An Bille um an gCúigiu Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: An Tuarascáil agus an Chéim Dheiridh. Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Report and Final Stages.

Before we commence I remind Senators that they may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment must be seconded on Report Stage.

Mr. Ryan

Tairgim leasú a a1:

I leathanach 6, idir línte 6 agus 7, an méid seo a leanas a chur isteach:

"4º Chun críocha an airteagail seo ciallaíonn ‘gan breith' beatha gan breith tar éis ionphlandú i mbroinn mná."

I move amendment No. a1:

In page 7, between lines 6 and 7 to insert the following:

"4º For the purposes of this article ‘unborn' means unborn life after implantation in the womb of a woman."

This arises from our discussion yesterday and the concerns expressed by me and others, including Senator Henry who probably expressed her concerns with more coherence, that once this amendment to the Constitution is passed, the impact of the Bill will be such that the morning-after pill and IUD, among other things, which it is believed prevent the implantation of a fertilised ovum in a woman's womb, will still be under threat from Article 40.3.3º.

As is perfectly right in a free society, there has been an ongoing campaign in this country concerning the rights of the unborn and it has focused entirely on the idea of a constitutional amendment to protect those rights. That had many tentacles and expressions, one of which was a vigorous campaign against forms of contraception regarded as abortifacients. I accept that, under the definition of abortion contained in this proposal, they could not be classified as such, but they most assuredly could be regarded as a threat to unborn life if one accepts the principle that unborn life begins at the moment of conception and not at the moment of implantation.

We do not want to become involved in too many technical discussions, but our concern is that if we do not make the definition of the unborn coterminous with the definition of the period in which unborn life is protected, it is an invitation to someone to raise the possibility of Article 40.3.3º being used to prohibit the sale and distribution of what are regarded as methods of contraception. While it is not something I have seen done, a well organised political campaign is attempting to deal with the issue. If the campaign is satisfied with the amendment as far as implantation onwards is concerned, it will turn to the issue of what we regard as methods of contraception.

The bishops said yesterday in their statement that unborn life from the moment of implantation would be further protected by this amendment and unborn life, prior to implantation, would continue to be protected by the existing amendment. This is how their lordships found a way to support the legislation. If the bishops are correct – the issue does not arise here but I presume they have good legal advice – and unborn life before implantation is protected by Article 40.3.3º, then any medical procedure, medicine and so on which puts unborn life between the moment of conception and implantation at risk is effectively prohibited by Article 40.3.3º. If our intention is to say that is not the case, that these items are contraceptives and will remain legal, then the correct view is to define unborn life as protected in the Constitution from the moment of implantation.

I second the amendment. Senator Ryan's concerns are similar to mine. I dealt last night with my concerns that many people think this legislation will ensure the morning-after pill and the post coital IUD are legal. At one stage I thought this was the message from the Minister and that the legislation would help in this regard. However, he was clear last night that this is not the case. I can see why it does not make the legality of the morning-after pill or the post coital intra-uterine device more certain. Neither of them, as both he and I interpret their action, work as abortifacients; they work through preventing implantation. The Minister clearly specified that an abortion can only take place following implantation. I am pleased people have come round to my point of view because I said in 1983 that it was impractical to try to protect the fertilised egg. I went through that argument yesterday.

Given what was said initially, I thought the legislation helped in regard to the legal status of the post coital IUD and morning-after pill. I also thought it made the situation regarding in vitro fertilisation better. My theologian, who thanks me for my continued interest in this topic, does not share all my views. She wrote me an interesting letter saying she believes that in this life we should bring in legislation so there is no creation of “surplus” embryos beyond the one that will be implanted. This would have very serious implications for the practice of in vitro fertilisation in this country. We usually implant three zygotes or fertilised eggs because the results are better. There is also the freezing of zygotes.

She goes on to say that it should also ensure no freezing of early embryos, as happened in Ireland for some years despite the guidelines of the Medical Council. Freezing at the "pronuclear" stage, before syngamy at around hour 18 of fertilisation, does not have the ethical problems of embryo freezing and provides an alternative to two problems. The risks of superovulation and egg harvesting incurred by the potential mother should be reduced as far as possible as should the high risk of causing multiple births by replacing three embryos. I query what she says about the replacement of three embryos because, while one sometimes gets triplets, more often one or two of the embryos are implanted, which is usually a better way to proceed. Senator Ryan is concerned that some people are looking at the legislation with a view to obstructing common practices in this country.

The letter goes on to say that children have a protectable right to conditions which do not obstruct the formation of their identity. Having identifiable parents belongs to these conditions. It goes on to talk about law suits which have been taken in various jurisdictions by children conceived by anonymous gamete donation. We know that sperm donation has been practised in this country for many years. While the hospital with which I am involved, the Rotunda, does not practise egg donation, there is a possibility that other clinics may practise it. There are practices in this country which a large number of people may prefer to have discontinued. Does the Minister believe the legislation will make the practice of in vitro fertilisation more or less likely to be challenged?

We are back again to what took up most of the day yesterday, that is, the harmonious reading of Articles 43.3.3º and 43.3.4º. According to the Minister, this is how the amendment should be read. However, even following what the bishops said, we are again debating Articles 43.3.3º and 43.3.4º. I am as confused today as I was yesterday when we sought clarification from the Minister on the interpretation of both Articles. I await clarification from him in light of what Senator Ryan and Senator Henry said.

Senator Ryan's amendment is eminently useful in that it defines what we mean by the word "unborn" in the context of the legislation. The Minister told us how everything is to be taken in the context of the Constitution and the constitutional amendments.

The statement yesterday from the bishops raises some questions. It seems from what the Minister is suggesting that unborn human life begins after implantation in the womb. While that seems to be the intention of the section, there is no clarity in the absence of a definition. However, the bishops made it clear that they do not consider it to be unborn human life after implantation, but prior to implantation. Why has the Minister refused to accept an amendment which will clarify the position in relation to the application of the legislation? It is essential to give a definition of what unborn human life means. The Minister has shied away from doing so and this will cause enormous legal difficulties and challenges. It would be a simple matter to provide such clarification at this stage. Therefore, I urge him to accept the amendment.

We discussed these issues yesterday and in the other House. The amendment tabled by Senators Ryan and Costello would mean inserting an Article in the Constitution, a definition, and that itself would be an unusual step. The wording of Article 40.3.4º, as already set out in the First Schedule, stipulates that it is life in the womb which is being protected and the detail of how this protection will be effected is contained in the envisaged legislation which appears in the Second Schedule.

We have already stated that Article 40.3.3º and the new Article 40.3.4º would have to be read together – the doctrine of harmonious interpretation. That is not mine, I did not invent it.

It is that of the Judiciary.

It is the ongoing practice of the Supreme Court and that is the manner of the methodology by which it interprets the Constitution. It does not look at Articles separately. The impact of Senator Ryan's amendment would be for the purposes of the entire Article 40.3.3º. I am not sure if that is the intention. Is the amendment intended to justify the unborn for the purposes of subsection Article 40.3.4º or for the entire Article 40.3.3º?

Mr. Ryan

It is for the purposes of Article 40. There is only one reference to the unborn in Article 40 so it makes it clear.

It is to cover the entire Article. We came at it from the perspective of bringing in a criminal law covering abortion. In our view or in any practical analysis of this, it would not be achievable or practicable in law to bring in a criminal statute to prohibit abortion prior to implantation because of the obvious difficulty of determining when human life or conception begins. Who is to know or how could we intervene or prosecute? There is no practicable application of a law against abortion during that period of three to ten days. It makes no sense to suggest we could bring in a criminal law to prohibit abortion up to implantation and that is what informed the use of the term implantation in terms of criminal law.

We set out not to define the unborn in that sense but to define abortion for the purpose of the Act. That is the purpose. We did not set out to redefine Article 40.3.3º and we are not putting that proposal before the House.

Mr. Ryan

That is a matter of opinion.

It is a matter of fact. I made a clear distinction. What is involved in section 1(2) is a definition of abortion.

Mr. Ryan

Article 40.3.3º was—

Senator Ryan will have the right to reply.

In the Act section 1(1) is a definition of abortion. It is not a definition of unborn.

Senator Ryan may reply if he wishes.

