since last week the debate has moved on and it now looks as if the Government are going to adopt a holding position which they hope will allow them to satisfy our European partners and to allow the Maastricht Summit to be ratified.

The Government's proposals in this matter are still fraught with a lot of difficulties. The new Protocol will require the agreement of all the European member states. This raises the possibility that other member countries may also seek to renegotiate parts of the Treaty for reasons which relate specifically to problems which exist in those countries and which have nothing to do with the matters which have been debated so vigorously in this country over the last few weeks.

There is also the legal opinion that the present Protocol as leaked may not even guarantee the right of travel because of certain legal considerations. I am not a lawyer and I am not in a position to make a definitive statement on that; I simply refer to opinions which have been published in this morning's Irish Independent by Richard Humphreys, in particular that the changes proposed by the Government do not allow obtaining of information about abortion facilities in other countries while it is clear that the proposals the Government are now bringing forward will allow people to travel to avail of those facilities.

I find that very difficult to understand and it certainly seems to me to be fraught with danger in as much as there is a provision which will allow people to travel to foreign countries to obtain a service about which they do not appear to be entitled to obtain any information until such time as they get to that country. That is particularly difficult in an Irish context, where it appears that quite large numbers of Irish women leave this country to have abortions over a very short period and in a manner in which they want to conceal the fact that they have left the country at all. In those circumstances the fact that these women are not entitled to information about the facilities they are about to avail of is unfortunate.

I must compliment Senator Hanafin on the easy, calm tone which characterised his address here this evening. The Eighth Amendment of the Constitution has created an inordinate amount of trouble and it is difficult to understand why people who insisted on the introduction of the Eighth Amendment of the Constitution should now again appear to be suggesting that we have another amendment of the Constitution. Those people who supported the introduction of the Eighth Amendment of the Constitution did so — and I hope I am being fair to them when I say this — because they did not trust elected representatives. I think that is a fair comment. They got their way, and look where we are now. Very clearly, by their standards, they seemed to get the whole thing wrong. I find it difficult to understand why these people, or at least some of them, should now appear again to be very anxious to have another referendum foisted on the country. I believe that if such a referendum did take place it would liberate very unpleasant forces, and I believe it is in the national interest that those forces should be kept in check.

At the time of the 1983 referendum the Labour Party opposed the pressure groups who wanted to introduce that amendment. Indeed, the late Frank Cluskey was perhaps the only party leader, certainly he was one of the very small minority of politicians at that time — who did not succumb to the pressure which was being exerted on politicans of all shades of opinion. The Labour Party in those days got very little thanks for the position they took. Indeed, some members of the party who had to contest elections were subjected to a form of abuse which was disgraceful by any standards. I do not want to see a repetition of those types of events, nor for that matter do I want to get engaged in rancorous exchanges. I am very pleased, therefore, to observe the tone Senator Hanafin took this evening.

I have no great problem supporting calls for the deletion of Article 40.3.3º of the Constitution. My party, the Labour Party, opposed the insertion of those provisions in the Constitution in the first place. However, I believe that a debate on a referendum to make such a deletion would give rise to a great deal of difficulty. Accordingly, I am pleased that the proposers of the motion are suggesting that, if such a deletion takes place, then it should take place only after party agreement. I would certainly share that view. It is desirable that such changes should take place only after all party agreement. If all party agreement were not obtained we would then be in for a very unpleasant replay of the ugly debate which took place in 1983. I would have very serious doubts as to the outcome of another referendum designed to remove those provisions from the Constitution if it were to take place in the near future.

It is only fair to say that there is an immediate and very serious problem facing the Government in the form of the necessity to ratify the Maastricht Treaty. This question should take precedence over a referendum which would be designed to remove or delete the provisions of Article 40.3.3º from the Constitution. The Government have no alternative now but to address this matter and they are forced to address it in political terms in a relatively short space of time — a few months.

The Government are at present in the process of attempting to formulate an amendment to the Protocol which could be inserted as an adjunct to the Treaty. There are still a number of difficulties facing the Government in relation to getting such an amendment agreed. I would suggest that perhaps the best way out of the immediate problem may be to include a clause in the Protocol which would allow for freedom to travel and the right to information on services lawfully available in EC countries where somebody is travelling to avail of those services. I support the provision of a comprehensive counselling, advice and support service for all women in a pregnancy crisis situation. That is very much to be welcomed.

It is a great pity that some women are, in effect, abandoned in such a crisis. It is widely believed that many women seek abortions because of the absence of adequate information and advice to women during the early stages of pregnancy. Indeed, the maintenance of ignorance and perhaps even the cultivation of a climate of ignorance in the area of sexual behaviour has been an important factor in the genesis of conditions which result in approximately 5,000 Irish women going to Britain each year to procure abortions.

I also join in the appeals for a calm and sensible debate. I am confident that my party will not seek to exploit any political opportunities arising from this serious issue.