May I interrupt? I apologise. Senator Henry made a point which was discussed last night and our advice is that the manner in which we approach this makes the situation more certain in relation to the morning-after pill and the IUD. I made that point last night. I also pointed out that nobody in the House can say that any legislation or constitutional amendment we pass here is not subsequently subject to interpretation. Someone can bring a challenge at any time. That is life. If citizens want to challenge anything they are free to do so. Given the doctrine of harmonious interpretation, particularly if we read Article 40.3.3º and Article 40.3.4º together, our advice is that the situation now is far more certain than it was prior to this legislation being brought forward.

I answered the question on in vitro fertilisation last night. This Bill does not deal with the evolving area of embryo research, the freezing of embryos, in vitro fertilisation etc. I pointed out that the commission on assisted human reproduction is the vehicle to resolve the many complex issues surrounding that area. We never said this Bill would deal with that area.

In any proposal such as this we are concerned with balance. We are trying to achieve support from the majority of the middle ground on this. We knew from day one that in trying to achieve balance in these legislative referendum proposals we would never achieve unanimity or acceptance by all sides. We anticipated that people would have difficulties and those difficulties have manifested themselves in communications and letters on the issue of definition of unborn and so on. On the pro-choice side there is dissatisfaction on the suicide issue and others.

I was under no illusion but that there would be concerns around the full range of issues. It is our judgment and we are satisfied that we have put forward a practical set of proposals that adds to the protection of the life of the mother, particularly in terms of medical procedure and constitutional backing to that, and that also brings greater certainty to the situation than has existed since 1992. I accept that people have different perspectives but that is our call.

Mr. Ryan

Apropos something the Minister just said, I saw a lorry going up Kildare Street this morning carrying portraits of the Minister and the Taoiseach. It was quite revolting and is entirely wrong. I do not believe any Member of the Oireachtas would support it. I want it known that I believe it is wrong and unfair.

I do not believe and never have believed in a woman's right to choose as it is interpreted by most of the lobby. My objections date back to 1983. The complexities of the issue make it impossible to deal with through constitutional law. The Minister said that it would be unusual to put a definition into the Constitution and that is precisely the reason it should not be in it. It should not be there because the question of who or what constitutes the unborn is vague and undefinable. I remember Deputy Spring was almost guillotined by one part of the anti-abortion lobby because he used the word "it" rather than he or she. He had to withdraw it and apologise but perhaps we have moved on since then.

I am not trying to define in this amendment when life begins but simply trying to clarify what the Constitution means when it speaks of unborn life. It is not a question of a universal definition but just for the purposes of this Article. I accept that other people have different views but if we are to spring to the barricades to defend something we should at least know what it is we are defending.

Part of the Government proposal is a proposal to prohibit abortion as defined. Whether I agree or not, that is an issue. It is not the total of what the State says it proposes to do to defend the life of the unborn but is an important part of it. As the Minister said, it is a call the Government has made. We can disagree and respect each other's positions but it is not the sum total of the defence of the unborn. I believe the Government responded incorrectly to a lobby group before the last election and I am certain that the same lobby group will now move on to other issues and will use constitutional and other devices to try to have things prohibited that they believe conscientiously pose a threat to the life of the unborn, as they understand the term to mean.

All I suggest is that we clarify that the practicalities of constitutional law are that the best we can do under the Constitution is protect unborn life from the moment of implantation in a woman's womb. That is what this is all about. It is quite limited. It is not meant to enter into profound philosophical debates about when life begins. It is simply an attempt to make sure that the Constitution means something.

I was here in 1983 when varying interpretations were put on what Article 40.3.3.º meant across a spectrum of opinion ranging from extremely conservative to extremely liberal, whatever those words mean. None of them forecast the interpretation that the Supreme Court put on it. Nobody mentioned it. Nobody thought in that way. We have to be extremely careful with the Constitution. The matter will be out of our hands once the people decide on the issue. The Supreme Court will have to deal with the result. This amendment seeks to crystallise precisely what form of life we are defending.

Cuireadh an leasú.

Amendment put.

Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.Jackman, Mary.

Keogh, Helen.Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.


Bohan, Eddie.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.

Glynn, Camillus.Kiely, Daniel.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Quill, Máirín.Quinn, Feargal.Walsh, Jim.

Tellers: Tá, Senators Costello and Ryan; Níl, Senators T. Fitzgerald and Gibbons.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

An Leas-Chathaoirleach

Amendment No. 1 is in the name of Senator Henry. Amendments Nos. 2 and 3 are related so it is proposed to take amendments Nos. 1, 2 and 3 together, by agreement.

Tairgim leasú a 1:

I leathanach 9, líne 12, "in áit fhormheasta" a scriosadh.

I move amendment No. 1:

In page 8, line 12, to delete "at an approved place".

I will not delay the Minister on this amendment, which he said he would examine overnight. I went into great detail on this amendment yesterday in terms of my concern, particularly regarding haemorrhage. This is such a common emergency that I felt an amendment was necessary. I also pointed out to the Minister the near-miss maternal mortality studies carried out in the Coombe Women's Hospital which indicated that there was a near-miss case in three out of five emergencies regarding the death of the mother and that all these cases required over five units of blood. That is a lot of blood. Ectopic pregnancies were not included in this data, nor were early pregnancies, and not all these emergencies had taken place within the confines of the hospital. Indeed, there was no predictability in the majority of the cases. These women did not have any major obstetric or medical problems. These bleeds occurred totally out of the blue so they were what one would describe as a definite emergency.

We have no clear definition of "an approved place". The Taoiseach gave us one definition and the Minister has given us a more expanded definition, but I am concerned about the life-threatening situation that can occur with haemorrhage in the most unexpected of places. I am not asking the Minister to open up approved places throughout the country because I do not believe he can do that. One wants to have the patient in the place of optimum care, but with the best will in the world one may not get the person to the place of optimum care and I would not like to think that any medical practitioner would feel constrained from acting because he or she was not in an approved place. Interestingly, a Fianna Fáil backbencher in the Dáil told me that a doctor would always act in these cases. However, one has to consider the level of medical litigation. I pay more than £1,200 for Good Samaritan insurance. Even if one goes to help someone on the side of the road, one is at risk of being sued. It is appalling but that is the position nowadays. It is because of such scenarios that members of the medical profession who may become involved in an emergency which does not happen near an approved place should be trusted. I have confidence in these doctors. If they have not carried out illegal procedures in the past, why would they start now? Why would they do something illegal in future if they have not done so in the past? I have not heard anybody accusing a member of the medical profession of doing so.

I second the amendment. Senator Henry outlined the medical problems involved. The location of approved places was also debated at length last night. A woman whose life is at risk could have difficulty getting to an approved place and that has not been given consideration. There is a difference in what the Taoiseach stated in his reply to Deputy Noonan. He referred specifically to hospitals and responsible management possessing adequate expertise in the area of obstetrics and gynaecology. They are not located in the four corners of the State. The Taoiseach's response is limited. I hope the Minister will give a more specific assessment of the amendment in light of Senator Henry's contribution last night.

I support the amendment. Senator Fitzpatrick said the best case scenario for pregnant women to receive treatment is that they would go to where there is the optimum level of services. I did so when I had my children and that is what we would like to happen. If a procedure must be embarked on because a woman's life is in danger and an approved place is not nearby, what will happen to the woman? Even in Dublin, because of traffic congestion, it can take considerable time to travel from Killiney to Holles Street Hospital. It is more likely that where the services described in the Taoiseach's reply are not available, a woman may have to travel 80 or 90 miles to an approved place, thereby putting her life under greater threat. This is a serious issue. We want women looked after in approved places that have the best facilities but we are very anxious that in an emergency a procedure can be undertaken by a suitably qualified medical practitioner to save the life of a woman or a child, who is a woman under 18.

Mr. Ryan

The Minister has a difficulty. He could define such a large number of approved places by order that the notion of identifying them would be meaningless or he could adopt such a restrictive definition that the issues raised by Senators Keogh, Jackman and Henry would become concerns. He could extend the definition so far that the notion of regulating an approved place would become meaningless or he could restrict it so much that it would become an issue. I do not know how he will ensure women's lives will not be put at risk unnecessarily unless he introduces such a broad range of approved places by order that will make the idea of approving the places meaningless. That is why I support the amendments.

The Minister indicated he would examine the issue overnight and he appeared to be amenable to the points raised. I hope the procedure involved in sending the Bill back to the Dáil is not an impediment to him giving these amendments due consideration. A strong case was made last night. The Minister indicated he would more than likely define approved places as "current maternity hospitals". Senator Henry provided definitive detail from a survey carried out by the Coombe Hospital. Of a total of 50 women surveyed, 31 suffered haemorrhaging. She also pointed out that five units of blood were administered to each woman.

If the Minister proceeds to define "approved places" as maternity hospitals only, serious difficulties could be created in rural Ireland. Last night I suggested to him that by doing so he could diminish the right to life of the mother and discriminate against women living in rural areas who are not close to maternity services. I instanced women from Loop Head or Black Head in County Clare who have to travel 70 or 90 miles to maternity hospitals in Galway and Limerick respectively. I would hate to think that because we, as legislators, provided for approved places, a woman's life could be lost because of the distance she has to travel to an approved place. It is not in the interests of women that this definition should remain in the legislation. I ask the Minister, if he has not drafted a better definition, to delete it.

We rehearsed the arguments in depth last night. However, "in so far as practicable" is a staple phrase in most legislation. There is always a get-out in terms of how something should happen. The optimum scenario is that a medical practitioner would engage in the medical procedure at an approved place. That will not be possible in all cases and Senator Henry has outlined a considerable number of detailed examples of how such medical procedures may have to take place in circumstances other than in the optimum scenario.

The Minister is not making provision for such procedures other than in approved places. There can only be a limited number of places on cost grounds alone. These medical procedures cannot be carried out in various hospitals because the expertise is not available. There can only be a limited number of places. Why can the Minister not accept Senator Henry's amendment, which proposes to delete the reference to approved places and, therefore, leave open the option of the procedure taking place elsewhere or accept the Labour Party's amendment which would provide for the procedure to be carried out in any other place in emergencies? It will not dilute the legislation, but will help ensure that people's lives are saved.

I indicated last evening, without making promises, that I would reflect on this overnight, which I did as well as again consulting on it. I also made it clear that prior to publishing the legislation, I examined this issue and sought the advice of the masters of the three main maternity hospitals. They were emphatic that there would be no such emergencies. They said that these rare life-threatening conditions only occur three or four times a year and that no immediate decisions are ever taken. The decisions are taken overnight after consulting with colleagues with particular expertise, assessing the woman's condition at the time, monitoring and evaluating, and agreeing on an approach with the aim of taking it as far as one can before intervention. That is taking into account pre-eclampsia, Eisenmenger's syndrome, cancer of the womb and so forth. This issue was also considered in detail by the all-party Oireachtas committee.

In relation to Senator Henry's point about haemorrhaging, my advice, from experts who deal with this on a daily basis, was that this has been part of routine pregnancy management from time immemorial.

It is very common.

Yes, it is.

It is still very upsetting.

The point is that it is very common. Last night, the subject of spontaneous abortion was raised. In that case, the doctor does not influence the termination, as no one on the side of a hill would.

I will return to that later.

There is another strong point that all speakers have overlooked and which I invite Senator Henry to reflect on, as she said that she did not want it happening everywhere.

I said that I did not want approved places everywhere.

The Senator cannot then propose an amendment to delete approved places, which will leave nothing. It makes no sense. People are being paradoxical. Senator Costello, for example, says that we know that there is not expertise everywhere. It is not on Loop Head and will not be.

However, it might be 70 miles away.

It will not be in many rural places. The safety of both the mother and child is crucial. To have a carte blanche with no specific provisions would jeopardise their safety. It is as much about women's safety as anything else. This has been consistently put in the medical advice I received. There are strong arguments in favour of an approved centre with the necessary expertise, facilities and multi-disciplinary teams to make the correct interventions.

We are talking about emergencies in which there is no time to get to an approved place.

I am relaying the medical advice on emergencies to the House and I am convinced by it. However, we are also talking about trust. There have been difficulties in the past. The Irish Medical Council has dealt with individual practitioners, most recently with one who came here from abroad. It is always a possibility that a practitioner from abroad would not or could not subscribe to our code of practice. If this amendment were included it would leave a loophole for someone to carry out the procedure in his or her own clinic, in effect to do what he or she wishes because of the defence clause that it is an emergency. It is no use Senators saying that it could not happen. If we took out approved places, we could be opening the door to illegal abortions being carried out without proper care in place for women's safety.

I am satisfied that the mother is not endangered by the insertion of approved places. Senator Henry conceded yesterday that the issue of legal action against a practitioner was not her major concern. I pointed out that in the Bill, given that the person would have the defence of necessity and the presumption of intentional destruction and of rebuttal would have to be present, the DPP would decide on whether to take a case. That was acceptable yesterday. I am not disposed to accept these amendments because there are significant dangers in them.

I assure the Minister, given the length of time that I am in practice, I would not propose anything which I thought would put women's lives in danger. I am sure he is not suggesting that, but I would resent any such suggestion. All my professional life, I have worked for women's health.

I did not suggest that the Senator was doing that. I merely said that it could be one consequence of the amendment. I hope that she would also accept that I would not do anything to endanger a woman's life.

Of course I accept that. However, there is more concern about a person entering the country and performing illegal abortions than there is about the case I am presenting. I said that my main concern was not about legal action being taken against the doctor because more legal actions are taken against doctors here than in any other country. This is no surprise as we have a higher level of every kind of litigation.

The problem with spontaneous abortion is where another party objects to the termination of the pregnancy when the foetal heart is still there. I have seen this once and that was enough.

The last inquest we had into a maternal mortality found that death was due to bleeding. Bleeding should not be underestimated. There was another inquest recently into the death of a 12 year old child in Wicklow who was stabbed by a nine year old. The child was taken to the doctor who simply sutured the wound because it was small and had been inflicted by a child, for which I do not criticise the doctor. However, the child soon collapsed because of internal bleeding and was dead before he could be taken to hospital. This is what I mean when I refer to medical emergencies involving bleeding. I am not saying that the child's death has something to do with this Bill.

I am trying to highlight the rapid deterioration in patients who are bleeding and the reason they should be brought to the first possible place, even though ideally they should be brought to the best possible facility. I am sure the Minister did not mean to insinuate that I had no care for women's lives. It is because of my concern for women's lives and that in just one case sometime in the future I will be asked to do my very best to ensure the woman concerned is treated that I tabled the amendment.

An Leas-Chathaoirleach

These three amendments were to be discussed together.

Mr. Ryan

I have often wondered about the grouping of amendments in this House. If on Report Stage that were to involve proposers of amendments not being able to reply, the simple expedient would be to refuse to agree to grouping. As that would be even more unhelpful, perhaps we have the lesser of two evils.

If the Minister is unhappy with the idea of eliminating an approved place, our amendment is a safe compromise. It recognises that there may be emergencies. As Senator Henry said, where a practitioner believes that the welfare of his or her patient so requires, she should be treated other than in an approved place. I cannot see what the problem with this would be. I do not often quote the Minister's colleague, the Minister for Finance, but I listen to advice, as I am sure the Minister does. I must listen to advice on these matters in the context of my experience.

I have seen quite extraordinary statements being made by former masters of maternity hospitals which are at variance because of the language used and they way in which they define words. I have heard an emeritus professor say that a woman has never had a medical condition which necessitated an abortion. That is a fine statement to make except that it means a whole series of things in terms of definitions of words quite different from what we are talking about here. Experts give advice from the point of view of their experience, not from the point of view of law. The real difficulty lies in translating what the medical professionals say into law without changing its meaning.

To have it rigidly defined as a certain number of approved places is making something excessively rigid and not dealing with the possibility of an emergency. Our amendment is quite conservative and suggests that in an emergency a medical practitioner ought to be able to carry out such procedures if he or she deems it necessary in order to save the patient's life. I cannot see what could possibly be objectionable about this.

I wish to say a few words about amendment No. 3. I know about the advice that the Minister has been given. In 1983 when I said there were occasional high risk cases such as Eisenmenger's syndrome or pre-eclampsia I was told there was never a case where this happened. Now, amazingly, I am told there is. Will I be told in a few years that I was right after all?

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, John.Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.

Glynn, Camillus.Kiely, Daniel.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Quill, Máirín.Ross, Shane.Walsh, Jim.


Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Henry, Mary.