Mr. Cullen

We are faced with a very difficult and detailed discussion on the outcome of the Supreme Court judgment. When this motion was put down last week, we did not have the benefit of that judgment. I would point out that to push this motion to a vote this evening would be unhelpful in the context of the debate. I do not see any need for it at this stage. Given that there are five judgments involved and given the implications for the Protocol to the Maastricht Treaty, we need time for reflection and discussion with great sensitivity being shown on all sides. It is clear this evening that everybody is approaching this subject with those values. To push this to a vote here tonight would not be a helpful way forward given the excellent conciliatory tones adopted by everybody this evening.

Mr. O'Toole

Is that amendment being pushed?

Mr. Cullen

It is in the name of Fine Gael.

Mr. O'Toole

Seconded by the Progressive Democrats.

Mr. Cullen

The judgment raises many issues which need to be discussed in a mature, sensible and Christian way. Because the pro-life faction adopted one side of the argument, the implication is that if you are not on that side you are anti-life. I reject that implication on a personal level and on behalf of everybody who would like to have a consensus on this issue. The title "pro life" is somewhat misleading in that regard and in regard to the right to life of a young person in a very difficult pregnancy, no matter how that pregnancy occurred. Seeking to ensure that the mother is guaranteed her right to life is also pro-life.

We have to deal with the Protocol to the Maastricht Treaty. There has been a great deal of discussion at Government level about the wording of an amendment to that Protocol. It is not clear whether amending the Protocol is the best possible solution to this difficult problem. It is my view that the removal of the Protocol in its entirety is the best, cleanest and most sensible course to adopt, because the Protocol was inserted as a consequence of Article 40.3.3º of the Constitution. Our understanding of what that amendment to our Constitution meant has been fundamentally altered. The Supreme Court judgments negate the reason for the Protocol. It is on that basis that I believe the best way forward is to remove the Protocol in its entirety from the Maastricht Treaty which, in large measure, is a separate issue and raises very important economic issues. The majority of the population fully support that Treaty but it would not be helpful if the debate centred on the Protocol. That danger exists. There are other ways for us to handle this issue. The resolution of this problem rests with the legislators.

I reiterate that the best way forward is to delete the Protocol from the Maastricht Treaty. I do not believe that any of our European partners would have any difficulty with that. It would not impinge on any of the other 11 member states in the EC nor would it prevent them raising other issues. It would be a clean and fair way of dealing with it and it would be in our national interest to do so.

There are a number of issues I want to deal with this evening. The first is the right to travel. As a citizen of Europe as well as a citizen of this country, I have the right to travel, and that right is enshrined in European law. People seeking to leave this country should not be prohibited from doing so. In other words, they should not be restricted under the Constitution or under Irish law from travelling to any EC country. The legislators must move quickly to establish the right to travel. There are no grounds on which to restrict the right of travel and I do not think that Irish people want that. That point must be clarified. The right to travel should not be restricted under any legislation.

I listened very carefully to Senator Hanafin. He spoke about the right to information. As citizens of Ireland and Europe, the right to information is an essential ingredient in freedom of expression, freedom of belonging to the sort of country and community we live in. It is not in the interest of people on any side of this debate to restrict that sort of information. If a proper information service were available giving information on abortion and its consequences, my guess is that rather than being a factor in people deciding to terminate a pregnancy, it might cause them to decide against that course of action. The reality is that many of these people who leave the country are young and immature and no matter what counselling they might get in the United Kingdom they would find it next to impossible to change their minds and return home without having fulfilled their intention of terminating pregnancy. In many instances, some of the young people involved would have raised money to finance their journey through borrowing from friends and, as a result, would nearly feel obliged to carry through the termination of pregnancy. That is something those who call themselves "pro life" should consider.

In fairness to Senator Hanafin, he dealt very calmly and objectively with the argument he put forward this evening but it was a little mischievous to suggest, as he did, that all the information is available in this country. It is not, and that is the reality. It is unhelpful to mislead on that point. The right to information and the right to travel are sacrosanct and should, unquestionably, be available in any future action we might take.

I want to make it clear that I do not in any way support abortion. I would be totally and utterly opposed to that course of action for my family. However, people should have the right to make that judgment for themselves and should have available to them the best possible counselling and information regarding the consequences of continuing with a pregnancy or terminating it.

Article 40.3.3º of the Constitution has not produced the result that was intended and a way forward must be found. The best way forward is to get a consensus, sensibly and sensitively, on this issue. I appeal to all sides of the debate to allow time for calm deliberation. That is what we need. We do not want sudden reactions to a given situation. The issue of whether Article 40.3.3º of the Constitution should be removed in its entirety or, if amended, in what way it should be amended needs long and detailed discussion.

I believe in the right to choose. I do not believe that I as an individual or as a parent have the right to enforce my views on any one. I do not believe the Constitution or legislation should force people to do things in a certain way. The right to choose in such matters is a fundamental right. A reasonable and realistic outcome would be if the right to travel, the right to information and the right of choice was the consensus view that emerged from this very difficult and sensitive debate.