Jackman, Mary.Keogh, Helen.Manning, Maurice.Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Henry and Quinn.
Faisnéiseadh go rabhtas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

Mr. Ryan

Tairgim leasú a 2:

I leathanach 9, líne 12, "(nó, i gcás éigeandála liachta agus i gcás ina gcreideann an cleachtóir lena mbaineann gur gá sin ar mhaithe le bainistiú leas a othair nó a hothair, in aon áit eile)" a chur isteach i ndiaidh "fhormheasta".

I move amendment No. 2:

In page 8, line 12, after "place" to insert "(or, in case of medical emergency and where the practitioner concerned believes the management of the welfare of his or her patient so requires, any other place)".

Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú dó.

Amendment put and declared lost.
Níor tairgeadh leasú a 3.
Amendment No. 3 not moved.

Tairgim leasú a 3a: I leathanach 9, líne 26, “os cionn 18 mbliana d'aois nó leanbh baineann faoi bhun 18 mbliana d'aois” a chur isteach i ndiaidh “baineann”.

I move amendment No. 3a: In page 8, line 26, after “person” to insert “over 18 years of age or a female child under 18 years of age”.

I explained this matter in great detail last night. I tabled the amendment because a female person over 18 has a totally different legal standing from a female person under 18. It is not just a question of their physical being because there can be some well-developed 14 year olds and some ill-developed 20 year olds. We are dealing with both of them in exactly the same way in the legislation.

Mr. Ryan

I second the amendment.

We dealt with this issue at length on Committee Stage yesterday evening. My view is still the same, namely, that in essence there is no difference between Senator Henry's definition and the definition in the Bill. The definition in the Bill is that a woman means a female person. Senator Henry's definition is that a woman means a female person over 18 years of age and a female child under 18 years of age. The definitions are no different because they both encompass females of all ages. It adds nothing to the definition. It created a debate which, as Senator Norris articulated yesterday evening, is good. There was no attempt to camouflage, as I said yesterday evening. It deals with minors and those of all ages.

At least it achieved debate and recognition that it deals with a broad spectrum of female persons. It would have been worthwhile to have included it. The Minister said he sees no difference, but there is a difference under the law between the two groups of people. Most of the legislation we pass in the House is different for minors and adults.

The amendment does not do that.

It points out that there are two different groups. However, I will not press the amendment.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Mr. Ryan

Tairgim leasú a 3b: I leathanach 9, idir línte 26 agus 27, “ciallaíonn ‘broinn' útaras mná gan na feadáin fhallópacha a áireamh” a chur isteach.

I move amendment No. 3b: In page 8, between lines 26 and 27, to insert “‘womb' means the uterus of a woman excluding the fallopian tubes.”.

I was moved to table the amendment. It is always interesting and important to look at the terms chosen to be defined in legislation. It struck me as strange that we have a definition of a woman in legislation but not a definition of a womb. I tabled my amendment because one of the major procedures, which involves the deliberate and direct destruction of an embryo or an unborn human life, is in the case of a woman whose life is threatened by an ectopic pregnancy. My understanding is that there are perhaps 1,000 such procedures carried out in any one year around the country. That is a large number of terminations of pregnancy. It should be clear that those pregnancies and terminations are done of necessity to save the woman's life and do not involve anything other than the removal of the embryo from a woman's fallopian tubes. That caused considerable difficulty for many pro-life people. Modern procedures and techniques mean that damage is not caused to a woman's fallopian tubes and she can have children in the future, which was not the case in the past.

It is an area of considerable concern and, therefore, it seems sensible to introduce a definition which excludes the possibility of ectopic pregnancies having the protection of the phraseology for abortion. I understand and fully accept there is an argument that the language is clear-cut. However, it would be more simple to ensure that an ectopic pregnancy is not regarded as unborn human life after implantation in the womb. Senator Henry informed me that if most medical students were asked to describe the womb, they would be expected to include the fallopian tubes. I see eminent people sitting behind the Minister dissenting, but there is an eminent person behind me who told me the opposite. As the Minister said, politicians make the call. If there is a number of different views among medical practitioners about what we mean by a word, the best thing is to include a definition which makes clear what we mean.

I second the amendment. An ectopic pregnancy is a serious issue. I said most medical students would be expected to describe the fallopian tubes if asked to explain the womb. I remember the lecture we had on this topic and the lecturer was wearing his gown. He put his arms out and told us to look at his body as the body of the womb, his arms as the fallopian tubes and the folds of cloth in between as the round ligament. One can be well taught a long time ago and remember the definitions. That is why I said I thought it would be wise to include it. Ectopic pregnancy is a serious common issue. Unfortunately, the recent report on the confidential inquiries into maternal deaths in the United Kingdom states that eight deaths were due to ectopic pregnancies. It points out that there were 15 such cases in the previous report. It is a common cause of maternal mortality. Senator Ryan's attempt to get clarification is important.

Would there be a problem with the use of methotrexate to deal with ectopic pregnancies? We do not know how it works, but would it be described as working like a medical abortifacient or would it be allowed? It seems to be a useful way to deal with ectopic pregnancies without surgery if the ectopic pregnancy is diagnosed early, which is possible now with scanning techniques. I want to be sure that such a method, which is successful and least invasive, would not be challenged by the legislation.

I sought advice early this morning when the issue emerged at the penultimate stage of the debate on the definition of the womb. The fallopian tubes are outside the womb and have always been described as separate anatomical entities in all obstetric textbooks. There is clearly no difficulty dealing with ectopic pregnancies after this legislation is passed because the section specifically refers to the "intentional destruction by any means of unborn human life after implantation in the womb of a woman".

Mr. Ryan

The Minister has advice and I have advice, but I will not pursue the matter.

Tarraingíodh siar an leasú, faoi chead.

Amendment, by leave, withdrawn.

Amendment No. 5 is an alternative to amendment No. 4 and both may be discussed together by agreement.

Mr. Ryan

Tairgim leasú a 4:

I leathanach 9, líne 44, "dhéanamh." a scriosadh agus "dhéanamh; ach féadfar a chinneadh gurb ionann mainneachtain ag lia-chleachtóir gníomhú ar mhaithe le leas a othair nó a hothair agus mí-iompar gairmiúil." a chur ina ionad.

I move amendment No. 4:

In page 8, line 41, to delete "Act." and substitute "Act; but the failure of a medical practitioner to act in the best interests of his or her patient may be held to constitute professional misconduct.".

We have discussed this at length.

I second the amendment.

My position is unchanged.

I have a concern regarding amendment No. 5. What would happen if a doctor was a member of the Jehovah's Witnesses and he refused to give a blood transfusion? In other jurisdictions people have to give prior notice that they are conscientious objectors and cannot be refused employment on that basis. Notice must be given because hospitals have to be run on the basis that patients will be treated. A scenario could not be allowed to develop where everyone suddenly announced that they were conscientious objectors. If a person is treating obstetric patients they should be obliged to make it clear to their patients that they are conscientious objectors and will not become involved in life-saving procedures. We only ask them to treat mothers whose lives are at risk. The Minister said that this matter will go before the Medical Council, but I do not want a hiatus between the enactment of this legislation and the next time the Medical Council's guidelines are published.

That is precisely the point. We do not want to incorporate all the ethical guidelines of the Medical Council in the Bill because ethics change over time. The ethical guidelines of the Medical Council are not statutory and it is not legally sound to attempt to link them to a criminal statute in the way suggested by the amend ments. I accept the bona fides of those tabling the amendments, but they would, in essence, give the ethical guidelines of the Medical Council the automatic protection of the law despite the fact that those guidelines can change. The last guidelines were published in 1998 and a new text is on the way. Given that they change over time, a permanent construction on them through a constitutional amendment Bill should not be sought. Under the ethical guidelines a conscientious objector is obliged to ensure continuity of care for the patient and to pass the patient on to a team that is willing to treat him or her. That has been long-standing medical practice. The concept of conscientious objection has existed since time immemorial and it is a cherished one irrespective of what side of the argument people are on. People do not want to change it overnight.

One is supposed to refer patients, but I pointed to a case last night where a woman doctor in the west of Dublin refused to refer patients, although the cases were not life threatening. The Medical Council's guidelines do not cover hospitals and I want the Minister to ensure that hospitals are not completely staffed by conscientious objectors. What would happen if everyone decided to be a conscientious objector? Does the hospital not have an obligation to the patients to ensure there will be people there who will carry out life-saving procedures? The Minister is in charge of that area, not the Medical Council. A gap has been left here.