Mrs. Jackman

I welcome the Minister of State, Deputy O'Dea to the House coming as I do from his constituency. I wish him well in what is a very challenging portfolio. I know the delight with which his supporters have viewed and enjoyed his promotion. I wish him the best of luck.

Given the complex judgments of the five Supreme Court judges it is obvious why Fine Gael tabled an amendment proposing to defer detailed discussion of Article 40.3.3º of the Constitution until Members had the opportunity of studying the full text. We welcome the proposed full day's debate on the issue in two weeks time. That will give us an opportunity to study the full text of the judgment as well as the proposed wording of the amendment to the Protocol to the Maastricht Treaty by inserting a right to travel for Irish citizens.

Though we appreciate Private Members' time, it is inadequate to debate something which has consequences for us in relation to our Constitution and EC membership in this way and it was with that in mind that the amendment was put forward by Fine Gael. We are aware now of the complications and difficulties associated with discussing it because the most learned lawyers are still debating the issue. One has only to look at the newspapers every day to see the prolonged, protracted, differing interpretations of the five judgments and the additional problem of the Maastricht Protocol.

The action that is needed is as follows: first, we need legislation to define the scope of the circumstances in which following the Supreme Court's interpretation of the Constitution, abortion is legal. In other words, there is a need to define the terms under which conditional abortion might be lawful, for example, the length of time of the pregnancy and the limit of the time when abortions may take place. All of these issues are extremely important and must be spelled out.

Second, we need either constitutional or legislative action to put beyond any doubt the right of every citizen to travel freely. In today's world, the right to travel should be an inalienable human right, not one which can be conferred or taken away by the Constitution or the courts other than in cases where persons have been convicted of criminal acts in this jurisdiction or have been released on bail.

Third, we must resolve any doubts about possible interference by the Maastricht Protocol in the right to liberty of our citizens. The need for consensus is obvious to all political parties. In this House it is essential. Senators debating this issue last week did not have the opportunity to read through the lengthy deliberations of the five judgments. The contributions made by Senators were excellent but Senators were at a disadvantage in that regard. That is the reason why the amendment was put down.

The immediate issue regarding the Maastricht Treaty is of major concern to not just the Irish public but to Members of the European Parliament. Legal advisers are working day and night and are on radio and television from Brussels giving their views. The other 11 member states are deliberating and advising because they will have to be taken into account when we are dealing with the wording of the proposed amendment to the Protocol. The fact that international attention has been focused on this controversy will surely concentrate the Government's mind to convince our fellow EC members of the need to support any proposed change to or amendment of the Protocol. It is interesting that the Protocol has as much legal force as if it were part of the main body of the Treaty. People must be aware of that.

We must realise that although we are an island, we are part of Europe. We must grow up as a nation and realise that we are in a time of change. The cold, clinical, civil laws under the Maastricht Treaty will decide our fate in the future. If we have moral dilemmas we must separate them from the laws that we will accept when we vote in the Maastricht referendum. From now on we must be an adult nation.

The Treaty of Rome has been in force since 1957. This new Treaty could last for 30 years or more. We are not voting for something that will fizzle out but for something that will last our lifetime and longer. We must be conscious of what the Maastricht Treaty means and the importance of the Protocol. Any wording to amend it must be copperfastened. Our conscience must solve our moral dilemmas.

We are Catholics — Senator Norris can speak for his religion and other Senators likewise — but we must be adult enough to face up to our consciences when it comes to divorce, contraception and abortion. Why must we always look to the State for support? No civilised country wishes to provide abortion on demand. This is not what we are looking for or what we will have as a result of the judgments. It is an Irish problem but we must find a solution to it in a European context.

This is a time of change. We must have patience; and there must be a slow, painstaking and logical debate. We cannot sweep our problems under the carpet or shirk our responsibilities. The facts are that at least 5,000 girls and women — some of whom do not give their names and addresses — go to England for abortions. We cannot say that if they take the boat or plane to England and have abortions that is all right. Either it is wrong or it is right.

We must educate, counsel and support women who are lonely and isolated. Women in other EC countries who are considering an abortion are counselled and they often think twice about what will be a very tragic decision for them. We must have a counselling service, support and advice for women in crisis pregnancy situations where the pressure on women is enormous — the secrecy of the pregnancy, deciding to have an abortion, feeling guilty, leaving the country, and perhaps returning with psychological problems for the rest of their lives. We must provide counselling services for these women. I await with interest the judgment from the Supreme Court on 24 March. A decision was made six months ago but reserved judgment will be given in relation to counselling, support and advice services.

Members of the European Parliament have already tabled a resolution stating that nothing in this Protocol shall be taken to restrict in any member state the right of free movement within the Community to obtain services lawfully provided in the Community or the obtaining of information in relation to such services. That is why we were loth to discuss these issues before the full debate tomorrow fortnight when we will have that judgment. We will also know the wording of the amendment to the Maastricht Protocol. We will have further time to study the lengthy Supreme Court deliberations which are extremely complicated and difficult.

We are now part of Europe. We will have to face issues like this. Once we sign the Maastricht Treaty, we must take responsibility for our own morals and deal with them, through our own consciences and we must not expect to be counselled and taken by the hand like children when we make decisions. We must grow up.

This issue — and it is unfortunate that it was the trauma of a 14 year old which prompted it — has caused the people to take their responsibilities seriously in relation to what will be a secular society within the 12 EC countries. I hope there will be consensus on this issue which caused such division in 1983. If a referendum is necessary Fine Gael will not shirk their responsibility. We will be a responsible party. We will support whatever steps are taken to resolve this problem once and for all.

Mr. Lydon

The majority decisions of the Supreme Court held that where "it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother [e.g. by a threat of self destruction] which can only be avoided by the termination of her pregnancy, that such termination is permissible, having regard to the true interpretation of Article 40.3.3º of the Constitution."—Judge Finlay.

The application of this test to the present case was based on the following facts: a 14 year old girl alleged that she had been raped. Judge Hederman pointed out that there was no evidence in this case to prove this and that it remained an allegation. No forensic or medical evidence was called in the case. The other judges did not discuss the issue of rape per se but were clearly influenced by the allegation, on several occasions she “coldly expressed a desire to solve matters by ending her life”, and a clinical psychologist, a member of my own profession, assessed her emotional condition and concluded that she was “capable of such an act”, and I do not doubt for a moment that she was if she found herself in these circumstances.

The major implication of these judgments is that abortion in the above circumstances is now legally permitted in Ireland, on the basis of the constitutional rights of the mother expressed in Article 40.3.3º.

The level of proof required, as exemplified in the present case, is not strict. In fact, any threat of suicide made by a pregnant women in the presence of a psychologist would have to be taken seriously and would prima facie entitle her to obtain an abortion in Ireland.

In such cases there is no time or age limit whatsoever. There is no reason suggested in the judgments that the same principles could not be applied to a woman who was eight or nine months pregnant. In this respect, Ireland now has the most permissive abortion law in the world. That, for me, is a sad thing.

Ireland is now embarked on the path that has led to abortion on demand in many other countries. In Roe v Wade in the USA in 1973, a 14 year old girl alleged she had been raped. She eventually won a so-called right to have an abortion, a right which has since been invoked in the USA to justify millions of abortions in the past 20 years. She later confessed that she had not in fact been raped, but the floodgates have been opened. I wonder will history repeat itself in this country?

The Supreme Court decision, is I believe, open to several fundamental criticisms on a number of points. First, the judgment failed to recognise the radical distinction between a miscarriage which is a consequence of necessary medical or surgical treatment of a pathological condition in the mother, but which is not the purpose of that treatment, and a miscarriage which is deliberately procured for non-medical reasons. Article 40.3.3º was intended to permit the former — which are not abortions in the medical sense, but not the latter. The judges simply assumed, without any discussion, that the Constitution permitted abortion in some cases.

Second, continuing the confusion, they held that a "real and substantial risk" to the life of the mother was sufficient to justify taking the life of the unborn. This criterion might well be appropriate in deciding whether to undertake a medical or surgical treatment of a pathological condition which might cause harm to the unborn, but it is, I believe, completely inappropriate as a justification for a direct abortion.

Third, there are no cases in which it is medically necessary to deliberately terminate the life of the foetus in order to save the life of the mother. No medical evidence whatsoever was called to address this or indeed any other aspect of the case.

Fourth, any such termination would in any case be contrary to the equal rights specified in Article 40.3.3º. To deliberately destroy one right in order to vindicate another "equal" right is unjustifiable and fundamentally wrong in principle.

Fifth the qualifying test stated by the court can be seen to be misguided from the circumstances to which it was applied. The judges took no account of the normal medical practice whereby potential suicide cases can be treated until the danger is passed. I have frequently established that people were suicidal and people are admitted to psychiatric hospitals in Ireland on the basis that they will feel better after medical treatment in six, eight or ten weeks time or however long it takes. But these judges merely assumed that it would be impractical to prevent the suicide if the mother had decided on it. The threat of suicide was held to be a substantial threat to the life of the mother. Be that as it may; it is clearly not a threat to her right to life. The distinction is very important. Her right to life is primarily a right of self-preservation and her right to the means to sustain her life is a corollary of that right. A threat of suicide by the mother is in breach of her duty to seek to preserve her own life, and that of her unborn child. Her right to life is in fact founded on this duty and the right is forfeited if the duty is not fulfilled. Suicide is not, therefore, a threat to her right to life, but it is an attack on the right to life of the unborn. It amounts to her saying "You kill the baby or I will kill myself." I believe the judges mistakenly took the possibility of suicide to be a threat to the mother's right to life and then proceeded to "vindicate" that right at the expense of the right of the unborn.