When one is taking up employment in England in hospitals where therapeutic abortions are performed, one can be asked if one will perform such procedures, but one cannot be discriminated against in applying for a job there because one will not undertake such procedures. However, such hospitals must ensure they have people who will carry out therapeutic abortions. I want hospitals here to ensure they have people who will provide life-saving treatment to women because there is nothing that says hospitals must have retain such people.

Tarraingíodh siar an leasú, faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasú a 5.
Amendment No. 5 not moved.

Tairgim leasú a 6:

I leathanach 11, línte 10 agus 11, na focail go léir i ndiaidh "comhalta" i líne 10 agus an focal sin san áireamh go dtí an focal "Rialtas" i líne 11 agus an focal sin san áireamh a scriosadh agus "an Taoiseach" a chur ina n-ionad.

I move amendment No. 6:

In page 10, lines 11 and 12, to delete all words from and including "a" in line 11 down to and including "Government" in line 12 and substitute "the Taoiseach".

We did not debate this on Committee Stage. It is very loose to state that " ‘an order' means an order made by a member of the Government authorised in that behalf by the Government." We do not know if the referendum will take place two months after the Bill has passed in February. Perhaps it will, but it may not. If there is a change of Government within the 180 days allowed, I will not be happy and Fine Gael Party members will not be happy if the member of the Government referred to is an Independent or a Member who does not share the views we have debated here. I would like the definition to be tightened up by requiring that the order be made by the Taoiseach. The definition is too loose as it stands and it goes against the trend of what we have been debating.

I second the amendment.

I am perplexed by this amendment and I do not see any need for it. The Senator is saying that the Taoiseach should sign the orders rather than the Minister. Surely it is up to the Minister responsible for the specific area and that is currently the Minister for Health and Children. The reason we do not refer to the Minister for Health and Children is that the title of that Minister might change. The Minister for Health and Children has to be authorised by the Government to make the regulations that go before the Oireachtas. The regulations then have to affirmed by the Oireachtas. This amendment may have been tabled prior to Committee Stage in the Dáil as people may not have realised that I intended to bring forward an amendment requiring positive affirmation of the orders by both Houses. That excludes the need for the amendment.

I agree with what the Minister said, but section 5 of the Second Schedule does not specify that the orders must be signed by the Minister for Health and Children. I would much prefer it to refer to that Minister or to the Taoiseach.

The title of the Minister might change.

We would prefer to have it tightened up.

Tarraingíodh siar an leasú, faoi chead.

Amendment, by leave, withdrawn.

Acting Chairman

Amendments Nos. 7 and 8 are related and may be discussed together by agreement.

Tairgim leasú a 7:

I leathanach 11, idir línte 20 agus 21, an méid seo a leanas a chur isteach:

"(5) (a) Is cead don Uachtarán, tar éis comhairle a ghlacadh leis an gComhairle Stáit, aon ordú a dhéanfar faoin Acht seo (seachas alt 7) a dheimhniú mar ordú bailí ar comhréir le mianta an phobail arna gcur in iúl i reifreann, agus beidh deimhniú an Uachtaráin críochnaitheach dochloíte.

(b) (i) Is cead don Uachtarán, tar éis comhairle a ghlacadh leis an gComhairle Stáit, aon Ordú lena mbaineann an tAcht seo (seachas alt 7) a chur faoi bhreith na Cúirte Uachtaraí féachaint an bhfuil an t-ordú sin nó aon fhoráil nó aon fhorálacha áirithe den ordú sin ar comhréir le mianta an phobail arna gcur in iúl i reifreann.

(ii) I ngach cás den sórt sin ní foláir an t-ordú a chur faoi bhreith na Cúirte lá nach déanaí ná an seachtú lá tar éis an dáta a thairgeann an Taoiseach an t-ordú sin don Uachtarán chun a lámh a chur leis.

(iii) Ordú ar bith a chuirtear faoi bhreith na Cúirte Uachtaraí faoin Acht seo, ní cead don Uachtarán é a dheimhniú go dtí go dtugann an Chúirt a breith.

(iv) Ní foláir don Chúirt Uachtarach, cúirt ina mbeidh cúigear breitheamh ar a laghad, gach ceist dá gcuireann an tUachtarán faoina breith faoin Acht seo a bhreithniú agus, tar éis éisteacht le hargóintí ón Ard-Aighne nó thar a cheann agus ó abhcóidí a thoghfar ag an gCúirt, ní foláir di a breith ar an gceist sin a thabhairt sa chúirt go poiblí chomh luath agus is féidir é agus, ar aon chuma, lá nach déanaí ná seasca lá tar éis an cheist a chur faoina breith.

(v) An bhreith a bheireann an tromlach de bhreithiúna na Cúirte Uachtaraí, sin í breith na Cúirte chun críocha an Achta seo agus is é a chraolfas an bhreith sin ná an duine sin de na breithiúna sin a cheapfaidh an Chúirt chuige sin, agus ní cead tuairim ar bith eile, ag aontú nó ag easaontú leis an mbreith sin, a chraoladh ná ní cead a nochtadh tuairim ar bith eile den sórt sin a bheith ann.

(vi) I gcás aon ordaithe a chuirtear faoi bhreith na Cúirte Uachtaraí faoin Acht seo, más é breith na Cúirte maidir le haon fhoráil de nach bhfuil sí ar comhréir le mianta an phobail arna gcur in iúl i reifreann, ní foláir don Uachtarán diúltú an t-ordú sin a dheimhniú.

(vii) I ngach cás eile ní foláir don Uachtarán an t-ordú a dheimhniú chomh luath agus is féidir é tar éis an lae a bheireann an Chúirt Uachtarach a breith.

(viii) Orduithe a bheartaítear a dhéanamh de bhun fhorálacha an Achta seo (seachas alt 7), leagfar faoi bhráid Thithe an Oireachtais iad agus ní thiocfaidh siad in éifeacht go dtí go ndéanfar iad a cheadú le vóta i ngach Teach acu sin.”.

I move amendment No. 7:

In page 10, between lines 21 and 22, to insert the following:

"(5)(a) The President after consultation with the Council of State may certify any order made under this Act (other than section 7) to be a valid order in keeping with the wishes of the people expressed in referendum, and his certificate shall be final and conclusive.

(b)(i) The President may after consultation with the Council of State refer any order to which this Act applies (other than section 7) to the Supreme Court for a decision on the question as to whether such order or any specified provision or provisions of such order is or are in keeping with the wishes of the people expressed in referendum.

(ii) Every such reference shall be made not later than the seventh day after the date on which such order shall have been presented by the Taoiseach to the President for his signature.

(iii) The President shall not certify any order the subject of a reference to the Supreme Court under this Act pending the pronouncement of the decision of the Court.

(iv) The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Act for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference.

(v) The decision of the majority of the judges of the Supreme Court shall, for the purpose of this Act, be the decision of the Court and shall be pronounced by such one of those judges as the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed.

(vi) In every case in which the Supreme Court decides that any provision of an order the subject of a reference to the Supreme Court under this Act is not in keeping with the wishes of the people expressed in referendum, the President shall decline to certify such order.

(vii) In every other case the President shall certify the order as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced.

(viii) Orders proposed to be made pursuant to the provisions of this Act (other than section 7) shall be laid before the Houses of the Oireachtas and shall not come into effect until they are approved by a vote in each such House.”.

We have debated backwards and forwards the unprecedented nature of the revocation in the Bill of the President's right to refer to the Supreme Court. As the Minister stated last night, it is unprecedented outside the Good Friday Agreement. It is the kernel of our objection to the Bill. We could talk forever about it, but I said enough yesterday, as did other Members. This goes to the heart of the powers of the Oireachtas and the President. We still feel very strongly about it.

I second the amendment. It is essential it is included in the Bill because what is being proposed is unprecedented in terms of the legislative process. There are two Bills rolled into one in this procedure. The second one, included in the Second Schedule to the Bill under discussion, is separate and should stand alone. However, it is has been rolled in with the Bill under discussion to give it the type of protection a constitutional amendment would receive under the Constitution. The reality is that this legislation will be protected by the Constitution and, despite this, is not being afforded the normal process laid down in the Constitution for consideration of a Bill. The five Stages of the Bill have been debated here and in the other House, but it has been excluded from being referred to the President who, consequently, will not have the power to refer it to the Supreme Court. The amendment attempts to reintroduce the constitutional power of the President in this case. It is vital it remains.