Sixth, invoking a rule of constitutional interpretation invented in 1973, which bases the interpretation of constitutional rights on the judges' perception of the "prevailing ideas" on these issues, Judge Finlay agreed with the other judges in arriving at a decision which flies in the face of the clearly expressed decision of the people. This approach is itself unconstitutional in that it denies the right of the people, clearly set out in Article 6 of the Constitution "in final appeal, to decide all questions of national policy, according to the requirements of the common good". As there is no appeal from the Supreme Court, the resulting impasse is a serious constitutional crisis which undermines the authority and standing of the Courts.

In spite of the very liberal approach of the court to abortion in these circumstances, the court saw fit, by a narrow 3-2 majority, to retain for the purpose of Irish law the power to prohibit travel abroad for abortions not covered by the circumstances which I have outlined. They did not deal with the question of EC law. This restriction was not envisaged or desired by the proponents of the amendment or by anyone else in 1983, and it is not desired now.

Mr. B. Ryan

Why?

Mr. Lydon

A real difficulty arises for the Oireachtas in legislation in the aftermath of this case. Since the case was decided on the basis of the mother's constitutional right to life, it would be unconstitutional for the Oireachtas to attempt to enact legislation which was more restrictive of the "right" to abortion than the standard adopted by the court namely, a threat of suicide accepted by one psychologist, not even a second opinion is required.

Leaving the matter in the hands of the Oireachtas is not a solution, therefore, first, because the Oireachtas does not have the power to overrule or modify the effects of the Supreme Court judgment, and second, because any restrictive solution arrived at by the Oireachtas would be wide open to further relaxation arising from pressure from the pro-abortion lobby.

The only way in which the people can restore the situation to what everyone supposed it to have been after the eighth amendment, is to add to Article 40.3.3º a clear-cut wording spelling out the prohibition on abortion and the provision for necessary medical treatments.

The Maastricht Protocol will remain a necessity, but it might have to be amended to ensure that it refers to the new protection to be provided in the Constitution and to deal with the question of travel. Ideally, however, it should simply protect all fundamental rights recognised in the Constitution. There is no reason in principle that the law of an essentially economic treaty should be allowed to take precedence over fundamental rights which are described as "inalienable and imprescriptible rights, antecedent and superior to all positive law" in our Constitution.

I would like to quote a passage from a pastoral letter for Lent called "Christian Integrity — Does it Matter?" by His Grace, the Archbishop of Dublin, Dr. Desmond Connell. He said:

Politicians are entrusted with power by the community for the sake of the common good. Integrity clearly excludes the abuse of political power for private advantage but as the European experience of this century amply shows, the most serious corruption of power is not to be found in abuse of that kind but in the pursuit of policies that diminish or destroy respect for the dignity of the person. This form of abuse has occurred, not just under Nazi and Communist rule, but in the democracies as well, as, for example, in the spread of permissive legislation on abortion. The welfare of our society is very much in the hands of politicians. The task to which they dedicate themselves is one of the noblest but it imposes upon them a special moral responsibility.

I am glad His Grace regards our function as one of the noblest. He goes on to say:

Those whose office obliges them to speak in the name of Christ on matters of public morality will not go unheard by politicians who find in the knowledge of Christ the source of their personal integrity.

These judges, by this particular action and judgment, have, in fact, spat in the face of Christ.

Mr. B. Ryan

That is an appalling and outrageous statement.

Mr. Lydon

Sit down.

Mr. B. Ryan

He has no right to make remarks like that in this House about other human beings and you should stop him.

An Cathaoirleach

Please resume your seat.

Mr. B. Ryan

That is an outrageous statement. I have no desire to sit here and listen to that.

An Cathaoirleach

Please resume your seat.

Mr. Lydon

Hundreds of thousands of Irish people are ready to clear that spittle from the face of Our Saviour now and in the future.

Mr. Norris

I ask you to require Senator Lydon to withdraw that outrageous insult to the other branch of authority in this State.

An Cathaoirleach

Senator Lydon, will you consider withdrawing the remark?

Mr. Lydon

Which remark do you want me to withdraw?

An Cathaoirleach

The obvious comment you made.

Mr. Lydon

I consider abortion to be murder, and if anybody legislates for murder——

An Cathaoirleach

I am not talking about that; I am talking about the comments with regard to the Judiciary.

Mr. Lydon

I will.

Professor Raftery

I am pleased Senator Lydon withdrew that appalling remark, but in the heat of the moment we all make mistakes in what we say.

I abhor abortion and I think most people abhor it even when it is a legal option. Taking into consideration the case of this unfortunate 14 year old girl and her parents I cannot say if I found my daughter at that age pregnant as a result of rape that I would not do as they did. If most Irish parents were honest and imagined themselves in that predicament, even though they may be opposed to abortion I doubt if they would not take the course of action these parents took.

I was pleased abortion was illegal in Ireland, but I was uneasy about the amendment and the debate that accompanied it in 1983. Neither SPUC nor FLAC nor the Church had confidence in the politicians of this country. If they had confidence in us they would not require this amendment to be inserted into the Constitution. What we have got at the end of the day, as Senator Lydon mentioned, is the most permissive abortion legislation in the democratic world, thanks to a pressure group and due to the irresponsibility of Church leaders who would not listen to the Attorney General or the Taoiseach of the day who warned specifically that the wording of that amendment could place us in this dilemma. It was not intended but that is what has happened.

Like Senator Cullen, I object to the term "pro life". It is offensive to imply that we are not all pro life which is what that title does; anybody who disagreed with the pro life campaign of 1983 was automatically branded as pro-abortion, an outrageous assumption. We have produced our own brand of Irish Ayatollahs and this is the result.

We must now consider what to do about the Protocol in the Maastricht Treaty. As Senator Cullen said, the cleanest solution would be to withdraw that Protocol altogether and, after calm deliberate debate, see what we can do about legislation at home. I regret that our present figure for abortion is higher than that of Holland who have the most permissive abortion legislation in the EC. Our figure is based only on those who record themselves as Irish when they go to Britain for an abortion. No doubt a large number of unfortunate women give addresses of friends and relatives in Britain and, consequently, the abortion figure is probably much higher. The abortion rate, I understand, is about 1.8 per cent lower in Holland per 1,000 women than it is in Ireland and their rate is dropping.

No woman wants to have an abortion. Abortion conflicts the maternal instinct and it is only in desperation that people turn to such a remedy. The Dutch abortion figure is dropping because they provide education, information and contraception. We seem to want it both ways. We do not give sex education to young children or adequate information to young married couples and we make it difficult for young people to have access to contraception. It is not a function of State to legislate for morality. That is the function of parents and Church in as far as they want to get involved. It is ridiculous to think we can legislate for morality and a cop-out for parents to call on the Government to decide at what age contraceptives should be made available. The results of this misconception of the State's function are staring us in the face.

Apart from today's problems it is time we took a look at problems which may face us tomorrow if not later tonight. I do not think anybody is considering the possible implications of experiments being carried out at present in reproductive physiology. We have no legislation to deal with artificial insemination, in vitro fertilisation, super ovulation, embryo implantation, embryo splitting or cloning, embryo banks or embryo research. If we were as concerned about life as we profess to be we should now be seeking a Community-wide code of ethics on all these issues. If we do not, people — Irish and otherwise — will naturally drift to the country with the most permissive legislation in this regard. We should be trying as a nation to achieve a standard code of ethics on these issues throughout the Community.

A few weeks ago I read in the Sunday Times about a couple with twins who had experienced difficulty in having a family. The wife has been treated with super ovulation and eight ova were produced, fertilised in vitro and three were implanted. Two of the ova developed successfully and two children were born. The parents were photographed with two beautiful children but the problem was that five embryos remained in storage. The couple declared they did not want them; they did not want more than two children. What would happen in Ireland in that situation? We do not know because we have no legislation for it. The law in Britain provides that if parents do not want embryos they may donate them anonymously to couples who want them or else they must be destroyed within a certain number of hours. No experimentations is allowed on such embryos.

Further to that there is now the possibility — and it has happened already — that identical twins or split embryos, may be born at different times. One was already born 18 months after the other. That development gives rise to the possibility of embryo banks where chancers with catalogues of beautiful children could approach childless couples and offer them a carbon copy of a living child with a high IQ and so on and at a huge price. What are we doing about that? We are not giving it a thought. We have locked ourselves into the consequences of 1983's nonsense which now gives us the most permissive abortion legislation in the democratic world, thanks to the outrageous activities of a pressure group. I hope we will learn a lesson from it and that pressure groups will never again be allowed to blackmail politicians into producing legislation which could have this kind of result.

Minister of State at the Department of Justice (Mr. O'Dea)

I am delighted to have my first opportunity of addressing the Seanad tonight. If I consulted anybody before the last general election who could foretell the future and who forecast that at 7.50 p.m. on 11 March 1992 I would be addressing the Seanad I should have assumed the worst. Nevertheless I am glad to be here, and I hope I will be coming here in this capacity for many years to come rather than as one of your own, despite the obvious pleasure I take in your company.

Mr. Norris

The Minister would be welcome.

Mr. O'Dea

I thank all speakers whatever their point of view who contributed to this debate. I have made a careful note of all points made and many were good points. I undertake to the House now to pass on those remarks for the consideration of the Government.