The Minister suggested in the course of the debate yesterday that this was not unprecedented and cited the Good Friday Agreement as a previous example. The Agreement is not statute law and a declaration rather than a Bill. It is erroneous to use it as an example. In the interests of protecting the Constitution, preserving the powers of the President and protecting the Bill from constitutional challenge, something to which it is open on a number of fronts, we should accept this amendment.

If the Bill in the Second Schedule is put to the people in a referendum and they pass it, it will form part of the Constitution. The people will then have decided, and for the President or the Supreme Court to interfere with that would be ludicrous. It is important this opt-out should remain because the people will have made a decision and, while a rejection of the constitutional amendment would mean the legislation would not form part of the Constitution, if it were accepted, for the Oireachtas to involve the President or the Supreme Court would show mistrust of the people's decision. It would be con trary to the meaning of a constitutional amendment. I understand the Senators' motivation, but this is a sensible and necessary provision to ensure the voice of the people is not eroded or diluted.

I support the amendment. I made the point which I will not labour that there is no doubt the Bill has serious implications for the Constitution and threatens the withdrawal of certain fundamental rights. My legal advice is that it contravenes Article 26 of the Constitution, which deals with the President's right to refer a Bill to the Supreme Court to see if it is repugnant to the Constitution, and thereby undermines it. The President will not be allowed to refer the legislation to the Supreme Court to test its constitutionality. This negates one of the most important powers of the President as defined in the Constitution. If enacted, the legislation will not be susceptible to challenge in the courts which, again, denies a key democratic right enshrined in the Constitution.

This amendment does not deal with the debate we had last evening. It is separate from that about referral of legislation to the President. It deals with the certification and validation of ministerial orders. The amendment seeks to ensure ministerial orders keep faith with whatever decisions the people make. It is unnecessary and takes matters to a level which could potentially involve the President, the Council of State and the Supreme Court in vetting ministerial orders. The safeguard of a positive affirmation by the House is sufficient in terms of ministerial orders which would be made. Senator O'Donovan made the point that this is not a diminution of the President's powers. It is erroneous to suggest it is. The President's powers remain in terms of being the guardian of the Constitution once the Constitution has been decided upon by the people. If the people agree to the insertion of articles into the Constitution, they form part of it. The Supreme Court does not decide what goes into the Constitution and has never attempted to do so. Neither has the President.

We debated this matter yesterday and are aware that it involves ministerial orders, but referral of the legislation to the President is still ruled out. I do not understand the reason that is being ruled out simply because ministerial orders are involved. We are aware they are. They form part of the most contentious aspects of the Bill, which Senator Henry highlighted, concerning approved places, the definition of "woman" and so on. There is no reason to believe any of these areas would not be problematic in future. I believe they will. It has never been done before that we would bypass the President. We are eroding her powers.

Tarraingíodh siar an leasú, faoi chead.

Amendment, by leave, withdrawn.
Níor tairgeadh leasú a 8.
Amendment No. 8 not moved.
Glacfar an Bille chun an breithniú deiridh a dhéanamh air.
Bill received for final consideration.
Cuireadh an cheist: "Go rithfear an Bille anois."
Question proposed: "That the Bill do now pass."

Mr. Ryan

The Labour Party and I oppose the proposal to pass the Bill, not because of any deeply felt liberal instincts I might have – I hope they would apply to more practical matters than this – but because this is the wrong way to deal with the issue. If even one of the points made on this side turns out as we envisaged as distinct from the advice the Minister received, the house of cards will collapse in a considerable mess. We must remember in the context of the Constitution that this measure will be out of our hands once the people make a decision and it will be interpreted by the Supreme Court. It will require just one interpretation by that court of one of the many issues with which we believe there are ambiguities, for us to be in a greater mess and with legislation we cannot amend other than by a further constitutional referendum.

That is the reason it is my party's view – has been for some time and on which we are open to the accusation that we talked and did nothing – that there is no virtue in doing something if it makes the position worse. This proposal could end up doing this. I am not getting involved in political issues. This became a political issue because someone agreed to do something. It was a wrong decision. This legislation will not solve the problems but create them if any of our points are dealt with in a manner other than that which the Minister says they will be dealt with. It is not an issue appropriate to the Constitution. I will, therefore, vote against the passing of the Bill.

Acting Chairman

The House has agreed to suspend the sitting from 1 p.m. to 2 p.m. Is it agreed to continue?

I propose, with the agreement of other Senators, to continue.

Acting Chairman

Is that agreed? Agreed.

As the Bill is constitutionally flawed, it would be irresponsible of us, as legislators, to vote in favour or support it in any way. On all Stages we have made a strong case on the reasons it should not be presented in its current form. If passed, within 12 months it will be challenged on a number of fronts. Given that it is so flawed, it is astounding that any Attorney General or Cabinet would present it to the Houses of the Oireachtas. It attempts to do something in relation to legislation which is unprecedented since the establishment of the 1937 Constitution.

Article 20 of the Constitution is the only one which precludes the House from amending a money Bill. In regard to the reference of Bills to the Supreme Court, Article 26 applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas, other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution, or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of the Constitution. In relation to that article, the Bill is violating a fundamental principle. In violating that principle it is violating the anchor and cornerstone on which our democracy and the Legislature are founded.

Acting Chairman

This is Fifth Stage, not Second Stage.

I am speaking on the Bill. This is unprecedented legislation. Never in the history of either House has something been done in this manner. Two Bills are rolled into one. The Second Schedule to the Bill should be stand-alone legislation for consideration by the Houses of the Oireachtas when the amendment to the Constitution has been passed. The Minister has clearly indicated to the House that the only section of the Bill that will be put to the people is Article 6.1º of Part I of the First Schedule. We are now legislating for a referendum. This is the only section of the Bill that will be put on the ballot paper for consideration by the people and on which they will vote. Senator O'Donovan, the Minister and others have repeatedly stated—

Acting Chairman

This is Fifth Stage.

—that the entire Bill will be down for decision by the people. That is a false claim. The only section of the Bill on which the people will decide is the following:

Notwithstanding the foregoing provisions of this Article, Article 40 of this Constitution shall be amended as follows:

The following subsections shall be added to section 3 of the English text:

"4º In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002.

5º The provisions of section 2 of Article 46 and sections 1, 3 and 4 of Article 47 of this Constitution shall apply to any Bill passed or deemed to have been passed by both Houses of the Oireachtas containing a proposal to amend the Protection of Human Life in Pregnancy Act, 2002, as they apply to a Bill containing a proposal or proposals—

Acting Chairman

Please, Senator.

We are on Fifth Stage and about to say whether we support the passage of the Bill. As a legislator, I want to be free to outline the reasons the Bill should not be passed. It is unprecedented. For political purposes, the Government is presenting a Bill to both Houses of the Oireachtas and contravening all the procedures, legislative and constitutional, that normally apply to legislation being put through the House. It is an affront to the Constitution and will be a source of embarrassment in the future. As legislators, we should not stand over this, and should be allowed to articulate our concerns on the issue. It has been argued repeatedly that it will be a matter for decision by the people. Amendments were introduced in an attempt to bring back into place the position of the President in relation to orders in relation to which, I understand, there were difficulties. The reality is that the Bill diminishes the powers of the President, usurps those of the Oireachtas and acts in an unprecedented and unconstitutional manner.

Senator Taylor-Quinn has more than adequately outlined the constitutional position to which I have referred already in debates during the past ten weeks. I concur with her that bringing forward a Bill that undermines the Constitution is not something of which any of us could be proud. I regret that it ever came before the House, particularly in its present from. I also regret that, following its passage, there will be the potential that women's rights will be reduced. I strongly regret the exclusion of a provision to deal with suicide as a threat to the life of a mother. It was useful that Senator Henry attempted to make a distinction between a child and a woman. By means of the Bill we are criminalising suicidal children. I regret that this has come to pass.

This unnecessary Bill is not compassionate towards women in crisis pregnancies. It denigrates them. There is no consensus on it. If and when it is put to the people, it will be defeated, rightly so, because Irish women will not stand for their rights being abused in this way. I have long since had a commitment to women's rights and will not allow Irish women to be denigrated through the passage of the Bill which I will oppose tooth and nail. I am convinced that the people will see through what is a cynical, political exercise designed to placate the four Independents propping up a Government that I hope will be out of office as soon as possible.