First, I want to put on the record my personal sympathy and that of the Government for the family involved in the tragic case referred to in the motion before the House. Following the Supreme Court decision given on 26 February, the Government issued a statement which, among other things, said "that any further comment on the wider implications of the case must await an analysis of the reasons which will be given in the court's judgment in due course". These reasons are now set out in the judgment of the court delivered on the 5 March 1992 and the Government's position in the matter at this early stage was explained to the other House yesterday by the Taoiseach. His statement will give my contribution here tonight.

The Taoiseach said that the judgments of the Supreme Court which number five in total have raised a number of complex issues that will need careful consideration by the Government. It is vital, he said, that these issues be treated with insight and care so that their precise implications can be fully understood and considered. Because of the constitutional, political, humanitarian and other questions involved, he said this process will inevitably take time and it would be irresponsible to attempt to come up with instant solutions or suggestions.

The Taoiseach also referred to consultations he proposed to have with Opposition party leaders and he assured the House that when those consultations are complete and all the implications of the judgments have been fully and carefully examined the Government will be able to announce their proposals to deal with this matter.

The Taoiseach was also able to inform the House that the Government are committed to seeking to have the Protocol to the Maastricht Treaty amended with a view to removing the effect it would appear to have on the right of our citizens to travel abroad in certain cases. He has already set in train the preliminary procedures necessary to achieve such a change. The consultations with Opposition leaders which I have mentioned began yesterday and the Taoiseach has promised to keep in touch with them as work on the examination of the implications of the judgment continues.

I agree that the better approach as indicated in the amendment to the motion is for the House to defer detailed discussion on Article 40.3.3º, until such time as all Members have had an opportunity to study in depth the Supreme Court's judgments. The Government for their part must also have a full opportunity to analyse the issues involved, to to engage in consultations and to decide what further proposals it should bring forward to deal with the implications of the Supreme Court decision.

Consequently, I urge the House to support the amendment as I and the Government think it is the proper response to make at this time.

Mr. B. Ryan

I apologise for my intemperate outburst a few moments ago; I do not like becoming excessively heated in this House. It is not the way to deal with issues and I apologise to you and the House. I want to be calm and restrained and to say to those who disagree with me on this issue that they should be a little sensitive about wrapping the term "pro life" about themselves.

I will try to confine my remarks to what Senator Hanafin said because at all times in this debate he has been extremely balanced, fair and restrained in his comments which cannot be said for everybody in this debate. To claim that only one side of a disagreement like this is pro life is a hurtful assertion.

Mr. Norris

Hear, hear.

Mr. B. Ryan

I do not claim a monopoly on virtue but I deeply resent any suggestion that because I disagree with people on either the merits of the constitutional amendment or the Article of the Constitution we are debating or any related issue that I am not pro life. I have developed a high regard for Members of the Oireachtas in the 11 years I have been here. I came in with almost a contempt for politicians. My opinion of Members of both Houses of the Oireachtas is higher now than it was when I came in 11 years ago with a somewhat simplistic view. Members of the Oireachtas are all pro life and everybody, in ways that I sometimes disagree with passionately, works in that direction. Occasions when extraordinarily offensive language is used are noted because they are so rare and when they happen all of us respond. I have memories of occasional remarks made by various people in this regard.

It is unfortunate that the young girl in question was described as allegedly raped because I understand sexual intercourse with an underage person is, by definition, statutory rape and that whoever was involved in the act of intercourse whether consensual or not is guilty of rape. Anybody irresponsible enough to engage in sexual acitvities with a minor is committing an enormous breach of trust and perpetrating a profound invasion of a child's physical integrity and, therefore, the proper description of that action is rape. We can argue about the circumstances of the rape but sexual intercourse with a minor is legally classified as statutory rape and, therefore, all of us should be of one view on that.

I expressed my view on some of the extreme remarks made about the Supreme Court decision. Some people do not appreciate that the Supreme Court have to deal with the Constitution as it is and there is no room in the Constitution for a fudge on hard questions. Their Lordships explained that in an issue involving conflicts of rights they cannot shrug their shoulders, hold their hands up and say "Sorry, we cannot decide". Their job is to decide where we leave it unclear and in Article 40.3.3º as they interpret it there was a clear conflict of rights and tragically, that conflict of rights was not unforeseen. Without being pedantic about it it was foreseen by the Attorney General before this amendment was passed; he warned the then Government that this amendment was ambiguous.

The Director of Public Prosecutions' statement caused considerable controversy at the time. I quote from column 523 of the Official Report of the Seanad of 4 May 1983 in which Senator Mary Robinson quoted the Attorney General as saying that the Director of Public Prosecutions envisaged certain difficulties in the enforcement of section 58 of the Offences Against the Persons Act, 1861 under which abortion is banned in this country. The Director of Public Prosecutions implied that it would be difficult to prosecute under certain circumstances if the amendment were passed so we were warned. I do not say that to gloat but simply to advise all of us to be careful with difficult issues not to make a situation worse by ignoring the advice of people who do not have a hidden agenda or vested interests and who are trying to advise us as dispassionately as they can about what should be done.

At column 538 of the same debate on the Eighth Amendment to the Constitution Bill, Senator Robinson talked about the possibility of third party injunctions being brought under this amendment perhaps to prevent the pregnant woman from going outside the country. We were warned about the possibility of people being injuncted. I mention this not to gloat but to remind the House that we should be very careful. We should not allow ourselves to be pushed into positions which make life worse.

I want to address the suggestion that Article 40.3.3º should be amended to prevent what Senator Hanafin, in a very restrained and balanced comment and a very fair argument from his position, called intentional abortion. The difficulty is that we cannot mix Church law and civil law. My understanding of civil law is that the known indirect consequences of an action are as culpable as its direct consequences. The problem is that in the eyes of the church a pregnancy can be indirectly terminated but in civil law, that is as much an abortion as the case where a pregnancy is directly terminated. It is impossible to write civil law which will give full force to the views of Senator Hanafin and at the same time maintain the position on life-threatening situations where, in the church's view, the termination of a pregnancy is an indirect consequence. The distinction is impossible to make in civil law. Furthermore, it is possible to argue — and some eminent lawyers have done so — that even those situations are illegal under the 1861 Offences Against the Person Act. It is impossible to provide the type of prohibition that some people on the other side want. In their excessive zeal to copperfasten the situation, which in my view is impossible to copperfasten, we have the opposite to what they wished at the time. I have to say they were warned that this could be the consequence of their actions and that is why this amendment is still a matter of considerable disquiet.

The position of the minority churches is far too easily dismissed in this argument. The truth is that all the Protestant churches admit to the possibility of abortion under certain circumstances. While it is possible to dismiss all those arguments, the one thing we should not do is to ignore them and pretend they were not made. If people want to say I think they are wrong and that I am going to ignore them, that is fine. To insert into the Constitution a clause which flies in the face of the accepted views of at least 25 per cent of the population of this island, and to have that advocated by people who strongly advocate the retention of the clauses in the Constitution which indirectly claim some jurisdiction over Northern Ireland, is logically inconsistent, whatever about the moral position of those who advocate it. If the intent of the original amendment was offensive to members of the minority religion the even more extreme Roman Catholic intent of the proposed amendment to the amendment is doubly so. Those who advocate it are obliged morally, not necesarily to agree with the argument, but to say that they are so sure they are right on this issue that they are going to ignore the views of the minority religion on this island. I believe they are wrong. I have always believed that this amendment was unhelpful and the position is getting worse.

A number of very good statements have been made by various Members of this House about the need to keep a degree of restraint on this issue, about the need not to use highly emotional language. The only slightly emotional comment I will make tonight is that over the last month, I was very annoyed to hear a German MP describing us as barbarians.

Senators

Hear hear.

Mr. B. Ryan

Coming from a German that was a bit rich. I say that in the knowledge that I will be accused of all sorts of things, but, with their history, they can leave the rest of us alone and avoid giving us lectures about our degree of civilisation.

I believe, as I have always believed, that even after the Supreme Court judgment, we do not need this amendment. Many of those who disagree with me are sincere in their views but I would invite them to address this question: what do they really want? They apparently want the absolute right to travel outside this island to do something they believe is fundamentally and morally wrong. I do not understand that. If I agreed with them about the heinous nature of abortion — that it is equivalent to murder in every case — then I would agree there is a logic to preventing people leaving. If it is less obvious then what we accept are the complexities of this issue. It is not a simple issue. If it were as clear cut as some people say, then you could not possibly permit people to leave the State to do it. If on the other hand, there are many nuances, then we ought to address the problem and not try to adopt a sense of moral superiority simply by not allowing it to happen here.

I said last week I could make no sense of the amendment to this motion. On the understanding that we do not want a division on this very delicate and sensitive issue, and that the amendment will not be pressed, I propose to withdraw the motion so that we can continue to discuss this issue in the calm and reasonably responsible fashion that the vast majority of the Members of this House have shown.

An Cathaoirleach

Is the amendment being pressed?

Mrs. Doyle

No. In the interests of consensus and given the sensitivity of the subject and because the Leader has agreed to a full day's discussion in a fortnight's time when we can address the Supreme Court judgment and the proposed amendment to the Maastricht Protocol, we will press our amendment. I would like to thank the movers of the motion. This is a constructive move on everybody's part this evening.

Amendment by leave, withdrawn.

An Cathaoirleach

Technically the motion is in the possession of the House. What does Senator Brendan Ryan, as proposer of the motion, wish in regard to the motion?

Mr. B. Ryan

I ask the permission of the House to withdraw the motion.

An Cathaoirleach

Is that agreed? Agreed.

Mr. Wright

On behalf of the House I thank the proposers for agreeing to withdraw the motion and amendment. By their actions they have ensured that the consensus that prevailed throughout the political system on this most sensitive issue has been maintained. This has been a good night for the Seanad.

Motion, by leave, withdrawn.