I thank the Minister and his officials for giving so much time and attention to the Bill in this House. We went through it as well as poss ible. From what I have said, the Minister will be aware I cannot possibly support the Bill and regret it is being put before the people to be inserted into the Constitution. Anything like this is not suitable for insertion into the Constitution. I have pointed out what I regard as errors and if I am right on even a small part of one error, we will have problems in the Supreme Court and there will be no method of redressing it except by another referendum.

What the people will be shown and on which they will vote is limited. While it will be hard, I intend to explain the difficulties. The problem with the Bill lies in the detail in which there is danger for women and difficulties for doctors, neither of which will be further addressed before the referendum, but which will be addressed by the Supreme Court very rapidly if the amendment is passed. I certainly hope it is not.

I will not go over the ground covered by Senator Taylor-Quinn because she has the benefit of a degree in constitutional law. I am disappointed that, despite our staying almost all night in the House in a genuine effort to tease out issues and detail outside the constitutional aspect in relation to women and how they will be affected, not one amendment was accepted throughout Committee Stage here or in the other House – at least in this House.

In the other House they were not in order.

The amendments in the other House came through the Seanad. There was a second chance on the amendments for the Minister to comment – there was no time in the other House because of the guillotine aspect of Committee and Report Stages. It was not so much the guillotine but the fact that the Bill was not brought back to the floor of the House. I will not go through that but there was great annoyance over the shortness of time given to the debate in the other House.

We have always seen ourselves in the Seanad as being reflective and as taking time with legislation. I thought the Minister would take the opportunity to make improvements. He listened but it was as if, no matter how he felt, the amendments were not to be accepted. I believe he felt moved by certain amendments proposed here and would have taken them – I am convinced that last night his body language showed that he was sympathetic to our suggestions.

That is honestly how I saw it, yet here we are now at the end of the debate and we are taking this to the people. Who will explain the constitutionality aspect to the public? I do not know who will explain to women the human life issues debated here. At the end of the day it will come down to the issue of whether a person is pro-abortion or anti-abortion. We might as well have not debated it here and that is what saddens me. We could have made it worth our while to put genuine legislation before the people. It would have been legislation that would protect the rights of the mother and it would have looked at the issues that led to this legislation in the first place – the X and C cases. Those have now effectively been written out as if they never happened.

We now have to try to explain this to the people who will vote on the matter in two months' time. There has not been a word throughout the debate as to how the people will know and learn about the issues. They will not have the time. I am sure we will be back again within a couple of years in relation to a constitutional referral.

Another point is the balancing of the rights of the mother and child. I agree with Senator Taylor-Quinn. I cannot understand the rolling of the two into one. That will be extremely confusing to people. They barely know what Article 40.3.3º is and now there is an Article 40.3.4º and they have to be read harmoniously. The language being used is not people friendly. It is a sad day for us that we spent so much time on the issue and it has come to nought.

I did not speak on Second Stage of this Bill but it is important not to let it pass through the House without making some comments on the Bill in its entirety. What saddens me most about the debate in this House is the wriggling that was done by members of the Opposition who are trying to find reasons not to support the Bill.

Acting Chairman

This is not Second Stage. We are on Final Stage now.

On the Bill, people have talked about the difficulty—


Mr. Ryan

I take great exception to what Senator Cox has said.

Acting Chairman

Order, please.

Mr. Ryan

That is not what happened here. The Minister did not suggest that, even though his patience was tested. Senator Cox should cop on.

Acting Chairman

Senator Ryan, Senator Cox is on her feet.

Mr. Ryan

Senator Cox is very good at coming in and talking about issues when they are over. We have heard it twice from her already. It is time she learned a bit of sense.

In the arguments put forward for not passing this legislation, Senator Quinn said the voice of the people was not heard. The voice of the people is reflected in the Dáil and Seanad and this legislation has passed through those voices. Are we now saying that we do not have confidence in the ability of Members? The question here is whether we want to have a say in the solution to the difficulties that face the women and children of this country. If we want to allow legalised abortion, we will not support the referendum.

Mr. Ryan

That is outrageous.

Acting Chairman

Senator Ryan, Senator Cox is in order.

We had a very amicable debate and now we have the contention.

Mr. Ryan

There is a man beside me who has campaigned on this issue for 20 years and did not say anything like that in his life.

Acting Chairman

Senator Ryan must sit down.

Mr. Ryan

I will not sit here and listen to a Member of this House, who said nothing during the debate, grab silly headlines for herself to fight the election in Galway West. I will not stand for that.

Acting Chairman

Senator, please let there be order in the House. Every Senator has the right to a speech.

Mr. Ryan

The Chair should defend us and tell the Senator to behave herself or I will defend myself by making whatever protest I need. It is absolutely outrageous.

Acting Chairman

With respect Senator, I will do so accordingly, but Senator Cox has the right to speak. Senator, please respect the House.

Mr. Ryan

I respect the House but I am not going to stand here and allow a person who said nothing on this debate to score political points for her own political advantage in Galway West on an extremely sensitive issue.

Acting Chairman

The Senator should please resume his seat.

Mr. Ryan

That man there had the decency not to say anything like that in 20 years.

Acting Chairman

I ask the Senator to resume his seat. Thank you, Senator. Senator Cox to continue.

Sorry, may we respectfully ask Senator Cox to withdraw those remarks?

Acting Chairman

The Senator may ask.

I believe I have the right and entitlement to come into the Chamber to put my views. I have no intention of upsetting or insulting anyone in the Opposition.

Acting Chairman

Thank you.

Mr. Ryan

The Senator does it every—

Acting Chairman

Order, please, Senator Ryan. I shall have to call the Cathaoirleach.

Mr. Ryan

How dare the Senator say that those who do not agree with her are in favour of abortion? How dare she say that?

Acting Chairman

Senator, in fairness I have to call the Cathaoirleach. He has the right to say—

Mr. Ryan

Either Senator Cox should cop on or the Chair should call the Cathaoirleach. I am not going to stand here and listen to this Fianna Fáil Senator, in the presence of the Minister, say things that are unworthy of the Minister who did not suggest any such thing. She is fighting the Galway West general election and it is unworthy.

Acting Chairman

The Senator should please resume his seat. What he has said is noted.

A number of the remarks that have been made by Senator Ryan are personally insulting to me and to the Fianna Fáil Party. It was not my intention to insult any Member of the other House and I hope they will take that as I mean it. It is my intention to put forward my particular—

Acting Chairman

We are on the Final Stage of the Bill.

I understand that. It is my intention to put forward my view. This matter lies with the people. When it comes in front of the people they will choose to vote in favour of the referendum or against it. Voting in favour of the referendum is accepting the law that has passed through the Houses of the Oireachtas, while voting against the referendum is not to accept the law and to leave the situation—

Acting Chairman

Other Senators want to be considered. This is Final Stage.

I have been interrupted and I am entitled to put my views. This is a decision of the people. It is a difficult decision and is not something on which I should be rushed and not allowed to speak. It was said that this issue would confuse the people. I do not believe that as it is very clear. The legislation is about making a choice and about being involved in the development of a solution. If a person wants legalised abortion he or she should vote one way and if a person wants to—

That is despicable. The Senator should be ashamed of herself.


That is my view.

Mr. Ryan

The Senator should be ashamed of herself.

Senator Ryan should bear with me for a moment. It is not in order for Senator Cox to make a Second Stage speech on the question "That the Bill do now pass." Senator Cox, in any comment she wishes to make, must only address the contents of the Bill.

She is a cheap opportunist and should be ashamed of herself.

Senator Cox's speech on the question "That the Bill do now pass" is too wide-ranging and is a Second Stage speech.

On a point of order, I respectfully requested that Senator Cox withdraw the erroneous, hurtful and slanderous remarks she made.

I did that. That is not fair.

I am sorry, but I did not hear her do so and I was waiting to hear it. I want her to totally withdraw those remarks. I resent them completely. Senators who have worked on this Bill and brought it through the House have not been insulted by any other Member. I would like the Senator to withdraw those remarks.

The Senator has made her point.

I reiterate that I had no intention of coming in here and being offensive to anybody. I said that a moment ago. I am sorry.

That is not the same as withdrawing the remarks.

I did not hear the remarks Senator Cox made but I am sure that if Senator Keogh feels the remarks should be withdrawn, Senator Cox will withdraw them. If some remarks were made which were offensive—

If we want to start going down that route—

No, I want to bring this—

Some Members of the House made remarks about me. Someone called me a political opportunist. If Members want to talk about negative remarks—

I ask the Senator to resume her seat. I think she has made the points she wished to make.

This was a good, sincere and honest debate. Nobody questioned anybody's motives and the Minister treated the House with great respect. I find it sickening that a Member who did not participate in any Stage of the debate on this Bill should come in now and throw a blanket smear on all those who oppose it.

That was not my intention.

It does not matter what the Senator's intentions were; her words are on the record. She can either do the honourable thing and withdraw the words or leave this smear hanging in the air. She has done herself no credit today. She should be ashamed of what she did.

I certainly am not ashamed of what I did. The Senator made remarks that equally ought to be withdrawn.

I made a contribution on Second Stage and I only want to say a few words. I thank Senator Ryan for his kind remarks. I have been waiting a long time for such legislation to come before the Houses and for this issue to be put before the people in a referendum, such as the one proposed.

I congratulate the Taoiseach, the Minister and the members of the committee who brought this about. They have done an excellent day's work. This is an excellent Bill and I believe the referendum that will be put to the people will be passed.

I hope a balance will be brought into this debate given that it is concluding. Tensions appear to have erupted, which is regrettable.

I welcome the fact that we have reached this stage. I sat on the committee that produced a 700 page document. There were differences of opinion from different shades of the political divide and we heard evidence from medical experts, psychiatric experts, etc. A charge was made that some of this work was rushed through, but that is not the case. A great deal of thought and time was devoted to it. A Cabinet sub-committee was set up and chaired by the Minister. I hope that when this issue is put to the people, there will be constraint in the remarks made by Members on all sides of the House.

I compliment the Senators who contributed to the debates on all Stages of the Bill. Many of the points made by Senators Ryan, Henry and others were balanced and fair. We had exchanges, but there was no rancour.

Let there be no rancour.

There should not be.

As spokesperson for Justice on this side of the House, and irrespective of who will be on the winning or losing sides, I caution that adjectives used in the heat of the moment should be more constrained.

The issue will be put to the people. We have had a good and lengthy debate. The House sat last night until nearly 4 a.m. I compliment the Minister on dealing with the Bill in great detail. He was balanced in his approach. While listening to some of his remarks, I wondered if he was a medical doctor in addition to being the Minister for Health and Children. While I do not necessarily agree with the points made by Members, I respect them. I will forgive Senator Taylor-Quinn for calling me Senator Donovan rather than Senator O'Donovan. I respect the points Senators opposite made and I ask them to respect the view of Senators on this side of the House, particularly the views of a Senator who has given his life to the concept of having an abortion referendum. He has seen the fruits of his work and I respect that type of commitment. He has committed the last 25 years of his life to this campaign. Some people in this House and outside it may not agree with him, although I am very close to his views.

I welcome the passage of this Bill and I compliment all those involved. I hope when the matter goes forward from here that the debate among politicians and the media, whether in the press or on radio and television, will be balanced and fair and that there will be no rancour in terms of the use of adjectives to condemn people personally. It is fine to condemn a party. I can condemn the Fine Gael Party or it can condemn the Fianna Fáil Party, but it would be regrettable if some Members were to condemn me for my personal views. I hope that will not occur as we face a debate that will not be Utopian. Even if this measure is passed, after it is put to the people in a referendum, I do not think we will be clapping ourselves on the back and saying "well done". If it is rejected by the people, it should be acknowledged that we dealt with the issue by way of referendum.

I said on Second Stage that we will not have another opportunity during my lifetime, irrespective of my political future, to put this issue to the people in a referendum, regardless of whether it is passed or rejected. This is a last ditch effort. One Senator mentioned that this Bill is a result of the Fianna Fáil-PD coalition Government responding to a demand from the four Independent Deputies. That is an unfair comment. When this document was being prepared, 110,000 sub missions were made. Evidence was given by a broad spectrum of people, ranging from medical experts to representatives of the various religions. It is unfair to pin the proposed referendum on a demand from the four Independent Deputies. This was a Government decision, over which the Taoiseach stood. We are delivering on a demand that has existed for the past 20 years.

Most members of the all-party Oireachtas committee believed that the current position, whether one was on the left or took a more conservative view, was unsatisfactory. The proposed referendum may not be the ideal way to deal with this issue – it may not be Utopian – but, like the song, it is as near to perfect as one will find.

On a point of order, if any of the remarks I made to any individual on the other side has caused personal insult or injury, I withdraw them categorically. It was never my intention to make either a political statement or to be a political opportunist. I felt it was important to put my personal view on the record. I was unable to participate in the Second Stage debate as I was out of the country last Friday. I would have done so if I had been here. I never intended to introduce a level of rancour to the debate. I would not do that to any of the Members on the other side of the House whom I respect. I fundamentally disagree with a number of points they made. However, that does not mean that I do not accept their validity and the value of making them. If I said anything that upset the Chair or caused a difficulty, I am sorry. I certainly did not mean to cause upset to any Member on the other side of the House.

I thank Senator Cox.

Last night was probably one of the finest times I have spent here during my short period here. The Minister stuck it out from 11 a.m. yesterday and the spokespersons for the different parties teased out the issue. There were times last night when I wondered about the real meaning of language. There was one surreal moment when Senator Taylor-Quinn took us on a scenic trip around Loop Heap and Carrigaholt and the problems that occur there.

The offer still stands.

I thank the Members, the Minister, the Cathaoirleach and his office for the support and help they gave us during the debate.

Before I call the Minister, did Senator Manning wish to add something?

I wish to say I was intemperate a few moments ago. I accept that Senator Cox did not mean to say what she said, but the effect of her comments was to slander the entire other side of the debate by saying that those who opposed the referendum were in favour of legalised abortion. That was a terrible statement to make.

Senator Cox has withdrawn that remark.

She has withdrawn it and I happily tender to her my apologies for any of the names I called her. I withdraw all of them.

Mr. Ryan

May I do the same? All of us lost our cool to some extent and I apologise if I made remarks I should not have made.

I am delighted that the Christmas spirit has returned to the Chamber.

One man who took an active part in this debate over the years was the former Senator Eoin Ryan. I regret to say he is very ill today and I wish him well. I am sure all my colleagues will join me in those wishes. He was a most splendid gentleman.

I thank the Cathaoirleach, his office and the very efficient chairpersons who oversaw the debate. My colleague from Cork, Senator Cregan, was one of them and I thought the eye contact between him and Senator Taylor-Quinn was worth capturing.

We had a very good debate. We accepted amendments in the other House, but it is a very complex issue. People have said this is somehow a cynical political exercise, but it is not. I chaired the departmental committee for a year and I often thought the easy, cynical thing to do would be to avoid dealing with the issue. To be fair, the Taoiseach has a strong personal commitment to dealing with the issue. He said that even before the general election and the election of any of the Independents. Some of the Independents have very strong views on the issue, but the Taoiseach made his commitment clear on coming into Government. A process was put in place involving the Green Paper and the Oireachtas committee, which took a considerable amount of time to deal with a range of public submissions. Judgments were made in terms of how we have balanced this particular set of proposals.

I have said from day one that I never anticipated unanimity on the issue and there are views on both ends of the spectrum that differ from what we have brought forward. I anticipated that and I defy any group of politicians to come up with a resolution that would enjoy unanimity. We have made a particular call on the balances involved and in that context we commend them to the people. I thank all the Senators who contributed to the debate and for the good spirit that informed it. I can safely say it is a debate I will not forget in a hurry.

Cuireadh an cheist.

Question put.

Bonner, Enda.Callanan, Peter.Chambers, Frank.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.

Glynn, Camillus.Hanafin, Des.Kiely, Daniel.Lanigan, Mick.Leonard, Ann.Lydon, Don.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.Ó Fearghail, Seán.Quill, Máirín.Walsh, Jim.


Caffrey, Ernie.Coghlan, Paul.Coogan, Fintan.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Jackman, Mary.Keogh, Helen.

Manning, Maurice.Norris, David.O'Dowd, Fergus.O'Toole, Joe.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Jackman and Ryan.
Faisnéiseadh go rabhtas tar éis glacadh leis an gceist.
Question declared carried.